VERSIÓN
EN ESPAÑOL DE ESTA PÁGINA
TABLE OF
CONTENTS
OF
THE LIMITATIONS TO FUNDAMENTAL
RIGHTS
JOAQUÍN BRAGE CAMAZANO
TABLE OF CONTENTS
FOREWORD (Prof. Dr. Francisco Fernández Segado)
INTRODUCTION
I.-
GENERAL CONSIDERATIONS
II.- THE
LIMITATIONS TO FUNDAMENTAL RIGHTS AS A GAP IN THE SPANISH DOGMATIC THEORY.
JUSTIFICATION AND
DELIMITATION OF THE PRESENT RESEARH
III.- METHODOLOGICAL LEGAL CONSIDERATIONS
FIRST CHAPTER
I.- THE
FALLACY OF THE FUNDAMENTAL RIGHTS AS ABSOLUTE RIGHTS
1.- The relativity of the fundamental rights
2.- Exceptions?: does any absolute fundamental right
exist?
II.- SHAPE, LIMITATION
AND MATERIALIZATION OF THOSE
FUNDAMENTAL RIGHTS
1.- The shape of the
fundamental rights: the outstanding legislator's role
2.- The execution of the
fundamental rights as combined task of shape and limitation of the same ones
(Häberle). Execution’s or
realization’s theory
3.- The
distinction between limitation and shaping of fundamental rights
III.- CONCEPT, CLASSIFICATION AND LEGAL EXAMINATION STEP BY STEP OF
LIMITATIONS TO FUNDAMENTAL RIGHTS
1.- Concept and
terminology
2.- The classifications of the
limitations to fundamental rights
A) Direct and indirect constitutional limitations
B) Stricto sensu inherent and
external limitations (explicit and implied or stricto sensu inherent
limitations)
C) Limitations of the guarantee and explicit limitations
D) Material, formal, of general
laws and implicit limitations
E) General, specific and relative limitations to the exercise of the
right
3.- Method of legal consideration
step by step
4.- Special reference to the
"definition" or normative scope of fundamental rights. Wide and
narrow conceptions
A)
The normative scope, or "definition", of fundamental rights
CHAPTER SECOND
THE LIMITATTIONS TO FUNDAMENTAL RIGHTS IN THE
GERMAN CONSTITUTIONAL LAW
I.- THE LOGICAL POSSIBILITY OF
THE RESTRICTION OF FUNDAMENTAL RIGHTS IN THE GERMAN LEGAL LITERATURE AND
CASE
LAW
II.- CONCEPT OF LIMITATIONS TO
FUNDAMENTAL RIGHTS
III.- THE LEVELING STEP BY STEP OF THE LEGAL CONSIDERATION OF
FUNDAMENTAL RIGHTS
1.- The technique of the legal
consideration according to a stepped leveling. Kinds
2.- Doubtful cases of the
aplication’s scope of the technique of leveling
3.- The leveling technique as a
technique of application step by step
IV.- THE DEFINITION OR NORMATIVE
SCOPE OF FUNDAMENTAL RIGHTS
1.- Concept
2.- Conceptions on the normative
scope of rights
V.- THE INTERFERENCE INTO
FUNDAMENTAL RIGHTS
1.- Classic concept
2.- The extension of the concept
A) Rejection to the
classic concept and direction of the extension; tipology
B) Problems that spring
from the extension
VI.- LEGAL SOURCES OF THE LIMITATIONS TO FUNDAMENTAL RIGHTS
1.-
Limitations by higher rank norms than the Constitution? In special, the
Community Law
2.- The
prohibition of limitations by lower rank norms than Statutes
3.-
Limitations through constitutional norms or principles
A) Direct constitutional
limitations
a) Inherent limitations in strict sense
A.'- External and internal theories of
the subjective rights, especially of the fundamental ones
B.'- Variety of conceptions
C.'- Favorable position in the doctrine and the case-law
D' - Contrary Position in the legal literature and in the
case-law
b)
(Direct) explicit limitations or limits with constitutional basis
A.'-
Constitutional regulation
B.'- General
legal regulation
c) Strict inherent
(implied) limitations
A.'-
Applicability
B.'- Nature of
these limitations
C.'- Sources
of these limitations
a.'- Diverse scholarly
interpretations
b' - The position of the German
Constitutional Court and of the majority of scholars
a) TCFA
and the majority of scholars
b)
Critical position in the scientific literature and dissenting opinions
B) Constitutional indirect limitations: Limitations "prescribed by law"
and "in accordance with the law"
C) Limitations in special
cases
a) The
collision of fundamental rights
A.'- Concept
B.'-
Functional leveling of competences
C.'- Judging
method in the case-law
b) The concurrence
of fundamental rights
c) Restriction to
the fundamental rights in case of necessity
d) Relationships of
special subjection
A.'- Concept
and meaning
B.'- Function
C.'- Constitutional regulation
D.'- Restrictions to
fundamental rights in the relationships of
special subjection
e) Misuse of
fundamental rights against the democratic order of liberty
f) Dispossession
of the fundamental rights
g) Waiver of a
fundamental right
VII.- REQUIREMENTS OF THE LIMITATIONS TO
FUNDAMENTAL RIGHTS
1.-
Formal requirements
a) The statutory basis as a
juridical-constitutional technique for the restriction of the fundamental
rights
A.'- Sorts, origins and meaning
B.'- Cautions against the
legislative and theory of the esenciality
C' - The scope of free legislative shape for the restriction of
fundamental rights and the requirement of
general conformity to the
Constitution and to Law
D.'- Statutory basis and
hierarchical position prima facie of fundamental rights
b)
Exceptional character of the limitations by executive and judicial powers
c) Legal basis from qualified and simple statute for the restriction of
the rights
B)
Prohibition of restrictions for individual cases by the Legislative
C) Duty to mention or name the
affected right in the restrictive statute
2.-
Material requirements
A) Principle of proportionality
a) Concept, grounds and
function, contents, application’s scope and control density
A.'-
Concept
B.'-
Grounds and function
C.'-
Contents
D.'-
Application scope and control density
b) The threefold test of
proportionality: appropriateness,
necessity and proportionality in strict sense
c) Especially, the balancing as
contents of the subprinciple of stricto sensu proportionality
A.'-
Concept
B' -
Parameter and judging method
B) Essential
contents
a) Origin and meaning
b) General conceptions in the legal literature and position of the TCFA
THE LIMITATIONS TO
FUNDAMENTAL RIGHTS IN THE SPANISH CONSTITUTIONAL LAW
I.- INTRODUCTION
II.- WHICH ARE THE FUNDAMENTAL
RIGHTS ARE IN OUR CONSTITUTIONAL SYSTEM? DELIMITATION
III.‑ NORMATIVE
SCOPE OR "DEFINITION" OF FUNDAMENTAL RIGHTS AND ITS INHERENT, IMPLIED
OR INTERNAL LIMITATIONS
1.‑ Function of the definition or
normative scope in the legal consideration step by step of the limitations to
fundamental rights
2.‑ The relevance of the wide and
narrow conceptions of the definition or normative scope of fundamental rights
A.‑ Wide and narrow
conceptions
B.‑ Narrow conceptions and
inherent or internal limitations to the fundamental rights
a) The inherent or internal
limitations to fundamental rights
b) Narrow conception of the
normative scope of fundamental rights
IV.‑ THE INTERFERENCE INTO FUNDAMENTAL
RIGHTS
1.‑ "Act or omission”
2.‑ "(Act or omission) of
the spanish public powers”
3.‑ (Act or omission of the Spanish
public powers) "by which the normative scope initially protected of a
fundamental right (their definition or
contents) suffers a cut or
reduction"
V.‑ LEGAL SOURCES OF THE LIMITATIONS
TO FUNDAMENTAL RIGHTS
1.- Supraconstitucional Law?
2.‑ Do exist general limitations
to fundamental rights?
3.‑ Explicit limitations
4.‑ Implied limitations
VI.‑ CONSTITUTIONAL REQUIREMENTS OF EACH
LIMITATION TO THE FUNDAMENTAL RIGHTS
1.‑ Prescribed by statute or in accordance
with a statute
2.- Jurisdictional exclusivity in the
criminal process and general jurisdictional reserve
3.‑ Generality and non
retroactivity of law restricting the fundamental rights
B) Non retroactivity in peius
4.‑ Principle of proportionality
A) Introduction
B) Constitutional grounds and criticals to the principle of
proportionality
C) The application of the
principle of proportionality to the diverse fundamental rights
D) Principle of proportionality
and other similar principles
E) The principle of
proportionality in the law and before the law
a) Proportionality against
the legislative
b) Proporcionality against the legal public actors
(Government and Judiciary)
F) The technique of application of the principle of
proportionality: the duty of making
a legal consideration of proportionality and of revealinal
it; application step by step; subprinciples of
appropriateness, minimum interference and balancing
a) The technique of explicit application of the
principle of proportionality
b) The technique of application step by step of the
principle of proportionality
c) Constitutional purpose of the measure
d) Subprinciple of
appropriateness
e) Subprinciple of necessity, or minimum
intervention
f) Subprinciple of balancing, strict proportionality
or prohibition of excess
A.'- Concept and
application’s scope
B.'- Casuistical character
of each balancing as application of the principle of strict proportionality
C.'‑ Phases in the
balancing (test of strict proportionality)
G) The control density through the
principle of proportionality
a) Legislative measures
b) Judicial or administrative measures
H) Principle
of proportionality, prognosis and time
5.‑
Essential contents of the fundamental rights
A.‑ The starting point: the initial case law of the Constitutional
Court
B.‑ Position in the legal
literature
C.‑ My position and recent constitutional case-law
VII.‑ SPECIFIC OR
SPECIAL CASES OF LIMITATION TO FUNDAMENTAL RIGHTS
1.‑ The concurrence of fundamental rights
2.‑ The collision or conflict of fundamental rights
A.‑ Effectiveness inter privatos
of the fundamental rights and conflicts among private individuals
B.‑ The collision of fundamental rights and their
solution
3.‑ The withdrawal of fundamental rights
4.‑ The relationships of special subjection
A.‑ Concept
B.‑
Admissibility of the category:
justification
C.‑ Subjective scope of application and constitutional
justification ad casum
D.‑ The
objective scope of the relationships of special subjection
a) Limitations prescribed by law or according
to law, principle of legality and relationships of special subjection
b) Specific limitations to fundamental rights
in the relationships of special subjection