Limits Of Human Rights Research Articles

COVID-19 pandemic and derogation to human rights.

Under international human rights law, States can limit the exercise of most human rights if it is necessary to protect the rights of others or collective interests. The exceptional circumstances brought by the COVID-19 global pandemic lead to more extensive, on both their scope and their duration, restrictions of human rights than in usual times. This article introduces the States’ specific right to derogate to human rights in circumstances of public emergency and the conditions of a legitimate derogation in the context of COVID-19. It argues that States must ensure that the general measures they adopt to face the crisis do not disproportionally harm vulnerable people.

Significance of Prof. Ekaterina I. Kozlova’s Academic Legacy for the Modern Understanding of the Legislative Process and Legislation

The paper deals with the issues of law-making development in the context of actual ideas of Prof. Ekaterina I. Kozlova with regard to the place of a legislative body in the system of state power, order and the results of its activities, the problems of limits of legislative regulation and the politicization of legislation leading to a decline in the quality of laws. The author substantiates the conclusion that the expansion of legislative regulation creates problems, including conflict-of-laws rules, legal uncertainty, numerous references to regulation carried out through bylaws. Excessive legislative regulation leads to restriction of human rights and freedoms, hinders democratic processes. At the same time, the existence of gaps in the legislative material leads to arbitrary interpretation and unlimited discretion of the enforcement.Prof. Kozlova’s works have been developed in the modern scientific doctrine of parliamentarism, federal legislative process and legislation, public control.

Chemical Castration: Limiting an Absolute Human Right

In 2016, the Indonesian government enacted Government Regulation in Lieu of Law Number 1 of the year 2016, adapted into Law number 17 of the year 2016. This regulation introduces chemical castration as a criminal sanction for child sex offenders, spurring human rights concerns. This article aims to assess whether chemical castration constitutes cruel, inhuman, or degrading treatment from the perspective of Article 7 of the International Covenant on Civil and Political Rights and whether such a human rights violation can be justified. This article employs the normative research method, studying principles of law, systems of law, the synchronization of the law, the history of the law and policies, and laws in comparison to one another. The article bases its findings on laws, books, journals, judgments, and other documents.This article finds that firstly, chemical castration constitutes cruel, degrading, or inhuman treatment and secondly, that such a violation can be justified according to the limitations of human rights. The significance of this article is the basis for the increased limitation of human rights to advance the cause of child protection.

Facebook files – gyűlöletbeszéd törölve? A közösségi médiaplatformok tartalom-ellenőrzési tevékenységének alapjogi vonatkozásai


 
 
 
 A közösségi médiaplatformok elterjedése, a társadalmi kommunikáció online platformokon kialakuló új formája a gyűlöletbeszéd jelenségét is új dimenzióba helyezte. A felhasználók által az online platformokon megosztott gyűlöletkeltő közlések kezelése nem pusztán a növekvő mennyiség és a közlések rendkívül gyors terjedése miatt jelent új kihívást, hanem az online kommunikáció globális természete miatt is. A platformokat működtető internetes forgalomirányító szolgáltatások (Facebook, Twitter stb.) ma már az online kommunikáció megkerülhetetlen szereplői, az interneten zajló információáramlás nagy része ezeken a platformokon keresztül zajlik. A közösségi médiaplatformok szolgáltatói új információs kapuőrként jelennek meg a nyilvánosság működésében azzal, hogy az általuk meghatározott algoritmusok irányítják, szűrik a felhasználók által elérhető online tartalmakat. A szolgáltatók a platformokon megosztott tartalmak ellenőrzése körében, az általuk kialakított szabályok alapján törölnek, blokkolnak tartalmakat. Tevékenységük mindezek alapján komplex módon érinti az alapjogok, köztük a szólásszabadság érvényesülését. Amikor egy platform gyűlöletbeszéd miatt töröl egy felhasználói tartalmat, a véleménynyilvánítás szabadságát érintő döntést hoz, korlátozza azt mások jogainak védelme érdekében, azaz alapjogi konfliktusban hoz döntést, alakítja a szólás határait.
 
 
 

WAIVER OF HUMAN RIGHTS: A RIGHT OR A CHALLENGE?

The author discusses the new tendencies of waiving human rights. In the article they are qualified as a new emerging institute of Human Rights Law. The definition of human rights waiver is discussed, as well as the necessity to give a legal regulation to it. The author presents the existing definitions of human rights waiver, but does not share any of them, particularly most of them define human rights waiver as not utilization of human rights, but the author calls this definition as a passive application of human rights, whilst waiver of human rights has its own content which is discussed in the article in details. Human rights waiver is discussed in the light of the co-relation of the right to autonomy and the principle of paternalism. The author presents some case law on waiver of human rights, which is very rare. Specifically, the author presents the case law of the Constitutional Court of the Republic of Armenia and the case law of the European Court of Human Rights. The legal positions of the mentioned bodies can serve as good criteria in dealing with human rights waiver. Particularly, the Constitutional Court of the Republic of Armenia held a decision dedicated to this issue and qualified waiver of human rights as an exception from the classical perception of human rights ideology. The author agrees with idea reflected in decision of the Constitutional Court concerning the correlation of human rights waiver and right to autonomy, according to which right to autonomy cannot be absolute and that absolute waiver of human rights can, in its turn, violate the human rights. In this context the author highlights the necessity of defining the limits of human rights waiver offering two important directions for discussion of this question; the scope of the rights which can and cannot be waived, the framework and criteria of a waiver of human rights.

Application of preventive measures in the criminal process: current issues

The article is devoted to the research of topical issues of application of the institute of preventive measures in criminal proceedings on the basis of the analysis of normative provisions of the current criminal procedure legislation and law enforcement practice. It is emphasized that the Criminal Procedure Code of Ukraine 2012 (hereinafter - the CPC of Ukraine) provides for an updated system of preventive measures, unlike the CPC of 1960. Attention is drawn to the degree of restriction of human rights and freedoms in the application of preventive measures. The purpose of this article is to analyze topical issues regarding the grounds and procedural order for the application of preventive measures in criminal proceedings and to offer optimal ways of solving them. The author has come to the conclusion that at this stage criminal procedural legislation in terms of regulation of preventive measures needs improvement. The article investigates the types and reasons for choosing preventive measures, which determined the author's position on the need to consolidate at the legislative level the definition of the term "preventive measures". The scientific positions of different authors on the issues related to the application of preventive measures are analyzed, in particular, the views of the processional scientists on the concept of "preventive measures". This made it possible to demonstrate the existence of a rather wide range of scientific proposals for defining this concept at the legislative level. Attention is drawn to the fact that, in practice, the right of a person to liberty and personal integrity when choosing a preventive measure in the form of detention is quite often unduly restricted. The materials of the case law, legal provisions of the ECtHR, Letter of the High Specialized Court of Ukraine on Civil and Criminal Matters "On Some Issues of Preventive Measures During Pre-trial Investigation and Proceeding in the Procedure Provided by the Criminal Procedure" Code of Ukraine of 04.04.2013 are used.

THE RULE OF LAW CRISIS AND SELF-INCURRED IMMATURITY

The COVID-19 pandemic challenged countries around the world to preserve public health which entailed limitations of human rights. We have seen around the world that these limitations were adopted in way that was not in accordance with the proportionality principle, which led to misuse of the state of emergency in general and the interventionism of unseen proportions. The goal of this paper is to present how Bosnia and Herzegovina, as a country in transition, faced the COVID-19 pandemic and give an overview of the events that represent human rights and freedoms violations and abuses associated with the state of emergency.

Problems of incapacitation in the case law of the European Court of Human Rights

Incapacitation is a significant limitation of human rights and personal freedoms. The most serious consequences of legal incapacitation consist in loss or limitation of legal capacity of a legally incapacitated person. The European Court of Human Rights has not yet ruled on the contradiction of the institution of incapacitation with the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the use of incapacitation is only allowed in ECHR jurisprudence in exceptional situations. The ECtHR has pointed out the basic requirements that this institution must meet in order to comply with the convention standard.

Teaching terrorism, saving the state? Education and geopolitical imaginations of terrorism in 12 violently challenged states

The role of education in political socialisation and the importance of terrorism discourses in promoting (or silencing) certain interests have long been acknowledged. This study combines both themes by asking: How do school textbooks, sanctioned by states that are violently challenged by internal opposition, discuss the issue of terrorism? I draw on, and contribute to, four distinct, yet related streams of research: critical geopolitics, critical terrorism studies, geographies of education, and young people's geographies. Simultaneously, while most work on the topic focuses on individual cases (typically of Western countries), I conduct the first comparative analysis of twelve countries from different world regions: China, Egypt, India, Kenya, Nigeria, Papua New Guinea, Peru, Philippines, Russia, Spain, Sri Lanka and Turkey. Contrary to recent claims, considerable heterogeneity persists regarding geopolitical imaginations of terrorism, while US-coined discourses are only infrequently adapted. However, there is still recognisable functionalist convergence as the states under analysis utilise their control of the education system in their internal struggles, mainly by portraying their opponents as evil, by ascribing a positive identity to themselves, and by calling for support by their citizens (including restrictions of human rights and democracy).

Legal Awareness Dynamics of the Population of the South of Russia: Cognitive Aspect

Introduction: the integration processes in the South of Russia are complicated by the ethno-cultural heterogeneity of the macroregion, different levels of socio-economic development of the subregions and differences in the societal values of the ethno-territorial communities. In these conditions, a similar legal culture serves as the basis for the consolidation of different groups of the population. The purpose of the paper is to analyze the dynamics of the legal culture cognitive component of the population of the multi-ethnic territories of Southern Russia. Methods: the empirical basis of the study was formed as part of comparative sociological research, when more than two thousand people were interviewed in the Rostov region, Adygea and Kabardino- Balkaria in 2001-2019. Results: as a rule, the legal culture of a civil-activist type should dominate in a modernized society, when the population understands and recognizes the priority of human rights and freedoms, legal responsibility, shows respect for the existing laws. Therefore, the study of the cognitive components of the legal culture of South-Russian residents includes the analysis of knowledge and perceptions of the respondents about the basic signs of the legal state, the permissibility of limitations of human rights, the degree of importance of the rights of different actors in society, the status of law, legislation in the case of administrative arrest and witness testimony. Conclusions: the empirical tests show a rather low level of specific legal knowledge of the population in all the considered territorial subjects of the South of Russia. Moreover, from the first to the last stages of the study, the dynamics of the knowledge level is decreasing. The priority of the right is not always manifested in the attitudes of the surveyed residents in the macroregion. Against this background, in the Rostov region at different stages of the study a stable group of respondents (about half of the respondents), for whom the legal norm is a legitimate regulator of behavior, was recorded. In the republican segment, the situation is volatile; the lagging dynamics of legal systems of a civil type in the Republic of Adygea and the accelerating one – in Kabardino-Balkaria are revealed.

Constitutional Legal Relations and State Legal Relations: Peculiarities of the Methods of Implementation

The article investigates constitutional legal relations and state legal relations as legal relations united by the common subject of legal regulation and different in purposes and methods of legal regulation. Constitutional legal relations are considered as relations aimed at building the rule of law state, recognition, observance and protection of human rights and freedoms. State-legal relations are aimed primarily at the implementation of public interests. The author concludes that the result of formation of legal relations is significantly influenced by the applied methods of legal regulation. Constitutional legal relations are formed on the basis of the application of such methods as: 1) restriction of interference of public authorities in regulation of human rights and freedoms; 2) self-regulation on issues of own competence of constituent entities of the Russian Federation and bodies of local self-government; 3) the contractual method of regulation on matters falling within the joint competence; 4) delegation of exclusive powers to the lower level of public authority. State-legal relations differ due to the application of the following methods: 1) detailed regulation and restriction of human rights and freedoms in order to realize public interests; 2) legislative delegation of powers on issues of joint jurisdiction; 3) redistribution of powers in favor of the higher level of public authority.The development of constitutional and state-legal relations in modern legal reality is possible only in the context of competition of applied methods of legal regulation. The constitutional norm enforced mainly by state-legal methods is implemented in state-legal relations and excludes the construction of constitutional legal relations. The prevalence of state-legal methods can lead to the construction of pseudo-parallel constitutional legal relations, i.e. legal relations that do not affect the existing legal reality. On the contrary, the preferential application of constitutional and legal methods can be considered as a guarantee of impossibility of abuse of state legal methods in the process of enforcement of public interests.

İnsan və vətəndaşın hüquq və azadıqlarının məhdudlaşdırılması: de lege lata qanunvericiliyin təkmilləşdirilməsi barədə bəzi qeydlər

İnsan və vətəndaşın hüquq və azadıqlarının məhdudlaşdırılması: de lege lata qanunvericiliyin təkmilləşdirilməsi barədə bəzi qeydlər

Criminal consequences of the introduction of martial law in Ukraine

The article is devoted to the study of the criminal consequences of the introduction of martial law in Ukraine. Based on a systematic analysis of the provisions of the current criminal law, other laws of Ukraine, and a critical assessment of the achievements of Ukrainian criminal law science, the author identifies and analyzes seven criminal legal consequences.First, attention is drawn to the fact that the Criminal Code of Ukraine establishes criminal-law consequences solely for cases of imposition of martial law and does not determine them for cases of wartime. Secondly, the author has determined the exact time limits for the existence of martial law, certain moments of its introduction and termination. Thirdly, it was concluded that the lawful restriction of human rights or freedoms, committed in accordance with the law on martial law, is a circumstance precluding the criminality of the act. This circumstance is not provided for by the Criminal Code of Ukraine and has its own grounds and characteristics, determined by special laws. Fourthly, the place of such a sign as the commission of a crime “in the conditions of martial law” in the system of signs of corpus delicti is established. In contrast to the judgment expressed in the literature, it has been proved that this feature relates to time, and not to the setting of a crime. Fifth, certain qualifications of continuing and ongoing crimes are partly committed during, and partly not during martial law. It has been established that a continuing crime can be qualified as committed during martial law, when it was started during martial law, and continued as when the last of the acts that constitute it were committed during martial law. Sixth, certain features of exemption from criminal responsibility in connection with the introduction and cancellation of martial law. In particular, the prerequisites and grounds for exemption from criminal liability for transferring to the side of the enemy in martial law conditions (part 2 of article 111 of the Criminal Code) are defined and cases where the termination of martial law may indicate a loss of public danger (article 48 of the Criminal Code) . Seventh, rules are formulated to account for the commission of a crime using martial law conditions as an aggravating circumstance. Cases when courts can and cases when it is forbidden to courts to consider this circumstance as such, aggravating punishment are defined.Based on the study, recommendations on the practice of applying certain provisions of the criminal law during martial law were formulated, and it was concluded that considering such practices would give impetus to the continuation of scientific research in this area. Separately set out proposals for the legislator to improve the provisions of the Criminal Code of Ukraine, should be applied during martial law.

State-industrial Entanglements in Women’s Reproductive Capacity and Labor in Sri Lanka

In 2013, the Sri Lankan Government issued the Family Background Report (FBR), a circular requiring women to obtain a medical certificate before migrating abroad for domestic work. In 2015, the FBR was revised to further restrict the labor choices of Hill Country Tamil women in the plantation sector. Feminist scholars and activists critique the FBR as an exceptionally restrictive policy that contradicts women’s rights. However, closer examination of the plantation sector’s labor policies and reproductive practices suggests that it is not entirely exceptional but a continuation of the restrictions imposed upon women in Sri Lanka. Drawing from discourse analysis and ethnographic research conducted between 2008 and 2017, I argue that in the context of the plantation sector the plantation clause signals the resilience of strategic entanglements between the state and industrial policies, and exposes the limits of human rights praxis in securing women’s labor and reproductive rights.

Involuntary admission for psychiatric treatment: Compliance with the law and legal considerations in referring physicians with different professional backgrounds

BackgroundInvoluntary admission (IA) for psychiatric treatment is a massive restriction of human rights. Therefore, its execution is regulated by law. During executing IAs referring physicians find themselves in a dual role: support of patients in the recovery process but also safe-keeper of society. In Zurich, Switzerland the law stipulates that physicians regardless of their medical specialization may admit patients who suffer from a mental disorder, mental disability or severe neglect involuntarily if care cannot be provided otherwise, regardless of their decision-making capacity. The referring physician is obliged to examine the patients, hear their views on the IA, inform them about the following steps and about their right of appeal at the civil court. We aimed to assess whether referring physicians can comply with those legal requirements for an IA. Additionally, we examined whether legal considerations differed according to the physicians` professional backgrounds and attitudes towards coercion in general. MethodsWe invited physicians from different in- and outpatient settings who executed IAs to the University Hospital of Psychiatry Zurich to participate in a newly developed online survey. We used correlation analysis, chi-square and t-tests to analyze the responses of 43 psychiatrists with those of 64 other physicians. ResultsIn about 1/3 of the IAs referring physicians were not able to hear the patients' views on the IA, to inform the patients about the following steps and about their right of appeal. Psychiatrists felt more certain with the legal basis of IA compared to physicians other than psychiatrists. Nevertheless, the latter stated that the assessment of the risk for suicide and danger should not be restricted only to psychiatrists. Both groups differed in their attitudes towards coercion with psychiatrists being more critical. ConclusionsInterventions should be developed to facilitate a compliance with legal requirements during IA. Physicians who execute IAs must have a thorough knowledge of the clinical and legal basis for their actions. We recommend specialized consultation teams for the assessment of PES and regular training including ethical discussions, especially for physicians other than psychiatrists.

Имманентные пределы прав и свобод человека: актуальность понятия в различных типах правопонимания

Имманентные пределы прав и свобод человека: актуальность понятия в различных типах правопонимания

Sites of Sickness, Sites of Rights? HIV/AIDS and the limits of human rights in British prisons

ABSTRACTThis article considers one specific strand of discussion around HIV/AIDS, in order to think about the uses and limitations of human rights discourse in late twentieth century Britain. HIV/AIDS presented particular problems for prisons, which were initially presented as breeding grounds of infection. This shifted with the rise of human rights language and laws in the 1990s, but talk of rights for prisoners was not as comfortable a fit as talk of equivalence of care. This story is situated in the broader context of attitudes towards crime, HIV/AIDS, and rights in late twentieth century Britain.

ОБМЕЖЕННЯ ПРАВ ЛЮДИНИ: НЕБЕЗПЕЧНА ТЕНДЕНЦІЯ

This article is devoted to the study of human rights restrictions in Ukraine. The author states that there is an increasing tendency of human rights restriction in Ukraine. Both the state and private persons are the subjects of violation of human rights. In the legislative policy this tendency has increased since the parliamentary election in 2014. That year is known as the beginning of the in Ukraine. But most of the restrictions of human rights made by the laws of Ukraine (which violate the Constitution of Ukraine) since then have no relation to military activities and national security. The author identifies a number of tendencies: 1) recent amendments to Ukrainian legislation not only limit constitutional rights but also violate the principles of law and constitutional guarantees of human rights; 2) due to the usage of modern informational technologies, violations of the right to privacy are total; however, the law-enforcement agencies do not struggle with such violations systematically; 3) many constitutional human rights are violated by the laws devoted to family relations; those laws are being passed by the Parliament of Ukraine with the very high speed that is not quite usual for legislative process in Ukraine; 4) both the state and private persons use modern technologies to violate human rights; on the basis of modern technologies new ways of violation of human rights appear. Conclusions. The restrictions of human rights, provided by the laws, always have some reasons. But neither political, nor economical, nor social nor any other interest can be the reason for violation of human rights and freedoms. "In spite of the fact that the air was never so full of theories of liberty and wild declarations of «rights», there has been a steady curtailment of «personal freedom»". These words of the great American Henry Ford are so relevant for modern Ukraine.

ДЕТАЛИЗАЦИЯ КРИТЕРИЕВ ПРАВОМЕРНОГО ОГРАНИЧЕНИЯ ПРАВ ЧЕЛОВЕКА В УГОЛОВНОЙ СФЕРЕ

ДЕТАЛИЗАЦИЯ КРИТЕРИЕВ ПРАВОМЕРНОГО ОГРАНИЧЕНИЯ ПРАВ ЧЕЛОВЕКА В УГОЛОВНОЙ СФЕРЕ

LEGAL REGULATION OF HUMAN RIGHTS, RIGHTS OF THE PEOPLE AND RIGHTS OF THE NATION IN UKRAINE

The purpose of the study is to find ways of overcoming the etatistician legal tradition of regulating human rights in Ukraine in relation to the rights of the nation and the people. The contradictions between the articles of the Constitution of Ukraine on a person and his rights with his articles on restriction of human rights are revealed; between articles about the Ukrainian people and articles about the nation and national interests. The causal relationship between the positivist understanding of law as established and regulated by the state and the practice of legal regulation of human rights, the nation and the people as subjective objects, and not the natural subjects of civil society and the state - theirs, is investigated. servant. Alternative legal regulation based on the dialectic of the individual (person), special (nation), general (people) with the defining role of the people in the law, which includes not only legislation, but also norms of morality, customs, traditions, treaties, is argued. The ideological extremes of legal regulation are criticized: the hypertrophy of anthropocentrism and the sovereignty of the people. The key importance of the elimination of poverty of the people and the creation of a majority of middle-class middle-class majority for the achievement of the main goal of legal regulation of human rights, nation and people – to ensure their freedom is substantiated. As a result of the study, conclusions are drawn: on the advisability of adopting an official legal doctrine in Ukraine on the basis of modern European law of understanding as a source of law; on scientific development of subjects of non-state legal regulation; on amendments to the Constitution of Ukraine regarding the relation between the concepts of nations and peoples and the possibility of limiting a person not in rights, but in their implementation; on the criteria for the equitable legal regulation of mutual human rights, the nation and the people: its fullest endorsement by the majority of these entities as equal in their rights on the basis of the widest consensus between them throughout Ukraine and its individual regions and a steady tendency to increase the middle class in composition people.