Procedural Rights

Human rights must be proceduraly enforceable

The government must preserve and encourage human rights actively, especially when it comes to procedural law. The instruments of procedure law enables the individual to implement his rights and the examination of his concerns in front of an independent court. Human rights that cannot be proceduraly implemented are of no use at all. Last but not least, the legal protection has as a consequence in relation to the constitutional court a solidification as violated rights.

The constitution (guarantee of legal process), the EMRK (Art.13) and also the UN-Pact II (Art. 2 Par. 3) recognise that the lack of effective means of appeal or the refusal of access to available legal means are violations of human rights in their own right. In addition, the procedural law protection is puncutually embelleshed as a percentage of basic material rights; As such, in the case of imprisonment, the right to an immediate examination of lawfulness and a right to a trial before court are guaranteed. (see Art. 31, 32 Constitution, Art. 5, 6 EMRK, Art. 9, 14 UN-Pact II)

Finally, the EGMR and the MRA have made it clear that in the case of the violation of fundamental guarantees (especially the right to life and freedom of torture), the governments are obliged to carry out an effective examination of the circumstances which are allegated to be the cause.

A description of the current research projects on the subject of procedural law and human rights can be found here.

Prof. Regina Kiener, Prof. Felix Uhlmann