Limitation of Human Rights and Freedoms by Forms
Abstract
Abstract. For legal regulation of social relations, it is important to choose the appropriate form of limitation on human rights and freedoms. For example, the introduction of restrictive measures during emergencies and martial law has demonstrated the need for their adjustment (from a complete ban on certain actions to the conditionality of the exercise of rights under certain circumstances) depending on the current situation. The purpose of this article is to define the concept of the form of limitation of human rights and freedoms, taking into account the philosophical and legal aspect, to distinguish the forms of such restrictions, and also to indicate on the basis of which acts they may be regulated. The methodological basis was the dialectical method, which allowed the study of the unity of the content and form of human rights restrictions, the primacy of content over form. The structure of methodological approaches in the analysis of Ukrainian legislation includes systematic and comparative methods. The axiological approach was applied when considering the issue of the unity of the substantive and formal in the definition of the rule of law. Research results. The author substantiates that the choice of the form of restrictions on human rights and freedoms is determined by the purpose of such restrictions and emphasises the importance of timely replacement of the ‘outdated’ form with a more appropriate one depending on the circumstances (economic, social, natural and other factors). Ignoring this requirement will lead to the ineffectiveness of human rights restrictions and their levelling. The study notes that, given that the Constitution and laws of Ukraine regulate general issues of limitation on human rights (defining general rules of conduct in relation to an indefinite number of persons), on the basis of and in accordance with their provisions, the procedure for applying restrictive measures, including adaptation to specific circumstances and selection of the most optimal form of restriction of human rights and freedoms, may be carried out at the level of by-laws and court decisions. The scientific novelty of the publication is the author’s definition of the forms of restriction, and the abolition of a constitutional human right as one of them. Practical significance. Determination of the form of restriction of human rights and freedoms is important in assessing the legality of such restrictions and influences the formulation of the criteria for the admissibility and proportionality of their establishment.
Keywords: human rights; forms of limitation; prohibitions; legislative omissions; cancellation of components of law; rule of law.
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