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get which type of law involves the enforcement of our most basic rights as citizens against unreasonable government interference? from EN Bilgi.
Citizen Security and Human Rights
CITIZEN SECURITY AND HUMAN RIGHTS
E. Right to privacy and to have one’s honor respected and dignity recognized
169. This right is recognized in Articles V, IX and X of the American Declaration and Article 11 of the American Convention:
American Declaration - Article V. Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life. Article IX. Every person has the right to the inviolability of his home. Article X. Every person has the right to the inviolability and transmission of his correspondence.
American Convention - Article 11(1) Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. 3. Everyone has the right to the protection of the law against such interference or attacks.
This right is also recognized in other instruments of international human rights law such as the Article 12 of the Universal Declaration, Article 17 of the International Covenant on Civil and Political Rights, and Article 16 of the Convention on the Rights of the Child.
170. These rights are involved in different types of situations, which in turn may involve varying degrees of responsibility on the part of the member states as to their negative and positive obligations in carrying out their public policies on citizen security. One of the priority issues for the Commission concerns police procedures where bodily searches have to be conducted on detained persons; on persons who visit next of kin or loved ones being held in police cells, prisons, or other incarceration facilities; or as part of the general security protocols established to prevent certain acts of violence or criminal acts. In many countries of the region, these procedures have been a constant occasion for abuse and violations of the dignity of those persons who have to subject themselves to searches of this kind, particularly in the case of women, children and adolescents.
171. Bodily searches are part of the basic procedure that State law enforcement must perform to fulfill its institutional obligations. The life and physical integrity of third persons, the security personnel, and even the person being searched often depend upon whether a bodily search is properly executed. Nevertheless, the Commission notes that the procedures for bodily searches must be regulated by law, and spell out the administrative and criminal liability that those members of the security forces who violate the laws on bodily searches will incur. Law enforcement personnel must be given specific and ongoing training in how these procedures are to be performed; the member states, for their part, must constantly update the equipment and technical resources available so that this type of search can be conducted in the least invasive manner possible.
172. As a general rule, the domestic laws of the member states should reserve the practice of bodily searches for those situations in which they are strictly necessary to comply with the safety measures needed to guarantee the security and safety of any person involved in a police procedure. The personnel charged with performing bodily searches are to take the necessary measures to avoid any situation that might violate the right to privacy or the dignity of the person being searched. Whenever a police officer has well-founded reasons to suspect that, in the interests of safety, the individual undergoing the bodily search should be required to undress, he or she will have to get the corresponding court order first, and then perform the bodily search in the presence of a health professional.
173. As for searches of packages, handbags, suitcases and similar articles that a person carries with him, and searches of various individual and collective modes of transportation, the Commission observes that the domestic laws of the States must establish clear and routine procedures that will avoid any type of abuse or discriminatory treatment by the agents of the institution in charge of conducting such searches. Searches of articles that one carries on one’s persons should ideally be done in private, taking the utmost care not to violate the person’s dignity, honor or privacy. No form of corruption by anyone involved in these procedures should undermine them, as the absence of corruption will ensure the transparency and lawfulness of the actions being taken by the competent authorities. Persons who have been subjected to these procedures should have readily available to them rapid and simple means of filing a complaint against any irregularity or abuse of authority.
174. As has been said repeatedly in this report, when executing those actions contemplated in their public policies on citizen security that are designed to prevent and, where necessary, lawfully suppress acts of violence or crime, member states may order measures that restrict or curtail the exercise of certain rights, provided those limitations or restrictions are exclusively in answer to the “just demands of a democratic society, which takes account of the need to balance the competing interests involved and the need to preserve the object and purpose of the Convention.” And as previously mentioned in this report, citing the standards established by the Court in this regard, any restriction or limit on the exercise of a right must be established by law, in the formal and material sense. In the case of the inviolability of correspondence or of communications in the broader sense, the Court has held that the private sphere is immune to abusive or arbitrary encroachments or attacks by third parties or the public authorities. Although telephone conversations are not expressly mentioned in Article 11 of the Convention, it is a mode of communication that, like correspondence, is within the realm of those things protected by the right to a private life. The Court has also ruled that Article 11 prohibits any arbitrary or abusive interference in the private life of persons, and specifies a number of realms of privacy, such as the private life of the family, domicile and correspondence.
First Amendment Primary tabs First Amendment: An Overview
The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. It prohibits any laws that establish a national religion, impede the free exercise of religion, abridge the freedom of speech, infringe upon the freedom of the press, interfere with the right to peaceably assemble, or prohibit citizens from petitioning for a governmental redress of grievances. It was adopted into the Bill of Rights in 1791. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress. Furthermore, the Court has interpreted the Due Process Clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments.
Freedom of Religion
Two clauses in the First Amendment guarantee freedom of religion. The Establishment Clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the "separation of church and state." However, some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of "blue laws" is not prohibited. The Free Exercise Clause prohibits the government, in most instances, from interfering with a person's practice of their religion.
Freedom of Speech / Freedom of the Press
The most basic component of freedom of expression is the right to freedom of speech. Freedom of speech may be exercised in a direct (words) or a symbolic (actions) way. Freedom of speech is recognized as a human right under article 19 of the Universal Declaration of Human Rights. The right to freedom of speech allows individuals to express themselves without government interference or regulation. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. Generally, a person cannot be held liable, either criminally or civilly for anything written or spoken about a person or topic, so long as it is truthful or based on an honest opinion and such statements.
A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal action, fighting words, commercial speech and obscenity. The right to free speech includes other mediums of expression that communicate a message. The level of protection speech receives also depends on the forum in which it takes place.
Despite the popular misunderstanding, the right to freedom of the press guaranteed by the First Amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general.
Right to Assemble / Right to Petition
The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief. The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the First, Fifth, and Fourteenth Amendments. Freedom of assembly is recognized as a human right under article 20 of the Universal Declaration of Human Rights. This implicit right is limited to the right to associate for First Amendment purposes. It does not include a right of social association. The government may prohibit people from knowingly associating in groups that engage and promote illegal activities. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the basis of an individual's current or past membership in a particular group. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with First Amendment rights. The government may also, generally, not compel individuals to express themselves, hold certain beliefs, or belong to particular associations or groups.
The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through litigation or other governmental action. It works with the right of assembly by allowing people to join together and seek change from the government.
Last Updated in March of 2020 by Elvin Egemenoglu.
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Citizen Security and Human Rights
REPORT ON CITIZEN SECURITY AND HUMAN RIGHTS
IV. CITIZEN SECURITY AND HUMAN RIGHTS
35. As previously observed, the insecurity generated by crime and violence in the Americas is a very serious problem in which the observance and enjoyment of human rights are at stake. Citizen security policies must be evaluated from a perspective of respect and guarantee of human rights. On the one hand, negative obligations involving abstention and respect; on the other hand, positive obligations linked to the adoption of prevention measures. The effective enforcement of rights involves positive and negative obligations at four levels: the obligation to respect, the obligation to protect, the obligation to ensure and the obligation to promote the right in question. The obligation to respect is defined as the State’s duty not to interfere with, hinder or bar access to, the enjoyment of the resources that are the object of the right. The obligation to protect is the duty to prevent third parties from interfering with, hindering or barring access to the resources that are the object of that right. The obligation to ensure means to guarantee that theof the right is able to gain access to the enjoyment of the right, when he or she is unable to do it for him or herself. The obligation to promote is the duty to create conditions so that the of a right can have access to the enjoyment of the right.
36. One of the main dimensions of state obligations is linked to the judicial clarification of criminal conduct with the view to eliminating impunity and preventing the recurrence of violence. Both the Inter-American Commission and Court have condemned the impunity of events violating fundamental rights. Impunity facilitates the continuing repetition of human rights violations and the total defenselessness of victims and their families. Undoubtedly the adequate and effective administration of justice on the part of the judicial branch and to an appropriate extent, of disciplinary entities, has a fundamental role not only in terms of reparations but also in terms of the lessening of the risk and the scope of violence.
A. The States’ obligations from the standpoint of citizen security
37. The American Convention protects the right to life (Article 4), physical integrity (Article 5), and liberty (Article 7) among others relating to citizen security, which will be analyzed in detail in forthcoming chapters of the present report. Article 1 of the American Convention provides that
The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
The Commission and the Court have repeatedly examined the scope of this provision to determine what is meant by positive obligations in the realm of human rights. The Court, specifically, has established precedent to the effect that
[P]rotection of the law consists, fundamentally, of the remedies the law provides for the protection of the rights guaranteed by the Convention. The obligation to respect and guarantee such rights, which Article 1(1) imposes on the States Parties, implies, as the Court has already stated, the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.
The scope of the juridical concept of positive obligations within the Inter-American system is elaborated upon in Article 2 of the American Convention, which provides as follows:
Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.
The Court has reiterated that
(…) the general duty under Article 2 of the American Convention implies the adoption of measures of two kinds: on the one hand, elimination of any norms and practices that in any way violate the guarantees provided under the Convention; on the other hand, the promulgation of norms and the development of practices conducive to effective observance of those guarantees. Furthermore, adoption of these measures becomes necessary when there is evidence of practices that are violations of the American Convention in any way.
The international obligations undertaken by the member states, in accordance with the general principles on this subject, must be performed in good faith, in keeping with Articles 26, 27 and 31 of the Vienna Convention on the Law of Treaties.
38. Before dealing with the issues directly related to public policy on citizen security and in order to understand the possible scope of the international responsibility, it is necessary to review the criteria for attribution of state responsibility established in the American Convention, as well as its interpretation by the Commission and the Court in reports and judgments in relevant individual cases. Broadly speaking, persons under state jurisdiction may see their fundamental rights compromised either from the behavior of State agents or from conduct perpetrated by individuals which, if not clarified generates state responsibility for non-fulfillment of the obligation to provide judicial protection. In the case of persons in especially vulnerable situations, State responsibility also arises because of the lack of measures to prevent harm. The particular case of obligations reinforced under the Convention of Belém do Pará will also be addressed.