RESTRICTIONS OF THE POLITICAL RIGHTS AND FREEDOMS: REGULATORY GROUNDS, MECHANISM OF IMPLEMENTATION
In: Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, Heft 114, S. 18-24
The article examines the problem of restriction of political rights and freedoms. It is emphasized that the protection against unlawful restrictions on political rights and freedoms is particularly important for the functioning of direct and mediatory democracy. The meaning of the concept of «restriction of rights and freedoms» is analyzed. The article addresses the basic principles which should not be violated when the restriction of rights and freedoms is applied. To achieve this goal, the author analyzes the rules of domestic law, the practice of the Constitutional Court of Ukraine, the rules of international law governing these issues. The author differentiates political rights and freedoms into those that may be restricted in accordance with the provisions of the Basic Law of Ukraine and those that are not subject to any restrictions; features of realization of political rights and freedoms in comparison with other groups of rights, such as social and economic, cultural are defined. Some of the political rights and freedoms that may be restricted are analyzed and ways to restrict them are identified, in particular: the right to join political parties, suffrage, the right to peaceful assembly, rallies, marches and demonstrations, the right to equal access to public service, freedom words, thoughts, views and beliefs. It is noted that from the standpoint of the ECHR it is important to check whether the possibility of restricting the exercise of the right was provided by law; whether the purpose of such a restriction is legitimate; whether such a restriction is necessary in a democratic society. The legitimate grounds for restricting human rights enshrined in the Constitution of Ukraine have been identified: public health; social necessity; rights, freedoms and dignity of citizens; public order; economic well-being; national security; territorial integrity; morality of the population. It is emphasized that in accordance with the practice of the Constitutional Court of Ukraine, the restriction of the content and scope of rights and freedoms should be considered as a restriction. It is important that all restrictions were established exclusively by the constitution; were not arbitrary and unjust; the law restricting human rights must be of a general nature; restrictions must be proportionate and justified; they must optimally achieve a legitimate goal with minimal interference in the exercise of rights or freedoms, not to violate the essential content of the relevant right. It is determined that special qualification requirements for holding public positions, as well as participation in the electoral process (implementation of active and passive suffrage) cannot be considered restrictions. It is emphasized that the state, represented by its organs, should refrain from unjustified interference with political rights (for example, from discriminatory restrictions on the suspension of political rights of prisoners, violation of electoral secrecy of the ballot); take measures against possible violations of political rights by third parties (individuals, companies, etc.). It is concluded that restrictions on the exercise of political rights of individuals can be introduced either in favor of guaranteeing the rights of other individuals, or in favor of ensuring the functioning of the state. The legitimate exercise of political rights can be restricted only if the general conditions for interfering with fundamental human rights are met.
