On Specifying the Criteria of Lawful Restriction of Human Rights in the Criminal Sphere

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Abstract

The aim of the article is a detailed specification of formal and natural criteria of lawful restrictions of human rights in the criminal sphere and the perfection of the response mechanism even to rejected complaints. The empirical basis of the research is 114 decisions of the Constitutional Court of the Russian Federation, concerning criminal and legal norms, made in 2016. They were analyzed using concrete and sociological, comparative and legal methods. As a result of the research, the following conclusions were drawn. (1) The practice of the constitutional control over criminal law standards shows a small share of complaints (36, 8%) on the validity of restrictions of human rights. Such complaints contain a big list of violations of constitutional norms although there are detailed descriptions of some of them in the RF Constitution, in the decisions of the RF Constitutional Court and in the judgments of the European Court of Human Rights. (2) Out of the three generalized criteria of lawful restriction of human rights-legality, validity and proportionality-legality is the most specified in the formal aspect. Validity and proportionality are generally expressed in principles. Most elements of these criteria are covertly fixed in declarations; they are formulated in international treaties, judgments of the European Court of Human Rights, the RF Constitution. Besides, some criteria can be considered both in terms of form and content. Hence, various criteria of lawful restriction of human rights follow from one (some) article(s) of the RF Constitution. (3) In the complaint, it is necessary to indicate the violated criterion of lawful restriction of human rights and the aspect in which the constitutional norm was violated. In rejected complaints, the RF Constitutional Court should be informed about the correct aspect of the violated criterion of lawful restriction of human rights, which the Court perceived incorrectly. The Office of the Prosecutor General of the Russian Federation, the RF Supreme Court should be obliged to inspect cases that applied norms, whose constitutionality has been repeatedly appealed, but complaints have not been declared admissible by the RF Constitutional Court due to the incorrect accent on the specific content of the generalized criterion of lawful restriction of human rights.
Translated title of the contributionДетализация критериев правомерного ограничения прав человека в уголовной сфере
Original languageEnglish
Pages (from-to)239-245
Number of pages7
JournalВестник Томского государственного университета
Issue number448
DOIs
Publication statusPublished - Nov 2019

OECD FOS+WOS

  • 6 HUMANITIES
  • 5.06.UU POLITICAL SCIENCE

State classification of scientific and technological information

  • 10 STATE AND LAW. LEGAL SCIENCE

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