[pp.int.general] philosophy vs. action

[Reinier Bakels]

> However, Spanish Constitution has repeatedly been found by European Courts 
> of Justice as ECHR-compliant -e.g., the /PROMUSICAE vs Telefonica SAU/ 
> jugdment-, and as long as SC's inner bill of rights is more protective 
> than ECHR, I do prefer SC's inner bill of rights.
In countries with a strong constitutional tradition (like DE, apparently 
also ES, not DL) there is a potential conflict between ECHR and the national 
constitution. The solution is not straightforward - in general. I know 
someone who is writing a PhD about that.
>> Of course, the exception subsections do not allow infringement of human 
>> rights without a proper procedure, such as a court order if and when 
>> appropriate
> That's plain false. May you indicate me where is it stated in ECHR or EU 
> case law? If not, and as SC's inner bill of rights explicitly states that 
> court protection, the choice is pretty clear for PIRATA (we choose SC's 
> inner bill of rights).
Read carefully! I said "court order if and  when appropriate".
Home searches typically are subject to strong scrutiny. Office buildings are 
searched more easily (though only if a crime is suspected). Border controls 
and (again) driving licence checks are normal even without any criminal 
suspicion. But they also represent privacy infringement. Frankly I do not 
understand why I am checked when I leave my country. In the US, the border 
checks are tough upon entry, but absent upon leave (well, passport checks. 
the luggage is still extensively checked - again a privacy infringement). 
Criminal prosecution is another example of human rights "violation", being a 
suspect is enough, and the scope is being extended to people supposed to 
prepare (severe) crimes (which is not a crime itself). The paradox is that 
criminal law (normally) can only be used after the fact, which is utterly 
frustrating for society if something really goes wrong.

Other potential conflict areas include the conflict between freedom of 
religion and the freedom of speech, and the restrictions placed on freedom 
of speech for reasons of public order. Etc.

reinier
reinier