Foreign experience in constitutional and legal regulation of restrictions on human rights in conditions of emergency and martial law

2021 ◽  
Vol 28 (2) ◽  
pp. 55-65
Author(s):  
Oleksandr M. Bukhanevych ◽  
Serhii O. Kuznichenko ◽  
Anastasiia M. Mernyk
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Well Being ◽  
Legal Regulation ◽  
Martial Law ◽  
Foreign Experience ◽  
Foreign Countries ◽  
General Scientific ◽  
The Individual ◽  
Exhaustive List

The study investigates the foreign experience of constitutional and legal regulation of restrictions on human rights in conditions of emergency and martial law in Macedonia, Armenia, Belarus, Moldova, Georgia, Latvia, Lithuania, Albania, Azerbaijan, which is relevantin modern conditions, based on the presence of local military conflicts, emergencies, or the possibility of their existence in many countries of the world. The purpose of this study was to analyse the text and content of the constitutions of foreign countries to clarify and explain the groundsfor restricting human and civil rights and freedoms in conditions of emergency and martial law. To achieve this purpose, the study employed a system of methods of scientific cognition, namely general scientific (analysis, synthesis), particular (comparative, quantitative and qualitative analysis, approximation), as well as special legal (formal legal, comparative legal) methods. The practical value of the study lies in the identification of four prevailing trends in the constitutions of foreign states to the procedure for determining the scope of restrictions on human rights under special regimes: 1) consolidation of an exhaustive list of rights and freedoms in the constitutions, which cannot be restricted during the period of emergency and martial law; 2) consolidation of an exhaustive list of rights and freedoms in the constitution, which can be restricted to protect human rights, the democratic structure of the state, public safety, the well-being of the population and morals; 3) combining the first two options for consolidating restrictions in the text of the constitutions; 4) consolidation of the possibility of limiting the rights and freedoms of the individual in the texts of constitutions by state authorities under special legal regimes in the interests of national security without specifying partiular rights and freedoms that may (or may not) be restricted

Ethical boundaries of the legal regulation of conditions of carrying out genetic screening in prenatal diagnosis in Russia and abroad

2020 ◽  
Author(s):  
M.V. Medvedev , G.N. Suvorov , S.S. Zenin et all
Keyword(s):  
Prenatal Diagnosis ◽  
Great Britain ◽  
Legal System ◽  
Genetic Screening ◽  
Legal Status ◽  
Legal Regulation ◽  
Ethical Problems ◽  
Foreign Experience ◽  
Foreign Countries ◽  
General Scientific

Objectives. The purpose of this study is to study the essence of ethical problems that arise in the field of genetic screening for prenatal diagnosis (PND) and determine possible ways to overcome them by legal means, taking into account the existing foreign experience. Materials and methods. Normative legal acts and doctrinal sources of Great Britain, Germany, Ireland, France and Switzerland are studied. Methods used: General philosophical, General scientific, private scientific, special (structural-legal, comparative-legal, formal-legal). Results. Ways to resolve ethical problems that arise or may arise in the future as a result of genetic screening for PND, which can be applied within the Russian legal system, are proposed. Conclusions. It is stated that most of the identified ethical problems are related to the lack of normative consolidation of the legal status of the fetus. It is presumed that the beginning of ethics should serve as the guide for legislation in this area. At the same time, it is emphasized that the legal regulation of genetic screening in PND should be flexible enough to optimally ensure the interests of all participants in these relationships. In addition, in this direction, it seems appropriate to refer to the experience of a number of foreign countries, whose legislation provides for fairly strict requirements in the field of PND.

Approaches to understanding the category "special legal regimes"

2021 ◽  
Vol 28 (1) ◽  
pp. 71-78
Author(s):  
Oleksandr M. Bukhanevych ◽  
Anastasiia M. Mernyk ◽  
Oleh O. Petryshyn
Keyword(s):  
Civil Rights ◽  
Public Relations ◽  
Legal Regulation ◽  
Special Focus ◽  
Negative Consequences ◽  
Legal Regime ◽  
Martial Law ◽  
State Of Emergency ◽  
Legal Personality ◽  
Legal Regimes

The study investigates the main approaches to understanding such legal categories as “legal regimes” and “special legal regime”, and provides their classification. Special legal regimes serve as the legal basis for restricting human and civil rights and freedoms; therefore, the relevance of the study of the concept, types, and main features of special legal regimes is beyond doubt. The authors of the study consider the relationship between the categories of special legal regime of a state of emergency and martial law, and describe the main grounds for their imposition. The authors noted a need for a clear, consistent legal regulation of the model of behaviour aimed at overcoming and eliminating negative consequences of an emergency and military nature. Attention is focused on the fact that in Ukraine, the regulation of public relations arising in connection with emergencies and military situations has become particularly important after the emergence of a military conflict on the territory of Ukraine and the spread of the COVID-19 virus. The study provides the author’s vision of the categories “legal regimes” and “special legal regimes”. it is proposed to interpret the legal regimes as the regulatory procedure, which is expressed in a set of legal means that describe a special combination of interacting permits, prohibitions, and obligations, while implementing a special focus of regulation. The latter should be interpreted as a form of public administration that makes provision for the restriction of the legal personality of individuals and legal entities, introduced as a temporary measure provided by means of administrative and legal nature, and aimed at ensuring the security of the individual, society, and the state. The study provides the classification of special legal regimes and contains proposals to distinguish them according to the content and basis of occurrence as follows: state of emergency, martial law, state of siege, state of war, state of public danger, state of tension, state of defence, state of threat, state of readiness, state of vigilance

THE RIGHT TO LOCATE AND PROSPECTS OF ITS LEGAL REGULATION IN UKRAINIAN LEGISLATION

2017 ◽  
Author(s):  
Valeriy Aveskulov ◽  
◽  
Yuliia Deresh ◽  
Albina Romanchuk ◽  
◽  
...  
Keyword(s):  
Working Conditions ◽  
Legal Status ◽  
Protective Action ◽  
Legal Regulation ◽  
Economic Pressure ◽  
Foreign Experience ◽  
Labor Legislation ◽  
Foreign Countries ◽  
European Experience ◽  
The Right

This article is devoted to the study of the right to lockout, the legal status and procedure of which are not regulated in the labor legislation of Ukraine. The article considers the experience of foreign countries and options for legislative consolidation of the right to lockout. It is established that there are two types of lockout - defensive and offensive, the first of which acts as a reaction of the employer to the strike. The offensive does not require such a precondition as a workers' strike and is a means for the employer to impose its working conditions. Based on this, it was determined that most countries allow the employer to resort to such a measure if the lockout is defensive, but the procedure for its implementation contains a number of restrictions. The article analyzes the provisions of the European Social Charter, the Law of Ukraine "On the Procedure for Resolving Collective Labor Disputes (Conflicts)", the Draft Labor Code of Ukraine dated 04.12.2007 № 1108, the Draft Labor Code of Ukraine dated 27.12.2014 № 1658, the Draft Labor Code of Ukraine 08.11.2019 № 2410-1, Draft Labor Code of Ukraine dated 08.11.2019 № 2410, Draft Law on Strikes and Lockouts dated 27.12.2019 № 2682. The article considers the views of domestic scholars on the feasibility of enshrining in Ukrainian law the employer's right to lockout, some of which consider it appropriate to allow the right to lockout as a protective action of the employer in response to workers' strike, but with some restrictions. Other scholars advocate a direct ban, as such an employer's right may violate workers' right to strike. Based on the positions of scientists, foreign experience and analysis of numerous legislative attempts to determine the legal status and procedure of the right to lockout, a variant of its enshrinement in the labor legislation of Ukraine is proposed to balance the rights and interests of employees and employers and avoid economic pressure on employees. The authors consider it appropriate to consolidate the right to lockout if it is defensive, following the example of European experience.

scholarly journals Globalization/Human Safety: A Biopolitical Approach

2021 ◽  
pp. 19-30
Author(s):  
Anastasia Kravets
Keyword(s):  
Social Justice ◽  
Civil Rights ◽  
Well Being ◽  
Global Dimension ◽  
Global Level ◽  
Political Consequences ◽  
Human Safety ◽  
Survival And Reproduction ◽  
The Individual ◽  
The Impact

Biopolitics focuses on the impact of globalization on the well-being of the individual and society as a whole. Accordingly, issues of human security and the threats posed by the process of globalization, as well as the transition from a disciplinary regime to a regime of governance at the global level, which, based on democratic values and liberal norms, are raised. That is why the problem of social justice and equality is solved. The issue of human safety within global governance should be emphasized. It is about a sense of security as a basic human need. Moreover, it is about the global security necessary for the survival and reproduction of humanity as a whole. As well as the study of potential socio-political consequences of the development of biotechnology and genetic engineering in the global dimension. This huge set of issues must be concretized, systematized, and logically structured through the analysis of the impact of globalization on the state of the individual, its relationship with the concept of bios; introduction at the international level of the doctrines of social justice, protection of human and civil rights at the global level; study of potential socio-political consequences of the development of biotechnology in the global dimension; introduction of new biopolitical models of power, governance and international relations; analysis of the theory of global evolution.

scholarly journals THE CONCEPT OF THE ADMINISTRATIVE AND LEGAL TRANSFORMATION OF CONSTITUTIONAL ORDER, SECURITY AND RUSSIA'S WELL-BEING PROTECTIVE MANAGEMENT

2017 ◽  
Vol 21 (3) ◽  
pp. 148-154
Author(s):  
E. V. Pozdnyakova
Keyword(s):  
Civil Rights ◽  
Legal Protection ◽  
Well Being ◽  
Functional System ◽  
Legal Regulation ◽  
Integrated System ◽  
System Stability ◽  
Constitutional Order ◽  
Vital Functions ◽  
Legal Security

This article presents the concept of the administrative and legal transformation of constitutional order, security and Russia's well-being protective management. The author reveals the idea of protective management as an integrated system of measures, taken by the Russian Federation legislation, used to ensure the adequate implementation of subjective rights. Special attention is paid to a comparative analysis of such legal concepts as "administrative and legal security" and "administrative and legal protection" of the constitutional order, security and Russia's well-being. Noting the fact that these concepts can be united by common objects, objectives and the administrative-legal protection regime, the author points out that the methods for achieving them are deifferent and they do not coincide at all. Based on the research results, the following objectives of the administrative and legal transformation of protective management are highlighted: the Russian statehood preservation as a single territorial integrity of the state, ensuring the national democratic system stability, preserving civil-society institutions, human and civil rights and freedoms, and especially preventing threats to economic crises. With the help of linguistic analysis, the legal category "administrative and legal support" is revealed. And in this context, it is logical to conclude that the concept of "administrative legal protection" can be viewed from several positions: both as a combination of different means and conditions aimed to carry out certain tasks of vital functions of the functional system and as the process of creating and providing these means and conditions At the same time, it is clarified that the content of administrative and legal protection of the constitutional order, security and Russia's well-being is not limited to legal norms and lawmaking. The author points out that the concept of "administrative legal protection" differs from the term "legal system", and also compares it with the categories "lawmaking", "legal regulation" and "legal means". To sum it up, the author concludes that the administrative and legal transformation of the constitutional system, security and Russia's well-being protective management acts as a set of standards and legal activities of authorized entities.

scholarly journals Unrestricted (absolute) rights and freedoms of man and citizen in the Constitution of the Russian Federation of 1993 and international acts

2019 ◽  
Vol 2019 (4) ◽  
pp. 69-75
Author(s):  
Aleksandr Podmarev
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Russian Federation ◽  
Legal Status ◽  
Religious Affiliation ◽  
International Standards ◽  
Constitutional Court ◽  
Federal Law ◽  
The Russian Federation ◽  
The Individual

The 1993 Constitution of the Russian Federation as one of the principles of the legal status of an individual establishes the possibility of restricting human and civil rights and freedoms, while also providing for the necessary conditions for imposing such restrictions (the existence of a constitutional goal of restriction; setting restrictions only by federal law; proportionality; compliance with international standards of restrictions; prohibition restrictions on rights based on social, racial, national, linguistic or religious affiliation). The need for the existence of restrictions on the rights and freedoms of the individual is due to various reasons: the protection of the foundations of the constitutional order, the rights and freedoms of other persons, and the interests of the state. However, certain human rights and freedoms cannot be restricted under any circumstances; this so-called absolute rights and freedoms. But neither national legislation nor international law contain a precisely defined list of absolute rights and freedoms. The aim of the article is to identify in the Constitution of the Russian Federation of 1993 and in international acts unrestricted (absolute) rights and freedoms of a person and citizen. The relevance of the research topic for the Russian constitutional legal science is due to the fact that certainty in the understanding of the list of unrestricted rights and freedoms is necessary for the improvement of lawmaking and law enforcement activities. The article examines the provisions of the Constitution of Russia, the main international legal acts on human rights, the legal positions of the Constitutional Court of the Russian Federation.

scholarly journals Theoretical Tools for Studying the Phenomenon of the Influence of the European Court of Human Rights Practice on Legal Activities in Ukraine

2019 ◽  
Vol 1 (85) ◽  
pp. 20-30
Author(s):  
В. А. Завгородній
Keyword(s):  
Human Rights ◽  
Scientific Intelligence ◽  
Legal Regulation ◽  
Practice Research ◽  
Human Rights Practice ◽  
European Court ◽  
Research Problems ◽  
General Scientific ◽  
The Subject ◽  
Selection Of

In this article, the existing approaches to general theoretical jurisprudence have been studied to understand the concept of «methodology» and its structure, on the basis of which the methodology of the European Court of Human Rights practice research and its influence on legal activity in Ukraine is determined. In the opinion of the owner, the most suitable for solving our research tasks is an approach in which the methodology of legal knowledge includes methodological tools and other designs, logically distributed by the conceptual and instrumental levels.As a result, the study found that the theoretical toolkit for the study of the phenomenon of influencing the practice of the European Court of Human Rights on legal activity in Ukraine are: a) universal epistemological principles (comprehensiveness, completeness, historicism, objectivity), which are the imperative requirements that guided the researcher; b) human-centered and sociological methodological paradigms that are interconnected, do not contradict and complement each other, as well as the provisions of the theories of legal influence, legal regulation, legal practice, law-making, legal interpretation, enforcement, legal relations, which became the basis for the formulation of research problems; c) anthropological, complex, dialectical, synergetic, axiological approaches, by which the strategy of scientific intelligence is determined, its specific perspective, selection of investigated facts and interpretation of research results are carried out; d) general scientific and special methods of cognition that ensure the receipt of true scientifically sound knowledge about the subject of research.

scholarly journals THE IMPLEMENTATION OF THE ADVERSARIAL PRINCIPLE AT THE PRE-TRIAL STAGES OF CRIMINAL PROCEEDINGS IN THE RUSSIAN FEDERATION AND IN FOREIGN COUNTRIES

2020 ◽  
Vol 16 (3) ◽  
pp. 108-119
Author(s):  
Ирина Попова ◽  
Анастасия Иванова
Keyword(s):  
Practical Interest ◽  
Legal Regulation ◽  
Regulation Mechanism ◽  
Criminal Proceedings ◽  
Scientific Methods ◽  
Foreign Countries ◽  
The Social ◽  
Criminal Procedure Law ◽  
Legitimate Interests ◽  
General Scientific

To achieve the purpose of criminal proceedings, law enforcers must have an arsenal of procedural tools in order to ensure the operation of the legal regulation mechanism. The system of principles of criminal proceedings, serving as the basis for the effective operation of the norms of criminal procedure law, includes the adversarial principle. The implementation of this principle has a number of features in pre-trial proceedings. In this aspect, a comparative study of the adversarial principle in national criminal proceedings and in foreign criminal proceedings is of both scientific and practical interest. Purpose: analysis of the adversarial principle at the pre-trial stages in national and foreign criminal proceedings, as an element of the legal regulation mechanism. Methods: dialectic methods as a general scientific method of cognition, as well as specific scientific methods: interpretation method, comparative legal, technical legal, formal logical in their various combinations. Results: the study reveals that the adversarial principle operates in various types of criminal process in the mechanism of legal regulation of Russia and foreign countries. To achieve the social purpose of criminal proceedings, which provides for the protection of rights and legitimate interests, the adversarial principle must be implemented, including at the pre-trial stages of criminal proceedings.

scholarly journals Limits of permissible intervention in biomedical studies of somatic human rights

2020 ◽  
pp. 92-96
Author(s):  
Myroslava Hromovchuk
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Biomedical Research ◽  
National Level ◽  
Central Place ◽  
Legal Regulation ◽  
Constitutional Rights ◽  
Moral Ideal ◽  
The One ◽  
Definition Of

The article examines the features of the essence and content of the constitutional principles of human rights as a basis for legalregulation of biomedical research of somatic human rights. The author reveals the essence and content of international and nationallegal principles of human biomedical research. It was found that there are currently no standards of legal regulation of human rightsprotection during biomedical research at the national level and at the level of international acts in this field. It is pointed out that theissue of human and civil rights and freedoms in the conditions of formation and development of civil society in democratic states occupiesa central place. It is established that the effective provision of constitutional rights and freedoms of man and citizen is associatedwith the need for restrictions in their implementation. It is determined that it is of fundamental importance that the attitude to law, tohuman rights and freedoms for the Ukrainian legal consciousness is impossible only through the awareness of a certain moral ideal asa goal in one’s own life. Therefore, any legal problem for the Ukrainian mentality is inextricably linked with the values of goodnessand justice, truth and humanity.It is noted that the approaches to the definition of “freedom” have both common and different features or certain clarificationsregarding certain manifestations. Without resorting to controversy about the truth or falsity of each of them, by generalizing their content,we can conclude that freedom, on the one hand, is an action according to their own desires, on the other - an action against them.The limits of permissible intervention in conducting biomedical research with human participation have been studied, as well asthe ethical examination of biomedical research as a way to protect human rights has been determined.

scholarly journals International legal regulation of the right to adequate environment

2003 ◽  
Vol 55 (1) ◽  
pp. 89-103
Author(s):  
Vid Vukasovic
Keyword(s):  
Human Rights ◽  
Environmental Protection ◽  
Environmental Law ◽  
Well Being ◽  
Legal Regulation ◽  
Environmental Legislation ◽  
International Treaties ◽  
Aarhus Convention ◽  
The Right ◽  
The Eu

The article deals with some key issues concerning the evolution of the concept of the right to adequate environment. The evolution took several decades to reach the present state in which it is obvious that the right has been accepted as one of the so called third generation human rights by both doctrine and practice, in international environmental law as well as in national environmental legislation of a number of countries. In the first phase of development only some elements of the right existed within the ?classical? human rights (the right to life, the right to health etc.) of so called first and second generation. The turning point was the UN Stockholm 1972 Conference on the environment. The right was inserted in the first principle, of the Declaration accepted by the conference, and already had most of its main elements: the right to adequate living conditions in an environment with the quality that not only guarantees healthy life but a life in dignity and well-being. After the Stockholm Conference, the right was embraced by a part of the doctrine, and increasingly mentioned and discussed within the frame of the UNEP, the relevant UN specialized agencies, as well as by some other international organizations active in the field of environmental protection. The result of this acceptance was an increasing insertion of the right in international treaties as well as in various declaratory documents, on both universal and regional levels. The author devotes a part of his article to the development in Europe, and especially to the work of the Council of Europe, the UN Economic Commission for Europe (UNECE) and the EU. The author believes that most important development in Europe occurred within the ?Environment for Europe Process?, under the aegis of the UNECE. The result of it was signing of the Aarhus Convention (1998), one of most important international treaties signed until now. First of all, it regulates two important fields - protection of human rights and protection of environment. In it not only the right to adequate environment is explicitly mentioned in the Art. 1, but the main elements of the right are regulated in detail. The three ?pillars? of the Convention are devoted to the right to environmental information, the right of citizens to participate in environmental matters and the right to access to justice in matters concerning the environmental protection. It should be added that the Aarhus Convention has become a part of the EU legislation. Due to that, the whole process of implementation of the convention has become unavoidable for all candidate countries, as a proof of their intent to apply in practice environmental legislation and to democratise their societies.

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