Individual rights and freedoms

1. Individual rights and freedoms Protected by Italian Constitution

2. PART 1 of the Constitution (art. 13- 54) • Bill of rights and freedoms • Divided into 4 Titles (Civil Relations; Ethical and Social Relations; Economic Relations; and Political Relations): 1st Titleaddreses rights generally recognizable as the classic formulations of the Enlightenment era. These include guarantees of personal liberty, freedom of movement and residence, freedom of expression, freedom of religion, the principle ofnullapoena sine lege (no punishment without law), and the right to judicial protection (including a right to be heard by the “natural judge” of a dispute). 2nd Title addresses the family, health, and education. 3rd Title addresses many aspects of the right to work: State responsibility to promote the training and advancement of workers and even the protection of Italian workers abroad; the right to a limitation on maximum working hours and to periods of rest; the right to compensation that is both proportionate to the quantity and quality of one’s labor and adequate “to ensure them and their families a free and dignified existence”; special care for the conditions of working women, especially mothers. 4th Title addresses the “political rights”

3. LIBERAL RIGHTS “negative” obligations of the State; “everyone has the right to” Ex. freedom of speech SOCIAL RIGHTS “positive” obligations of the State; “The Republic protects…” Ex. Right to study (need schools) WELFARE STATE

4. FUNDAMENTAL RIGTHS ARE INVIOLABLE • Art. 2 Const. • Rejection of the public rights theory elaborated by German scholars in the nineteenth century (Gerber, Laband, Jellinek) and then followed in Italy. 2 The theory considered citizens’ rights vis-à-vis the State as a consequence of the self-limitation of State powers, which the latter could always change in its favor • Affirming that fundamental rights are inviolable means, on the contrary, that they must be respected by all public authorities, including legislators and the authorities responsible for amending the Constitution. Inviolability therefore means the absolute immutability of such rights. The State has no power to annul or withdraw fundamental rights, not even through the complex procedure of constitutional amendment.

5. FUNDAMENTAL RIGHTS Limits for the EXECUTIVE Limits for the PARLIAMENT

6. The Italian Constitution contains some supreme principles that cannot be subverted or modified in their essential content, either by laws amending the Constitution, or by other constitutional laws. These include both principles that are expressly considered absolute limits on the power to amend the Constitution, such as the republican form of government (Art. 139) as well as those principles that even though not expressly mentioned among those principles not subject to the procedure of constitutional amendment, belong to the essence of the supreme values upon which the Italian Constitution is founded. This Court, furthermore, has already recognized in numerous decisions how the supreme principles of the constitutional order prevail over other laws or constitutional norms, such as when the Court maintained that even the prescriptions of the Concordat, which enjoy particular “constitutional protection” under Art. 7, paragraph 2, are not excluded from scrutiny for conformity to the “supreme principles of the constitutional order” (see Judgments 30/ 1971, 12/ 1972, 175/ 1973, 1/ 1977, 18/ 1982), and also when the Court affirmed that the laws executing the EEC Treaty may be subject to the jurisdiction of this Court “in reference to the fundamental principles of our constitutional order, and to the inalienable rights of the human person” Judgment 1146/1988

7. RELATION BETWEEN RIGHTS No Hierarchy Rights, even when fundamental and inviolable, are all of the same rank so they must be balanced, especially in hard cases, one with another.

8. All of the fundamental rights protected by the Constitution find themselves in a relationship of reciprocal integration and it is not therefore possible to pinpoint one that has an absolute dominance over the others. The protection must always be “systematic and not fragmented into a series of uncoordinated and possibly self-conflicting norms” (Judgment 264/ 2012). If it were not so, the unlimited expansion of one of the rights would occur, [and this right] would become “the tyrant” in comparison to other constitutionally recognized and [constitutionally] protected judicial situations, which constitute, as a whole, the expression of the dignity of the person. Judgement n. 85/2013

9. Equality (art. 3 Const.) • FORMAL EQUALITY: the principle is designed to prevent both arbitrary discrimination among persons similarly situated and the arbitrary assimilation of persons who are differently situated. Irrational discriminations or assimilations are declared unconstitutional. STRICT SCRUTINY OF REASONABLENESS • SUBSTANTIVE EQUALITY: “It is the task of the Republic to remove those obstacles of an economic or social nature which, by limiting in fact the freedom and equality of citizens, prevent the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country.” Article 3, paragraph 2 thus does not contradict the formal component of the principle of equality but instead complements it. By justifying legislation that helps to realize the equality of conditions, even though apparently discriminatory toward certain categories or groups of persons, the substantive component of the principle helps to reaffirm full and effective legal equality as well.

10. JUDGEMENT N. 163/1963 • The statute of the Autonomous Province of Trento regulating the fire prevention organization applied the same minimum height requirement of 1.65 meters to both men and women to enter the firefighting service. • “That which is contested, instead, is that the provision of a minimum height that is identical for women and for men constitutes an unreasonable imposition of a uniform legal treatment on persons who are characterized, based on empirical data from median statistics, by different heights. In consequence, female candidates in the public competition mentioned previously would be penalized on the basis of their sex, having to be subjected to that which Art. 4, paragraph 2 of Statute 125/ 1991 defines as “indirect discrimination”, as a consequence of the contested regulation”.

11. PERSONAL LIBERTY • Article 13 of the Constitution establishes the inviolability of personal liberty and subjects any restrictions on liberty to strict judicial control. • The “cases and manner” in which a person can be subjected to restrictions of his or her personal freedom can thus be determined only by a detailed legislative act of Parliament. (so-called RISERVA DI LEGGE) • Restrictions on personal liberty can thus be authorized only by a reasoned judicial order, in compliance with the statutory law (so-called RISERVA DI GIURISDIZIONE)

12. Freedom of religion • Article 19 protects the freedom both to profess and to propagate religion; • this guarantees to every person not only the freedom to adhere personally to a particular religion but also the freedom to divulge one’s faith and to induce others to adhere to it, including through the criticism of other people’s beliefs. 1975). It also encompasses the so-called negative freedom of religion, or freedom from religion— that is, the right not to profess any religion; • The Italian Constitutional Court has explicitly recognized laicità as a supreme and inviolable constitutional principle -> all religions are equal

13. Judgement n. 508/2000 The Constitutional Court affirmed the equality of treatment of various religions, with regard to blasphemy laws. In Judgment 508/ 2000, the Court ruled on a constitutional challenge to Article 508 of the Criminal Code. A remnant of the regime of the 1929 Concordat, this provision of the Criminal Code established the crime of contempt of State religion. The Constitutional Court struck it down as a violation of Articles 3 and 8 of the Constitution

14. “According to the fundamental principles of equality of all citizens without distinction on the basis of religion (Art. 3 of the Constitution), and of equal liberty under the law of all religious confessions (Art. 8 of the Constitution), the position of the State must be one of equidistance and impartiality with respect to the latter. The greater or lesser number of adherents of this or that religious confession is not relevant, nor is the greater or lesser degree of social reactions that result from a violation of rights of one or another of these religious confessions (Judgments 925/ 1988, 440/ 1995, and 329/ 1977). Each person who identifies with a faith, no matter what the confession to which he belongs, demands equal protection of conscience (see again Judgment 440/ 1995). Nevertheless the possibility remains for the State to regulate in a bilateral way, and therefore in a specific and differentiated way, relations with the Catholic Church through the Concordat (Art. 7 of the Constitution) and relations with religious confessions other than Catholicism with “understandings.” Such a position of equidistance and impartiality is the reflection of the principle of laicità that the Constitutional Court has extracted from the system of constitutional norms, a principle that rises to the level of a “supreme principle” (Judgments 203/ 1989, 259/ 1990, 195/ 1993, and 329/ 1997), characterizing the form of our State as a pluralistic one in which diverse faiths, culture, and traditions coexist in equal liberty (Judgment 440/ 1995)”.