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

In the Judgment of the European Court of Human Rights in the case of Chiragov and others v. Armenia of June 16, 20 1 5 European Court of Human Rights (ECHR). Case of Chiragov and Others v. Armenia. (2015, June). Retrieved from http://www.refworld. org/cases,ECHR,5582d29d4.html., the issue of human rights was raised in Nagorno-Karabakh, which today is de jure a recognised part of Azerbaijan, but before such recognition was actually controlled by Armenia and was called the “Nagorno-Karabakh Republic” [23, p. 3840]. In this decision, the court referred to the provisions on the laws and customs of warfare on land, the so-called Hague Regulations (The Hague, October 18, 1907) Regulations on the Laws and Customs of War on Land. (1907, October). Retrieved from https://zakon.rada.gov.ua/laws/ show/995_222#Text. and noted that the territory is considered occupied when it is actually transferred to the power of the enemy army. Accordingly, occupation, in the interpretation of The Hague Regulations of 1907, exists when a state exercises effective power over the territory or part of the territory of a hostile state. The term “de facto power” is considered synonymous with the term “effective control” European Court of Human Rights (ECHR). Case of Chiragov and Others v. Armenia, op. cit.. Military occupation is referred to, in particular, when foreign troops are present on the territory or part of the territory, which capable of exercising effective control without the consent of a sovereign state. Accordingly, the European Court of Human Rights recognised the authority to ensure human rights by the Armenian side in the territory of the “Nagorno-Karabakh Republic”, applying the principle of hybrid control and found that the Republic of Armenia, due to its military presence and provision of military equipment, took part in the conflict in Nagorno-Karabakh. It is this military support that has been and remains the decisive factor for conquering and maintaining permanent control over the territory. Furthermore, the budget of the “Nagorno-Karabakh Republic” was formed at the expense of sources of the Republic of Armenia, that is, there is a monetary impact involved. Consequently, the European Court of Human Rights recognised Armenia's obligation to ensure respect for human rights in this territory.

Conclusions

National security issues are governed at the constitutional level, the Fundamental Law of each state defines the national security system and its tasks, the competence of the Parliament, the President of the state, the executive body, individual ministries, and self-government bodies. As the analysis of political and legal relations in different countries of the world has demonstrated, the regulation of the rights and obligations of subjects of law becomes particularly important after the emergence of a military conflict on the territory of a particular state. In this regard, the process of implementing human and civil rights requires more imperative methods of regulation, justifiably takes the form of an emergency procedure for regulating public relations, sometimes relying on means of coercion.

Therewith, legal provisions and actions of executive state and local self-government bodies cannot avoid control by the judiciary if such a provision or action encroaches on the legitimate interests of a person. The judiciary in general and its constituent parts in particular must guarantee control over the other two branches of government. The Constitutional Court of countries, assessing the compliance of laws with the Constitution, implements the principle of the supremacy of the Constitution, thereby ensuring constitutional justice. Courts are competent to verify the lawfulness and constitutionality of decisions taken by other branches of government in cases where such decisions are related to national security.

National security and human rights come into conflict when restrictions on fundamental rights are imposed in the interests of public safety. The task of state and local government bodies in such cases is to ensure a balance between the protection of fundamental rights, on the one hand, and national (state) security, on the other hand. Fundamental rights can only be restricted if there is a legitimate purpose for such restriction. Several articles of the Convention for the Protection of Human Rights and Fundamental Freedoms refer to national security as a legitimate purpose for which it is permissible to restrict certain rights. Only the protection of constitutional values can be the legitimate purpose of restricting fundamental rights. The rights of persons stipulated in the Constitution may be subject to restrictions in the circumstances provided for by law, in order to, firstly, protect the rights of others, secondly, protect the democratic structure of the state, and thirdly, protect public safety, welfare, and morality.

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