Rights and freedoms
Fundamental rights and freedoms: what are they?
Fundamental rights and freedoms are important pillars of democracy. They benefit from increased protection and are divided into several categories.
The protection of fundamental rights and freedoms
In France, the 1958 Constitution does not mention the notion of “fundamental rights”, it does not include a complete list of these rights, unlike countries such as Spain or Italy. However, the constitutional guarantee of a number of fundamental rights and freedoms is ensured by the preamble of the Constitution.
It refers to three sources:
The Declaration of the Rights of Man and of the Citizen of 1789,
The preamble to the 1946 Constitution,
The Environmental Charter.
The Constitutional Council has greatly contributed, through its case law, to ensuring respect for these rights by its definition
of the constitutional block.
The Charter of Fundamental Rights of the European Union. (CDFUE) is another source of fundamental rights.
Adopted in 2000, it is now mandatory for Member States and institutions of the European Union.
The French courts and the Court of Justice of the European Union are responsible for ensuring its application.
The European Convention for the Protection of Human Rights (ECHR) was adopted in 1950 by the Council of Europe. It contains rights that French courts must protect, as does the European Court of Human Rights.
The different categories of fundamental rights and freedoms
- The rights inherent in the human person (“rights of”): these rights, which are for the most part established by the Declaration of 1789 and the Charter of Fundamental Rights of the Union, are essentially civil and political rights, individuals, the exercise of which the State has an obligation to allow.
- These include, among others, equality, freedom, security and resistance to oppression.
- Rights which are aspects or consequences of the precedents: thus from the principle of equality flow, for example, universal suffrage, equality of the sexes, but also equality before the law, employment, taxation, justice, access to culture…
- The principle of freedom infers the existence of freedom of opinion, expression, assembly, worship, freedom of association and the right to strike.
- The right to property (art. 17 DDHC) has as its corollary the freedom to dispose of one’s property and to undertake (art. 4).
- The right to security (art. 2) justifies the prohibition of all arbitrariness, the presumption of innocence, respect for the rights of the defense, the protection of individual freedom by justice.
- Social and economic rights are set out more specifically in the preamble to the 1946 Constitution and by the Charter of Fundamental Rights of the Union: right to employment, to health protection, to free public education …
- The so-called “third generation” rights (“Rights for”) are for example set out in the Environmental Charter, which affirms the right of everyone to “live in a balanced and healthy environment” (art. 1) and which enshrines the notion of sustainable development (art. 6) and the precautionary principle (art. 7).
- The rights of the child Protecting our children, by ensuring their rights are respected:
DECLARATION OF HUMAN RIGHTS
According to the Declaration of 1789, the exercise of the “natural rights of every man” has “limits only those which ensure to other members of society the enjoyment of these same rights” (art. 4), which “cannot be determined only by freedom.
The representatives of the French people, constituted in the National Assembly, considering that ignorance, forgetfulness or contempt for the rights of man are the only causes of public misfortunes and the corruption of governments, have resolved to expose, in a solemn declaration, the natural, inalienable, and sacred rights of man;
So that this declaration, constantly present to all members of the social body, constantly reminds them of their rights and duties?
In order that the acts of the legislative power, and those of the executive power, being able at all times to be compared with the aim of any political institution, may be more respected?
So that the complaints of the citizens, henceforth founded on simple and indisputable principles, always turn to the maintenance of the Constitution and to the happiness of all.
Consequently, the National Assembly recognizes and declares, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen.
Article 1 Men are born and remain free and equal in rights. Social distinctions can only be based on common utility.
Article 2 The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety, and resistance to oppression.
Article 3 The principle of all sovereignty resides essentially in the nation. No body, no individual can exercise authority which does not emanate expressly from it.
Article 4 Freedom consists in being able to do all that does not harm others: thus, the exercise of the natural rights of each man has no limits other than those which assure the other members of society the enjoyment of these same rights. These limits can only be determined by law.
Article 5 The law has the right to defend only actions harmful to society. Anything that is not forbidden by law cannot be prevented, and no one can be compelled to do what it does not order.
Article 6 The law is the expression of the general will. All citizens have the right to contribute personally, or through their representatives, to its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in his eyes, are equally admissible to all dignities, places and public employments, according to their capacity, and without any other distinction than that of their virtues and their talents.
Article 7 No man may be accused, arrested or detained except in the cases determined by the law, and according to the forms which it has prescribed. Those who solicit, expedite, execute or cause to be executed arbitrary orders, must be punished; but every citizen summoned or seized under the law must obey immediately: he is guilty by resistance.
Article 8 The law should establish only strictly and obviously necessary penalties, and no one can be punished except by virtue of a law established and promulgated prior to the offense, and legally applied.
Article 9 A man being presumed innocent until he has been declared guilty, if it is considered essential to arrest him, any rigor which would not be necessary to ascertain his person must be severely punished by the law. law.
Article 10 No one shall be disturbed for his opinions, even religious ones, provided that their manifestation does not disturb the public order established by law.
Article 11 The free communication of thoughts and opinions is one of the most precious rights of man: every citizen can therefore speak, write, print freely, except to answer for the abuse of this freedom in the cases determined by law. .
Article 12 The guarantee of the rights of man and of the citizen requires a public force: this force is therefore instituted for the benefit of all, and not for the particular utility of those to whom it is entrusted.
Article 13 For the maintenance of the public force, and for the expenses of administration, a common contribution is indispensable: it must be equally distributed among all the citizens, by reason of their faculties.
Article 14 All citizens have the right to ascertain, by themselves or through their representatives, the necessity of the public contribution, to consent to it freely, to follow its use, and to determine the quota, the trim, recovery and duration.
Article 15 The company has the right to demand an account of its administration from any public official.
Article 16 Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution.
Article 17 Property being an inviolable and sacred right, no one can be deprived of it, except when public necessity, legally established, obviously requires it, and under the condition of a just and prior indemnity.
DECLARATION OF FAMILY RIGHTS
Considering the Declaration of the Rights of Man and of the Citizen of August 26, 1789, Considering the Universal Declaration of Human Rights adopted by the United Nations in 1948,
Considering the European Convention for the Protection of Human Rights and Fundamental Freedoms,
Considering the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on November 20, 1959 and having taken cognizance of the draft Convention on the Rights of the Child currently under consideration at the United Nations,
Considering the Convention on the Elimination of All Forms of Discrimination against Women, adopted by the United Nations General Assembly on December 18, 1979,
Considering the Declaration of the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on December 9, 1975,
Observing the permanence of the family based on the universal values of love and solidarity, freedom and responsibility, and the diversity of its expressions,
Desiring to contribute to a better consideration of the rights, functions and responsibilities of families, and desiring that each measure decided upon for this purpose falls within the framework of an overall family policy,
The National Union of Family Associations (UNAF), which, under the terms of the order of March 3, 1945 and the law of July 11, 1975, is responsible for officially representing all French and foreign families regularly established in France , and for the purpose of defending their material and moral interests,
Gathered in general assembly in Bordeaux, June 10 and 11, 1989, declares:
Article 1: The Family, a fundamental element of Society, is a community of persons, functions, rights and duties.
It is an affective, educational, cultural, civic, economic and social reality.
Natural framework for the development and well-being of all its members,
it is a privileged place of exchange, transmission, and solidarity between generations. It must therefore receive protection, support, and benefit from the rights and services necessary to fully exercise its functions and responsibilities.
Article 2: the right to found a family is a fundamental freedom,
and as such a universal right. In accordance with the Declaration of Human Rights, it is independent of the philosophical, political or religious choices of individuals and States. The family is a unit of persons based on:
- the wedding,
- or parentage,
- or the exercise of parental authority.
Article 3: Men and women have the right to marry and found a family. The marriage must be celebrated with the free and full consent of the future spouses. They have equal rights with regard to the marriage, during the marriage and upon its dissolution.
Article 4: All family life needs love. Freedom must be guaranteed to families. In view of their functions and responsibilities, in particular the maintenance and education of children, families must be able to count on the consideration and solidarity of the Nation.
The law, and appropriate means, must therefore guarantee any parental project which, to be carried out in the interest of the child, needs time.
Article 5: Parents are responsible for deciding the spacing of births and the number of children to be born. The State has the duty to create the conditions allowing them to exercise these choices.
Article 6: The primary responsibility for bringing up the child rests with the parents or guardians. Both parents have a common and equal responsibility for raising the child, ensuring its development and fulfillment, and enabling it to acquire its full autonomy.
Parents are the first responsible for the education to be given to their children, in the interest of these. Society has a duty to provide educational support and material assistance to parents.
Education is a human right, it must aim at the full development of personalities while respecting differences, at strengthening respect for human rights and fundamental freedoms, and at fostering understanding, tolerance and friendship among all nations, all racial or religious groups, all families, all individuals.
The right of parents to choose the education to be given to their children is limited by these requirements.
Article 7: Maternity and childhood, both before and after birth, are entitled to special assistance and protection.
All children, whether born in wedlock or out of wedlock, enjoy the same rights. The child is a person who needs a father and a mother. The State has a duty to promote the full exercise of paternal and maternal responsibilities through legislation and appropriate health and social protection and an equipment policy. International agreements
must take into account the interests of the child.
Article 8: Each family has the right to sufficient means to guarantee it a quality of life ensuring the well-being of each of its members. The health and social protection systems constitute one of the means contributing to the exercise of this right. They must take all situations into account.
Due to their functions and responsibilities, families are entitled to compensation for family expenses (cost of the child and parental time) which can be provided by various means: family benefits, tax provisions and equipment.
The policy of compensating family expenses responds to an imperative of justice and prevails over policies with strictly demographic objectives. The State must take into account the demographic situation. A harmonious demographic situation will never dispense the State from carrying out a family policy.
Article 9: the economic and social organization must make it possible to reconcile family life, professional life and school life.
Because of the importance of housing on personal and family life, housing is an essential right for the family.
As a result, all families must be able to enjoy quality housing and local facilities allowing them to flourish.
Environmental protection is a necessary part of the quality of life.
Article 10: Everyone has the right to respect for their private and family life.
Article 11: The ethical consequences of research in the life sciences must be taken into account in their effects on the family as well as on the individual.
Article 12: Families have the right to associate to defend their interests. The State has the duty to ensure the permanent representation of family interests. Families must have access to all means of communication.
DECLARATION OF THE RIGHTS OF THE CHILD
The rights of the child are human rights specifically adapted to the child because they take into account his fragility, his specificities and the needs specific to his age.
Children’s rights take into account the need for child development. Children therefore have the right to live and develop properly both physically and intellectually.
The rights of the child thus provide for the satisfaction of essential needs for the proper development of the child, such as access to appropriate food, necessary care, education, etc.
The rights of the child take into consideration the vulnerable nature of the child. They imply the need to provide them with a protective framework. On the one hand, it is a question of granting special assistance to children, and, on the other hand, protection adapted to their age and degree of maturity.
Thus, children must receive the help and support services they need and must be protected against labor exploitation, abduction, abuse, etc.
ENVIRONMENTAL CHARTER STATEMENT
The constitutional value of the Environmental Charter
The Environmental Charter of 2004 has constitutional value since it was integrated into the “constitutionality block” in favor of the constitutional revision of March 1, 2005 (see, decisions nos. 2008-564 DC of June 19, 2008 and 2014 -394 QPC of May 7, 2014).
In this sense, the first paragraph of the Preamble to the Constitution of October 4, 1958 reads as follows: “The French people solemnly proclaim their attachment to the Rights of Man and to the principles of national sovereignty as they have been defined by the Declaration of 1789, confirmed and supplemented by the preamble of the Constitution of 1946, as well as to the rights and duties defined in the Environmental Charter of 2004”.
It was a question of “inscribing a humanist ecology at the heart of our republican pact, through the adoption [of this] Charter (…) backed by the Constitution” (constitutional bill no. 992 relating to the Charter of the environment, registered at the presidency of the National Assembly on June 27, 2003).
The rights and freedoms defined in the Environmental Charter
The Charter consists of ten articles preceded by seven paragraphs which provide:
“That natural resources and balances conditioned the emergence of humanity;
“That the future and the very existence of mankind are inseparable from its natural environment;
“That the environment is the common heritage of human beings;
“That man exerts an increasing influence on the conditions of life and on his own evolution;
“That biological diversity, the development of the person and the progress of human societies are affected by certain modes of consumption or production and by the excessive exploitation of natural resources;
“That the preservation of the environment must be sought in the same way as the other fundamental interests of the Nation;
“That in order to ensure sustainable development, choices intended to meet the needs of the present must not compromise the ability of future generations and other peoples to meet their own needs.”
In a wording close to that proposed by the Coppens commission, these paragraphs thus reflect “a consensus of scientific authorities and other representatives of civil society around three key ideas:
The interdependence of man and nature,
Awareness of the damage caused by certain human activities to the environment and their consequences on the future of our societies,
Finally, the need to promote sustainable development” (report no. 352 by Mr. Patrice GÉLARD on behalf of the Committee on Constitutional Laws, Legislation, Universal Suffrage, Regulations and General Administration on the draft law Constitution relating to the Environmental Charter, registered at the presidency of the Senate on June 16, 2004).
While these paragraphs have constitutional value, none of them establishes a right or freedom that the Constitution guarantees (decision no. 2014-394 QPC cited above).
Consequently, they cannot be invoked in support of a priority question of constitutionality (QPC) the sole purpose of which is to sanction the ignorance of the rights and freedoms guaranteed by the Constitution.
Similarly, the ten articles of this Charter do not all establish a right or a freedom guaranteed by the Constitution.
For example, the Council was able to clarify that no rights or freedoms are established by Article 6 of the Charter for the Environment, under the terms of which “public policies must promote sustainable development.
To this end, they reconcile the protection and enhancement of the environment, economic development and social progress” (Decision No. 2012-283 QPC of November 23, 2012)