We were talking about the famous theory "tripartite" the rights of foreigners who once built the Constitutional Court is now repeated as an indisputable truism in all judicial decisions and the articles of scientific doctrine: 1) inherent rights to human dignity enjoyed "as is" English and foreign, 2) rights that do not belong at all to foreigners and 3) rights that belong to foreigners to the extent that be recognized by the treaties and laws. He said that, whatever one thinks on the specific solutions provided by the Court, this theoretical framework is very weak and has never been applied in a minimally coherent. This classification serves to create a semblance of motivation casuistic decisions with which the court tries to find a balance between the ideal of the community of peers and the requirements of the social structure. And then repeated again and again out of sheer inertia. But it has not really helped to shape those decisions. Of course, I'm not saying that judges promote this illusion of conscious way. The lawyers are trained to effectively build differentiated illusory worlds of practical reality and we do not blink and spontaneously if necessary. tripartite classification is dead, but does not know . Then try to argue this. For a moment let's forget the block 2), which refers only to rights to political participation, a matter that deserves special treatment in this blog, but where the Constitution, in principle, it is quite clear. Severe problems arise in distinguishing the difference between 1) and 3) and are basically two: first, it confuses the ownership of rights to equal treatment (pretending that the first group can not be allowed any grading and the third is valid in any arbitrariness of the legislator), on the other hand, not set or the smallest parameter guidance to place a right in the first group or the third, which is totally at the discretion of the Court. Both defects prevent theoretical approach the contemplation of the legal problem to be solved and, together, produce a result inconsistent.
What constitutional rights are inherent to human dignity? For, as is quite clear in the constitutional doctrine and recognizes the Constitutional Court, ALL constitutional rights derive from human dignity . In this context, when the Court wishes to place certain rights in the first group used as an argument for inclusion in the Universal Declaration of Human Rights, but when you put them in the third group (as with the right to work, health care and other social protection rights), forget mentioned that are also included in the Declaration, which is not the slightest reference. Thus, the inclusion in the Declaration is not a valid argument to determine the degree of protection but is merely a smokescreen to justify a thing when it is convenient and it's forever when it is not.
In the first statement on which the classification established TC Tripartite, made a number of examples from which we could deduce more consistent parameters. The rights inherent to human dignity coincide with a series of universal human interests, common to all places, times and cultural contexts and to some extent independent of the structure of each society. For example, in general terms "everyone" has an interest in respect for his life, physical integrity or freedom of ideology. However, one can not say that hunter-gatherers of prehistoric societies have been particularly interested in the "paid vacation, social security benefits or an ordinary judge predetermined by law, rights which make sense only in certain societies and ultimately operate as instruments of those other interests most basic and immediately attached to the human being without the mediation of the society.
Although it had been a criterion for distinguishing more or less solid in the abstract, it would have been completely ineffective in connection with the practical realities. On the one hand, because even these basic interests, to become "rights" enforceable, involve a number of limitations (no right is unlimited) and they may have to do with a foreigner, on the other hand, because being human can not be conceived outside the mediation of the society in which they live, so that in the real world, the most basic interests are meaningless without instrumental rights that guarantee them.
An example of the former. Few rights are more immediate and basic freedom of movement, the interest we must go where we please. However, state power structures impede the free flow of people across the "borders" and if someone accesses the territory illegally, can be "arrested" and locked for a specified time-ideally, until he comes out at "materially the territory. Today, these limits appear to requirements "Indispensable" needed for structural reasons and therefore, the TC supports them, with the odd ball story. So when the TC said that the rights of the first group "should be granted equally to English and foreign" is not exactly telling the truth.
An example of the latter. Few rights are more dependent on instrumental and social settings that the "effective remedy", in other societies may have functional equivalents, but as such, an effective remedy can only be predicated of societies in which there is some kind of judicial power . But if not recognized an effective remedy, then, generally speaking there is no other "rights", including those that were supposedly inherent human dignity, since they can not be exercised. Another example: Suppose that in the context of a capitalist society radically prohibit a legislator to all aliens the right to work, free enterprise, access to social security benefits and health care. How they would survive then? How do you ensure their right to life and limb, supposedly inherent human dignity? We here the extreme case to mean that indeed the discretion of the legislature placed the rights-without exposing any reason-in the "third group" can not be all. Thus, the TC has had to acknowledge that they belong to the first group a handful of rights that does not really correspond strictly to basic human interests: education, effective legal protection, legal aid, association ... Once
notes, therefore, the usefulness of this criterion of distinction, the TC holds times literal reading of the Constitution to examine whether the article refers to the "English" or, by contrast, speaks "all" or use any impersonal expression. This may be a clue clearer, though not conclusive, and the right of movement is predicated literally of the English but the case is considered inherent human dignity of foreigners henever s are authorized to reside in Spain (note the nuance, when he had pretended that the rights of the first group admitted no shades), or, if the right equality refers to the English, it is considered that the prohibition of discrimination also applies to foreigners, as one would expect. It remains unclear what the relationship of this literal interpretation to the tripartite classification, because, sometimes used as an argument to include among the inherent right to human dignity (along with the plot, and criticized as such, inclusion in the Universal Declaration of Human Rights and other multilateral treaties). Other times, however, is granted ownership of the right, but we prefer not to even mention human dignity: that is the case with the right to organize and strike. "The right of association is inherent to human dignity but to organize it? Why?
Moreover, although the tripartite classification explicitly involved in the inherent rights of human dignity had no qualifications for foreigners, this doctrine is modified. We have seen the peculiarities in terms of freedom of movement. But he also believes that support the rights of assembly qualifications, expression, and association (which are linked to human dignity) and syndication (which does not seem to be linked). In contrast, no nuances allowed the right to effective judicial protection, education or the strike. No down what are the parameters for deciding that some refinements and other rights can not. The chaos of the theoretical apparatus used has reached its conclusion with the sentence 236/2007, which declared certain provisions of the Aliens Act "unconstitutional, but not zero" in a singular pursuit of trapeze whose only apparent purpose was to indicate some rights that the legislature could introduce qualifications for foreigners, but causing a huge contradiction, happily overcome by the last legislative reform. In any case, do not really know why I needed such qualifications organize and strike.
The only trend that could vaguely infer what the Constitutional Court does, not what he says, is that the fundamental rights of the maximum protection zone are always inherent human dignity, while the rights and freedoms less protected area or the guiding principles of social and economic policy are in the third group. Is education as a benefit is more important than health as a benefit? But this still does not solve real problems what are the qualifications possible in the first group? Does the legislature free to do whatever he wants with the rights of foreigners in the third group? To the second question we must answer no. It is clear that a radically racist law that denied aliens the right to property, the right to work or the right to any social protection would be unconstitutional. In fact, the European Court of Human Rights has declared contrary to the European Convention on Human Rights a much more light : Austrian nationality requirement for enjoying the advancement of a contributory benefit for a Turkish citizen who had lived and worked legally in Austria.
Thus, we must throw away the tripartite classification of rights, absolutely irrelevant, that does not solve any problem and that prevents us from seeing things properly to solve the problems that may arise. That does not mean you have to throw away the contents of the Constitutional Court's jurisprudence. This is broadly appropriate solutions, which fortunately have always been unfaithful to the terms of his classification. Just have to get some new glasses to see the theoretical issue of the constitutional rights of aliens. To understand the decisions of the past and to build future resolutions. Try propose something more constructive, therefore, in the next post.
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