Sketch for a „Charter of Fundamental Rights in the European Union”

By Gerald Häfner, Dr. Christoph Strawe, Dr. Robert Zuegg

 

(Using the texts of the Basic Law of the Federal Republic of Germany, the UN-Declaration on Human Rights, the European Convention on Human Rights, the Swiss Federal Constitution, suggestions of the Initiative „Switzerland in Dialogue”, of the Action Forum „Mature School in Schleswig Holstein”, and of the Committee for a „Democratically Written Federation of German States”.)


FUNDAMENTAL RIGHTS

Article 1 [ dignity of Man; binding force of fundamental rights for the state; comprehensive fundamental right guarantees ]

(1) The dignity of man is inviolable. To respect and to protect the human individuality and to facilitate self- and joint responsibility with other human beings is the highest obligation of all state power.

(2) The European Union (EU) and its member states commit themselves therefore to the keeping and implementation of the inviolable and inalienable human rights as a basis for each humane community and of peace and justice in the world.

(3) This fundamental right Charter binds all powers in the EU and its member states setting, applying and administering justice. It contains enforceable claims of the individual and guiding principles of a liberal, democratic and social society.

(4) More comprehensive fundamental rights guarantees of the individual member states as well as the European Convention for the protection of Human Rights and basic liberties (ECHR) are not affected by this fundamental right Charter.


Article 2 [ freedom of the person; right to life; freedom of action and contract; right on assistance in the case of distress ]

(1) Each human being has the right to life and to physical integrity. The death penalty and every other type of cruel and degrading treatment are forbidden.

(2) Everyone has the right to free development of her or his personality, in so far as it does not violate the rights of others or is contrary to the basic-legal order of the European Union or the member states.

(3) In the context of general freedom of action of the person each human being has the right to regulate and arrange her or his relationship with others by contractual agreement.

(4) Everyone, who finds themselves in a situation of serious distress, has the right to such assistance and care as is essential for a humane existence.

 

Article 3 [ equality before the law; Non-discrimination; equal rights of women and men ]

(1) All human beings are equal before the law.

(2) Nobody may be discriminated against on any ground such as origin, race, gender, age, language, social position, way of life, religion, thought, political conviction, sexual orientation or a physical, psychological or mental handicap.

(3) Men and Women are equal; the European Union furthers the realization of equal opportunities and the abolishment of existing inequalities, particularly in family, education and work.


Article 4 [ freedom of belief, conscience and confession ]

(1) The freedom of thought, conscience and belief are ensured.<s></s>

(2) Each human being has the right to determine her or his religion, world outlook and ethical conviction freely and to confess and practice these publicly, both within or outside a community.

(3) Nobody may be forced against her or his conscience to take part in armed military service.


Article 5 [ freedom of expression, information and media; art and science ]

(1) Everyone has the right to form and express her or his opinion without interference and to spread such opinions through whatever media the individual chooses as well as the right to unrestricted access to all public information.

(2) Free reporting by the media is ensured. It is restricted only by the inviolable dignity of the individual as well as by the right of children and young people to special protection of the integrity of their personality and development. The media have the right to proceed without censorship and editorial protection of its sources is inviolable.

(3) The freedom of art, of teaching and of scientific research are ensured.

Article 6 [ freedom of assembly, organization and coalition ]

(1) Each human being has the right to meet peacefully and without weapons with others without permission.

(2) Each human being has the right to found, join or affiliate her or himself to an association, society, community or other autonomous body or bodies.

(3) Each human being has the right to form organizations for the protection and promotion of labour standards and economical conditions.

(4) Nobody may be forced to belong to an organization.


Article 7 [ right to participation in political life; initiative and ballot right, right to vote, right to petition, right to establish parties ]

(1) All citizens of age within the Union have the right to participate in the organization of the political life of their country and of the European Union on all levels.

(2) This is carried out through the right to introduce bills by initiatives and to vote on them through referendum as well as through the participation in general, free, equal, and secret elections.

(3) The equal opportunity of competing proposals or candidates at voting or in elections respectively is guaranteed.

(4) All citizens within the European Union have the right under equal conditions to admission to public offices in their country.

(5) The right to establish parties and other political organizations is ensured.

(6) Each human being has the right, without fear or disadvantage, to petitions or complain (whether individually or collectively) to any authority, government institution or representative.


Article 8 [ inviolability of the private sphere, data security ]

(1) Everyone has the entitlement to protection of her or his private area of life. The privacy of closed messages in word, writing, picture or character is inviolable.

(2) Every human being has the right to all data personal to her or himself as well as the right to have full access to, inspect and copy all documents and data relating to her or himself and the right to protection of her or his privacy.


Article 9 [ freedom of movement ]

(A formulated suggestion was renounced.)

Article 10 [ guarantee of the right of asylum ]

(This article, for which no rounded off formulated suggestion was developed, should regulate and record the right of asylum in Europe in accordance with the general human rights that a refugee must not be pushed away or delivered into a state, in which she or he is pursued. Furthermore nobody may be returned or delivered to a state within which he or she either is or might reasonably expect to suffer torture or any type of cruel or inhumane treatment or punishment.


Article 11 [ rights and protection of children and young people ]

(1) Children and young people are entitled to comprehensive education and training that is committed to provide the conditions and possibilities within which the development of the child and young persons individuality will flourish.

(2) Care and education of the children are primarily the natural right of parents and primarily their incumbent responsibility. The state community ensures also that extramarital children or children living without parental care can grow up in a home under the protection of a social environment. The state protects each small community organization, which creates the social environment in which children and young people grow up, and supports it in the self-responsible fulfilment of its function.

(3) Beyond that children and young people have the entitlement to a claim to special protection to ensure the integrity of their person and their development.


Article 12 [ right to education ]

(1) Each human being in Europe has the right to education. For children and young people the attendance of educational facilities must not be dependent on economical conditions of parents.

(2) The liberty of the parental education responsibility is ensured; it covers in particular the right of parents to freely select the type of the educational institution for their children.

(3) The state guarantees equal access to and free selection of a school by equally supporting and enabling publicly available state and independently run schools

(4) The schools selected by parents, whether state run or independent, shall perform their public function in education equitably. The freedom to found educational establishments and to run them independently is ensured. This includes the absolute right to establish, organise and determine the curriculum whether for the provision of education to children or to train teachers.

(5) Members of national or ethnic minorities have the right to learn their native language and found and maintain their own schools.

(6) The school system is subordinate to the legal supervision of the individual European states.

 

Article 13 [ property; expropriation ]

(1) Individual Property is ensured. Its use and its forms are to serve both the preservation and development of sustainable ecological and social living conditions.

(2) An expropriation is admissible only in the public interest. It may take place only through the due process of law or due to a law, which regulates the type and extent of the remuneration. The remuneration is to be determined under fair consideration of the interests of the public and those involved.


Article 14 [ freedom of career and consumption; freedom of contractual organization and independence of the economy ]

(1) Free selection, accessibility and practice of occupation are ensured; likewise the self-determination of the consumer and the freedom of contract between the participants in the economy. Legal regulations which have the purpose to protect men and nature remain unaffected thereof.<s></s>

(2) The economy regulates and administers its affairs independently on the basis of the state general outline of law; in addition it can form contract-entitled organs, in which all participants in the economy, entrepreneurs, co-workers and consumers, are responsibly involved.

Article 15 [ restriction of fundamental rights; substance guarantee and legal action guarantee ]

(1) Each human being in practice of her or his rights and liberties is only subject to those limitations which the law designates exclusively for the purpose of ensuring the acknowledgment and the respect for the rights and liberties of others or to emphasize a predominant public interest. The principle of proportionality must be protected with each intervention into a fundamental right. In no case may the essence of a fundamental right be infringed.

(2) Insofar as a fundamental right may be restricted by a law or due to a law, that law must apply generally and not solely to an individual case. Furthermore, such law must name the fundamental right, indicating the relevant Article.

(3) The fundamental rights also apply to legal persons within the European Union to the extent that the nature of such rights permits.

(4) If someone is violated in her or his rights, then she or he has the right to effective legal protection and if necessary to free legal assistance. Each human being has the right to equal and fair treatment and to judgments in legal, quasi legal and administrative forums within an appropriate period.


Article 16 [ implementation of the fundamental rights ]

(1) The fundamental rights must become effective in the entire legal order.

(2) Those who exercise fundamental rights must respect the fundamental rights of others.

(3) Those who hold public functions are obligated to actively implement the fundamental rights.

PRINCIPLES AND FUNCTIONS OF THE EUROPEAN UNION, 
RESULTING FROM THE FUNDAMENTAL RIGHTS

Article 17 [ principles of the European Union, resistance right ]

(1) The European Union is a community of sovereign states. It is committed to peace and to the principles of democracy and the rule of law, of social justice, federalism and subsidiarity. It sees its pre-eminent function as the creation of the legal and actual conditions, in which the fundamental rights proclaimed in this Charter can in fact be claimed by each human being within the Union.

(2) All government authority in the European Union emanates from the citizens. It is exercised in elections, in ballots and through special organs of the legislation, the executive power and the jurisdiction.

(3) The legislation is subject to the constitutional order, the executive and the independent judiciary are bound by law and justice.

4) All human beings within the Union have the right to resist any person seeking to abolish this liberal, democratic and social order of fundamental rights, should no other remedy be possible.


Article 18 [ subsidiarity ]

(1) The EU and its member states shall facilitate and promote the development of social functions arising out of free initiative and responsibility, in all areas, except those which legislation designates as state matters for urgent reasons. In each case state functions are to be regulated at the lowest possible level.

(2) The EU and its member states shall create structural frameworks to promote the cultural life to unfold in its diversity, free and self-administered. They respect the principle of state neutrality in relation to different cultural endeavours.

(3) The EU and its member states protect the principle of contractual self organization of the economic life; they create suitable framework conditions for an efficient, structurally and *regionally balanced, socially responsible economy. The EU and its member states do not become economically active themselves; exceptions are regulated by law.


Article. 19 [ guarantee of social security, social objectives ]

(1) It is the objective of society as a whole as well as of its individual members that each human being within and outside the European Union can participate in the general development of the living conditions in an appropriate way.

(2) The EU and its member states shall facilitate an environment in which all human beings fit for work can find tasks under appropriate labour conditions or that they can establish appropriate conditions themselves.

(3) For those human beings who have not been able to find such employment, or who are unable to work due to illness, accident or disablement, or due to their youth, to their obligation for education, to their concern for others, or are exempted from work due to their age or other social reasons, the EU or its member states should legally guarantee their necessary living costs which should be assessed on the basis of social comparability. Likewise the EU or its member states shall provide the basis conditions for a humane medical service.

(4) The focal point of the warrantee of social security by law is to assure independently administered social-partnership solutions or such by social solidarity. Private initiative and responsibility can complement such solutions. Private precautionary measures do not release from the obligation to contribute to the general social systems.

(5) In supplementing these forms of social security the state can also make material contributions; these require a legal basis and depend on the available means.

(6) Liberty of science, pluralism of methods, freedom of therapy and the self-determination of the patient including free selection of physician and hospital are generally to be ensured.


Article 20 [ environmental protection, principle of sustainability; respect of life ]

(1) The EU and its member states ensure the protection of human beings and their natural environment from destructive effects. The causer is required to bear the costs of avoiding any such destruction.

(2) The EU and its member states should be committed to the principle of sustainability. They regulate the availability of non increasable goods, like soil, water, air and raw materials in such a manner that their character remains protected as a basis of life for the future generations, and that there develops a balanced relationship between the use of nature and the maintenance of its diversity of species and renewability.

(3) The EU and its member states are committed to the respect of life. They ensure in particular the protection of the animals as co-creations of humans.


Article 21 [fulfilment of public functions ]

(1) The EU and its member states fulfil their functions in implementation fundamental rights and social objectives in a form and structure, which is citizen-friendly, appropriate and economical.

(2) The EU, its member states, as well as the non-state organizations, which fulfil public functions, all suitable possibilities and forms of co-operation, in particular the regional and social-partnership option. Thereby they strengthen the powers for direct responsibility and autonomy of human beings involved.

(3) There should be regular checks to ensure that the public functions being undertaken are both necessary and appropriate. The quality of execution and economic efficiency are to be evaluated constantly and to be improved where necessary.

(4) Within their scope of responsibility the EU and its member states provide for a comprehensive, coordinated, and complementary planning of functions and finances; they report on their implementation and generate a social accounting.


Article 22 [ international law and European Union right ]

(A formulated suggestion was renounced.)


Transient and final clauses

(1) The EU and its member states subordinate the Charter of Fundamental rights to a referendum of its citizens.

(2) The EU asserts its intention to join the European The European Convention of Human Rights Convention in the year 2005 at the latest.

 

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