Legal basis of restriction of constitutional human rights and freedoms in Ukraine

Abstract

This article examines the issue of legal regulation of the restriction of constitutional rights and freedoms of citizens in Ukraine in various political and legal situations. A short excursion into the theory of judgment (discretion) is made, as well as into the theory of discretionary powers of public officials, various definitions of this term are given. Types of discretion are revealed, attention is focused on the need to observe the principles of objectivity and impartiality, equality before the law. It is noted that unfair discrimination is prohibited, and that a proper balance must be ensured, that is, proportionality between the purpose of the decision and its negative consequences for the rights, freedoms or interests of individuals. It is pointed out that the discretion is not arbitrary, it must always be exercised in accordance 
 with the law, must be accompanied by protective measures, including ongoing judicial control, which is emphasized by the Council of Europe. When exercising discretion, the process of observing its main principles, which regulate administrative acts in general and are specified in the relevant acts of the Council of Europe, becomes important. Examples are given when the application of the idea of discretionary powers of state authorities leads to the fact that in some situations it is not possible to actually protect one's rights even through court. In Ukrainian realities, discretionary powers began to be interpreted as any powers when a state authority makes one or another decision. In turn, Ukrainian courts, when considering disputes, sometimes prefer not to violate the powers of state authorities interpreted in this way. It is noted that the procedures for limiting the constitutional rights and freedoms of a person and a citizen have certain features in the exercise of discretion, that is, they are determined by the court or the law, which is provided for in Art. 34, 35, 36, 37, 39, 41, 42, 44, 47, 54 of the Constitution of Ukraine. The constitutional clause regarding the limitation of constitutional rights and freedoms in the conditions of martial law or state of emergency is disclosed.