Науковий вісник Ужгородського національного університету. Серія Право (Oct 2023)
Limitation of human and citizen rights and freedoms and the role of the Supreme Council of Justice in ensuring independent justice and everyone’s right to protection of rights and freedoms by an independent court
Abstract
The article emphasizes the change of the paradigm of the constitutional-legal mechanism of limiting the rights and freedoms of a person and citizen, as well as increasing the role of the Supreme Council of Justice in ensuring independent justice. It is emphasized that it is necessary to distinguish between the concepts of “restriction of rights and freedoms” and “fixation of the boundaries of the very essence of rights and freedoms”. Attention is drawn to negative human rights and the fact that they involve negative obligations of the state and its agents to refrain from any actions aimed at their violation or illegal restriction. It is characterized by the restriction of those rights and freedoms of a person and a citizen, which are most often restricted in the member states of the Council of Europe: the right to freedom and personal integrity, the right to private life, freedom of thought and conscience. The implementation of the prescription of Part 2 of Art. 35 of the Constitution of Ukraine, which defines the framework of restrictions on the human right to freedom of outlook and religion, through the Criminal Code of Ukraine. Attention is drawn to the fact that the state’s establishment of a number of legal norms that nullify a number of human and citizen rights and freedoms is a violation of human rights and fundamental freedoms guaranteed by the Convention on the Protection of Human Rights and Fundamental Freedoms. It is noted that an effective judicial procedure significantly increases the level of their protection (rights and freedoms), as it contains a number of guarantees against their arbitrary restriction, contributes to the rendering of a legal and well-founded decision. The article also draws attention to the legal status of the High Council of Justice. The issue of independent justice, the right of everyone to protection of rights and freedoms by an independent court is raised. The role of the High Council of Justice in ensuring independent justice and everyone’s right to effective judicial protection is defined.
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