Some issued of human rights restriction under conditions of martial law (via the prism of the need approach) and methods of their overcoming
DOI:
https://doi.org/10.61345/1339-7915.2023.5.7Keywords:
restriction of rights, restriction of human rights, national security, legitimate interest, legally protected interest, complex interestAbstract
The purpose of this article is a detailed analysis of the grounds for the restriction of fundamental human rights under conditions of martial law and distinguishing the methods of overcoming the issues of human rights restriction.
For the reduction of the events of personal information leakage, the mentioned publication of private information should be conducted in the interests of national security (right restriction), considering the understanding of the exercise of the legitimate interest of the state. Therefore, while publishing information, which has the content of private information, about an individual, a state should refer to the legal possibility which has an external expression form, is protected by the law and is ensured by it, and is directed on the realization of the interest of national security.
Regarding the restriction of the right of an individual to the freedom of thought and expression, to free expression of views and beliefs, it is necessary to refer to the fact, that a view, thought, word, or belief of an individual can contain data, posing a threat to the national security of Ukraine (when an individual expresses it for another individual or a number of individuals). In such a situation, it relates to the arousal of the legally protected interest of the state. The state develops a legal motivation which is relatively defined within standards or may not have an external form of expression at all, and therefore needs to be proved and its implementation fixed through judicial bodies.
For certain restrictions of the rights of an individual (for example, restriction of the right to freedom of personal philosophy and religion) a complex interest “default interest here with the purpose of further preservation of the interests of the society and state”,, is an important method of overcoming the issues related to its fixation and realization.
The restriction of the right to freedom of association in political parties and public organisations may be achieved through establishing of legal and protected by the law interest only in relation to the consequences of actions (acts or failure to acts), which threaten national security and public order, and in other situations, established by part 1 of article 36 of the Constitution of Ukraine.
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