The fundamental right to freedom of speech is a central element of the rule of law in a democratic state that constantly collides with other fundamental rights. Both in court decisions and in legal literature there is a significant discussion on the limits of the freedom of speech, mainly concerning its collision with other fundamental rights, particularly personality rights. This debate has become very strong in Brazilian constitutional case law, mainly in the Federal Supreme Court (Supremo Tribunal Federal), but also in other constitutional systems and even in the domain of international law. Based on the decisions of the Brazilian Supreme Court and those of the US Supreme Court and the Federal Constitutional Court of Germany, this paper aims to discuss some criteria that may guide Courts when balancing freedom of speech and other fundamental rights.

The Prohibition of the Violation of the Content of Fundamental Rights  in the Basic Law of the Federal Republic of Germany of 1949

The article is an attempt to a comprehensive characteristic of prohibition of violations concerning a substance of fundamental rights. The prohibition is one of the conditions limiting the admissibility of such rights, as formulated in Article 19 paragraph 2 FRG Basic Law of 1949. The starting point for this analysis is to present the genesis of the wording of this prohibition in the constitution and to set out its functions. Another important issue taken into account in the article is to discuss the relation which exists between the prohibition of violations concerning the substance of fundamental rights and the principle of respect and protection of human dignity as enshrined in Article 1 paragraph 1 BL and also a relation between the prohibition of violations of fundamental rights and the provision of Article 79 paragraph 3 BL introducing „provisions relatively unchanged”. The concept of the inviolability of fundamental rights being based on the assumption that within each fundamental right it is possible to extract certain basic elements – the essence (core – the essence of the content), with- out which it could not exist and a number of additional elements – „a milieu”. While „the milieu” of a fundamental right may be a subject of interference by the legislature so far never – under any circumstances it cannot be the content of the essence of a fundamental right. The actual normative content of the prohibition depends on how is understood the concept of „the essence of content” of a fundamental right, which unfortunately is not uniform among the representatives of the German doctrine of constitutional law, nor the case law of the Federal Constitutional Court of the FRG and hence a crucial part of the article is the characteristic of various theories regarding this „substance” of fundamental rights.

The rule of law is one of the founding values of the EU, as indicated in Art. 2 TEU. This provision recognizes that the rule of law is a core value, inherent to liberal democracy, and one which characterized the Union and its Member States. Taking into account this context, as well as the deficiencies of the EU mechanism to enforce the rule of law within the Member States, European Parliament called on the Commission to establish a new tool to address rule of law backsliding in Member States. In October 2016, Parliament addressed recommendations to the Commission on the establishment of EU mechanism on democracy, the rule of law, and fundamental rights (EU pact for DRF) in the form of an international agreement. The new mechanism should integrate and complement the existing mechanism, should be evidence-based, objective, addressing the Member States and EU. The author analyzes this initiative and tries to answer why it was not fully realized. Additionally, he presents a reaction to that initiative of the Council of Europe. There is no doubt, that realization of the EU Pact for DRF would inf luence the Council of Europe and weaken its role as a main European mechanism in the area of protection of democracy, rule of law, and human rights.

This paper analyzes how the approach of the European Union to the protection of fundamental rights evolved. It focuses on primary legislation, which ranks highest in the hierarchy of EU sources of law. For this purpose, the author examines the Founding Treaties, the Reform Treaties, and the Charter of Fundamental Rights. The paper focuses on modifying the Treaties due to the complexity of the subject matter. The considerations discussed in this paper set the ground for the outline of the formation of a multi-level system of human rights protection in the European Union, as well as for the presentation of the current state of the law, which undoubtedly constitutes an important contribution to the regulation of the issue discussed.

Evolution of Health Rights in the European Union in the Prism of Human Rights

As an economic and political union of states, the European Union has historically focused neither on health nor on human rights. Since the adoption of the Charter of Fundamental Rights, the link between fundamental rights and human health has been noticeable. Respect for human dignity and individual decisions played an important role in the evolution of the understanding of the right to health as a human right in the EU legal system. The aim of the article is to analyze the development of health rights in EU law and answer the question: does recognizing the right to health as a human right result in a specific legal claim? The article uses a purposeful-functional and axiological interpretation, and the historical method.