Charter of Fundamental Rights of the EU
The European Convention on Human Rights

Constancy of fundamental rights

As a rule, fundamental rights are endowed with a special force of existence. This means that the state may not arbitrarily dispose of these rights – i.e. abolish or amend them. This is why we also speak of the inalienability or inviolability of fundamental rights.

Historical attempts at classification

Fundamental rights and their functions

At their core, all fundamental and human rights convey the protection of human dignity and freedom. In detail, however, they vouch for different claims. These (individual) claims are legally enforceable and thus distinguish fundamental rights from state objectives.  

According to Georg Jellinek’s (historical) status theory, fundamental rights can be divided into three groups (status negativus, positivus and activus). Although this classification can no longer reflect the diversity of fundamental rights today, it nevertheless has didactic value and should be mentioned here (cf. Berka, Verfassungsrecht [2021] 425). 

Negative freedom function

Rights of status negativus secure an individual claim to refrain from state action; they contain a defensive function against the state. Accordingly, the state may not indiscriminately carry out expropriations or restrict freedom of expression. 

Positive performance function

Rights of status positivus guarantee claims against the state, i.e. an obligation of the state to act actively. For example, the state must immediately inform those arrested of the reasons for their arrest; and actively protect lawful demonstrations from disturbances by third parties.

Active
Participatory function

Rights of status activus guarantee entitlements to participate in the formation of state will. These include the right to vote and to stand for election.

Different categories of fundamental rights

Freiheitsrechte

Rights

of freedom

Rights of freedom are primarily defensive rights against the state, which only permit interference with designated fundamental rights under certain conditions. The scope of protection of the rights of freedom mostly include highly personal spheres or certain scope of action of the respective holders of fundamental rights. Thus, for example, general freedom of movement, property, private autonomy, but also faith including its exercise are protected. 

In addition to this defensive function of the rights of freedom, the state must also take active steps to protect these rights within the framework of its guarantee function.

Gleichheitsrechte

Equality rights

 

 

Equality rights guarantee a status of legal equality before the law. Unequal treatment by the state is fundamentally excluded and only permissible under certain objectively justified conditions.

Apart from this, equality rights often also include non-comparative rights that are not limited to the mere “comparison of legal positions”. For example, a general requirement of objectivity is derived from the Austrian principle of equality, which not only covers equal or unequal treatment, but also rejects certain regulations as inherently unobjective. Furthermore, the principle of equality also prohibits decisions that are arbitrary.

Verfahrensgarantie

Procedural guarantees

Procedural guarantees lay down formal and substantive requirements for proceedings before courts and authorities.

They can standardise claims to a certain procedure (such as a decision by an independent court) or order a certain design of a procedure (e.g. that a court hearing must be public). In addition, they can also guarantee procedural legal positions such as the presumption of innocence or the prohibition of self-incrimination.

In criminal proceedings, for example, the state must (actively) ensure that the fundamental rights holder receives a decision by a court within a reasonable period of time.

Sozialrechte

Social rights

Basic social rights guarantee entitlements to social benefits, such as the right to work, housing or social welfare. Although Austrian (federal) constitutional law does not explicitly provide for the guarantee of basic social rights, social participation rights can be derived from the rights to freedom and equality, which grant the holders of basic rights individual claims to participation in state benefits.

Political rights

 

Political rights guarantee rights to actively participate in the formation of political will and thus in the production of the will of the state. In this way, the exercise of participation rights (such as the right to vote) legitimises the exercise of state power.

Furthermore, political rights ensure their holders the establishment of appropriate procedures and the exercise of democratically acquired rights: i.e., for example, to the correct counting of the votes cast in the electoral process and subsequently to the exercise of the mandate for the duration of the electoral period.

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