Human rights are not merely an attractive topic for discussing values and one which is broadly used in numerous discourses outside the world of law due to its general appeal. There is no fault in doing this, it would, however, be harmful if we were to forget about their legal foundation. First and foremost, human rights are a legal category with sui generis normative properties. If realized, human rights can ensure a higher level of respect for human dignity. Whether this will be the case within a certain legal order, depends on much more than only the way human rights are defined in the constitution. This becomes evident if we acknowledge that the legal definition of a right is usually immediately followed by a limitation clause, which – to put it simply – lays down that, under specific conditions, the right may not be afforded legal protection at all.
The reality of how much human rights are truly respected within the law can only be observed once the rights subject to protection encounter an obstacle. It is only at that time that the true normative force of human rights within a certain legal order becomes evident. This is affected by numerous factors that are identified and explored in the following thesis as the factors of human rights limitability.
Human rights go beyond what is written in the constitution and other legal instruments, where provisions are generally modest. Human rights along with their legal nature can be adequately understood only if one is familiar with their historical and moral foundations and their role in the legal order. The circumstances of how a legal order interprets moral foundations and the function of human rights importantly affects their limitation and the resolution of collisions. It is not insignificant whether a legal order fosters human rights founded on natural law or whether it is more inclined towards utilitarian beliefs and a strict positivist understanding of law and human rights. (Constitutional) judicial decision-making and human rights limitability can also be affected by how positive law defines the moral foundations of human rights. There is no doubt that the modern conception of human rights differs from their legal perception at the time of their emergence. On one hand, positive law can nowadays undermine human rights, while on the other, it is impossible to imagine their effective protection in the absence of it.
In practice, exercising and limiting human rights depends on numerous legal elements. These co-define the legal nature of human rights and at the same time have diverse effects as factors of their limitability. The following thesis deals with different elements of substantive and formal law; e.g. how the moral foundations of human rights are defined within positive law, the strength of human rights provisions, the abstract nature of human rights provisions, the influence of international law on their limitability, different categories of human rights and their limitability.
The limitation of human rights in its broad or narrow sense is increasingly becoming the central topic of human rights law. This is not surprising if we acknowledge that human rights are generally not and cannot be illimitable (i.e. absolute). In everyday life, they frequently have to be balanced with the rights of others or with the pertinent interests of the community and the state. Cases of human rights collisions pose complex legal questions, which cannot simply be evaded by the legislator, courts and other public authorities, but must be addressed correctly. Some factors of human rights limitability play an especially important role in these cases, as they directly affect the legislative regulation of such conflicts and the (constitutional) judicial resolution of disputes that inevitably arise. Since the constitutional court is the most important and final adjudicator in this field, and the constitutional case-law, in turn, affects other public authorities, the thesis explores these factors of human rights limitability as factors of constitutional review in human rights collision cases.
The thesis discusses in detail three factors of human rights limitability, which are at the same time significant factors in the constitutional review of human rights collision cases. It firstly addresses limitation clauses, later discusses the distinction between determining the manner of exercising rights and the limitation of rights, and lastly, focuses on the legitimate aim test. Limitation clauses are the provisions which legally regulate the limitation of human rights. By prescribing criteria and conditions for the limitation of human rights, they decisively affect how human rights are ultimately exercised. However, facilitating the limitation of human rights is not the only purpose of limitation clauses. From the viewpoint of respecting human rights, their perhaps even greater role lies in restricting the legislator’s powers to limit the rights. Limitation clauses differ greatly depending on how specific, clear, abstract and concrete, general and particular they are, and on whether they have formal (formative, procedural) or material (substantive) effect. Moreover, the legal interpretation of limitation clauses also depends on the sheer understanding of moral foundations and the concept behind human rights and their limitations. The outcome of a constitutional review may be decisively affected by whether the contested right falls within the normative field of a particular human right (i.e. the scope of a human right) or whether the law should deny its protection on the grounds that the right must, in this part, be limited in order to protect the rights of others or other legally protected interests (i.e. the limitation of a human right).
The constitutional review, especially in Slovenia, is strongly affected by the distinction between determining the manner in which human rights are exercised and their limitation. The Constitution of the Republic of Slovenia explicitly separates the two categories. Determining the manner in which human rights are exercised mainly refers to defining human rights in greater detail and establishing all necessary mechanisms required for the effective exercise of these rights in practice. Limiting human rights refers to narrowing the extent of their exercise on the grounds of simultaneously protecting the rights of others, the public interest, and other legally protected interests. The question here is whether this is not, at the same time, within the purview of some legislative norms that determine the manner of how rights are exercised. The Constitution of the Republic of Slovenia authorizes the legislator to determine the manner of exercising human rights and separately authorizes him for cases when human rights can be limited. The legislator may take any of both actions only when there is an appropriate constitutional basis for it provided in the Constitution of the Republic of Slovenia. A consistent and straightforward distinction between legal measures that constitute how human rights are exercised and the measures that constitute the limitation of human rights is not relevant exclusively to the legislator. It is also significant due to the fact that the Constitutional Court reviews both types of legislative norms based on different criteria. Legislative norms that determine the manner of exercising rights (outworking norms) are reviewed by using the rational basis test, while legislative norms that limit rights (limiting norms) are reviewed by using the proportionality test. In this respect, the thesis places two hypotheses at its central research focus. The first hypothesis assumes that the criteria used by the Constitutional Court in order to decide if a law determines the manner of exercising a human right or whether it limits the right are insufficiently convincing, predictable and clear. By taking this and other reasons into account, we come to the second hypothesis, which assumes that, when carrying out a constitutional review, the Constitutional Court should apply the proportionality test instead of the rational basis test. This would ensure a higher level of (constitutional) human rights protection. Within the thesis, the correctness of the hypothesis is also assessed from the viewpoint of respecting the constitutional principle of the separation of powers.
The last part of the thesis deals with the legitimate aim test, the purpose of which is to assess whether a legislator (or another public authority) had constitutionally admissible grounds for limiting a human right. Not all goals, which the legislator wishes to realize by encroaching a human right, are constitutionally admissible. The goal of preserving political stability and preventing governmental collapse cannot be constitutionally admissible grounds for prohibiting public gatherings. Thus, the Constitutional Court will not be required to further review this type of measure. The legitimate aim test is not used solely for reviewing the constitutional admissibility of a pursued goal; it also frequently focuses on whether the pursued goal is objectively (factually) justified. The thesis accordingly discusses two aspects of the legitimate aim test. Assessing the objective (factual) justification of a pursued goal, for example, raises a question about the existence of factual circumstances that justify the encroachment upon a certain human right (e.g. a threat to the public interest such as state security).
There are differences in how specifically constitutions and other human rights catalogues define legitimate aims that render limiting a human right admissible. In this respect, the way in which limitation clauses are conceived strongly affects the legislator’s margin of appreciation (the separation of powers principle) and at the same time influences the concept behind the legitimate aim test and the intensity of the therewith connected constitutional review. All of this then co-creates the human rights concept adopted in a specific legal order. Limiting human rights in order to pursue countless, even insignificant goals weakens the special normative force of human rights and poses a threat to their natural law foundations.
In addition to the text itself, the legal interpretation of the limitation clause provisions is also important for the constitutional review of human rights collision cases. The thesis discusses in detail the interpretation of the limitation clause provided in paragraph 3, Article 15 of the Constitution of the Republic of Slovenia. In its early case-law, the Constitutional Court interpreted the clause as permitting the limitation of human rights only in order to protect the rights of others and in such cases as are provided by the Constitution, however, the scope of the clause has been significantly expanded throughout the years. Nowadays, the Constitutional Court maintains that these provisions are to be understood in such a way as to allow the limitation of human rights also for the protection of public interest. The thesis examines how gradual changes in the interpretation of this clause have affected the concept behind the legitimate aim test, its role in constitutional review and why the Constitutional Court has decided to develop and adopt this course of action. By doing this, it inevitably addresses a broader and perhaps more fateful question: how the changes in the interpretation of the limitation clause provided in paragraph 3, Article 15 of the Constitution of the Republic of Slovenia affect the concept, normative force and role of human rights in the Slovenian constitutional order and what significance they bear for their level of protection in the future.
|
