2004, vol. 52, br. 3-4, str. 382-398
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Ljudska prava u francuskom pravu
Human rights in French law: Hierarchy and content
Univerzitet Monteskije, Bordo IV, Francuska
Sažetak
Praksa Evropskog suda za ljudska prava u Strazburu i Suda evropskih zajednica u Luksemburgu dovela je do stvaranja skupa pravnih pravila koji se odlikuje gipkošću na jednoj strani i neizvesnošću u pogledu hijerarhije izvora, na drugoj. Otuda je u budućnosti potrebno više raditi na usklađivanju pravnih normi, koje donosi Evropska komisija sa odlukama oba evropska suda. Vrlo je verovatno da u pojedinim oblastima odluke neće moći da donose sudska veća makoliko inače uživale autoritet, nego demokratski izabrano predstavništvo. Što se tiče prava svojine, kao jednog od najvažnijih ljudskih prava, treba istaći da evropsko pravo štiti to pravo na mnogo organizovaniji i homogeniji način, nego opšte međunarodno pravo.
Abstract
The idea of human rights has become a part of the system of natural law. At one and the same time, this phenomenon constitutes its strength and its weakness. Its strength lies in the admirable flexibility of the case law of the European Court of Human Rights and the Court of the European Communities which was free to develop because there were no obstacles lying in its path. Its weakness was reflected in the tendency towards individualism that undermines all institutions of society. While it involved condemning the barrier of outdated legislation, the task was easy, such as when it was necessary to oblige certain countries to recognize the equal status for children born out of wedlock, or freedom of marriage. However, this task became far more delicate when the question was raised about homosexual civil marriage or the right to euthanasia. The two courts created two systems of cases and this progressed smoothly till recently because their rulings referred to different domains. The decisions of the Court of the European Communities focused on economic issues, and the decisions of the Court in Strasbourg dealt with human rights. Nowadays, the practice of these courts is more inter-related and that is why the question arises as to which legal source should prevail. In that framework, the author considers the possible conflict of the member states' constitutional norms, as well as the rules that are created in Brussels and Luxembourg on the one hand and, the decisions of the Court in Strasbourg, on the other. His idea suggests the need to harmonize the rules that originate from the said different sources. When dealing with property rights, the author stresses that European law is more robust than International law. It relies on Article 1. of the Additional Protocol of the European Convention on Human Rights, which formally proclaimed the protection of property rights. The European Court of Human Rights expanded the protection of property rights, by encompassing not only corporeal, but also incorporeal things, such as rights and claims. On the other hand, in court decisions, one may observe an endeavor to protect property rights not only from the violation of substance (e.g. the right of alienation), but also in cases of depriving and limiting property rights.
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