Khyla I. Constitutional and legal restrictions on personal human rights and freedoms: Ukraine and foreign experience

Українська версія

Thesis for the degree of Doctor of Philosophy (PhD)

State registration number

0821U102810

Applicant for

Specialization

  • 081 - Право. Право

13-12-2021

Specialized Academic Board

ДФ 61.051.032

Uzhhorod National University State Higher Educational Institution

Essay

The dissertation is devoted to the research of the basic constitutional and legal restrictions of the rights and freedoms, which broadcast the content of such. In the course of the research it was determined that such constitutional principles can be: recognition of a person, his rights and freedoms as the highest value and respect for the dignity of the individual; compliance of restrictions with constitutionally established goals; proportionality of restrictions to constitutional goals, which includes the content of restrictions in the interests of national security and protection of the constitutional order, protection of human rights and freedoms, life and health from various encroachments. Human rights are the fundamental content of the liberal (Western) concept of the relationship between the individual and the state in the modern era; they delineate the boundaries of state power and define the goals of state policy. Thus, they ultimately justify the existence of the state, because the latter sees the meaning of its existence in guaranteeing and protecting, as well as ensuring the realization of individual rights and freedoms. It is determined that one of the important advantages of the Constitution is that "the main characteristics of the constitutionally regulated space in general and the rule of law in particular are given in it from the standpoint and in terms of human and civil rights and freedoms, their recognition and protection. "Analyzing the legislation of Ukraine, as well as international acts, it is determined that the establishment of a person, his life and health of the highest value is a prerequisite for the legal axiom that all other social values are at a lower level and can not contradict it, and hence all other ideas, which determine the restriction of rights and freedoms, are subordinate to human rights and freedoms. It is established that the state is obliged to protect dignity in all areas, which affirms the priority of man and his rights and the prohibition of restrictions, and therefore, the individual in its relationship with the state acts not as an object but as an equal subject. The study found that the restriction of rights and freedoms is not personalized, but extends to the population of the country, while there is a violation of the balance between state power and human freedom, the only justification for which is the protection of other more important human rights and freedoms. achieving law and order, protection of morality and the constitutional order. In addition, it is established that the restriction of human rights and freedoms in a state of emergency is not arbitrary, as modern constitutions are mostly based on the concept of the rule of law, one of the features of which is the recognition of the natural nature of human rights and freedoms. As a result of the analysis of the current legal sources in foreign countries, it is established that there are opportunities to distinguish three models of constitutional restriction of rights and freedoms: the first, which establishes a list of those rights that can be restricted; the second is a list of those that cannot be limited; the third - says that the restriction is possible, but does not specify specific rights, and refers to a special regulation. The result of the study was the identification of basic principles of constitutional regulation of restrictions on rights and freedoms.In particular, it is determined that the restriction of rights and freedoms is caused by the fact that their implementation may lead to increased social tensions, which will impair the normal functioning of government; full awareness of citizens about the limits of the state of emergency, as well as about what rights and freedoms, and to what extent are limited; a clear indication of which rights cannot be restricted; a list of measures taken during the state of emergency; non-discrimination solely on the basis of race, color, sex, language, nationality, religion; restriction of rights and freedoms in a state of emergency must be temporary, and therefore the legislation contains requirements for mandatory indication in the act of state of emergency or other state of the term for which it is imposed; restriction of rights and freedoms in a state of emergency must occur through the prism of parliamentary control; the imposition of a state of emergency does not suspend the activities of the judiciary.

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