Legal grounds for the derogations from the citizens’ rights and fundamental freedoms in Poland and Ukraine

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National Aviation University

LEGAL GROUNDS FOR THE DEROGATIONS FROM THE CITIZENS' RIGHTS AND FUNDAMENTAL FREEDOMS IN POLAND AND UKRAINE

Nataliia Mushak, Dr. hab. in Law, Professor

Statement of the problem

Since the birth, a person enjoys certain rights and as the process of its formation takes place, the number of such rights expands. These rights are defined in national and international law.

Since the emergence of the idea of human rights, various classifications of the latter have been proposed. Depending on the chosen criterion, the peculiarities of the vision of human rights, the level of scientific development of this issue, a historical sequence of the development of the classification of human rights has developed - from a simple division into arbitrarily isolated components to proposals for complex systems of interrelated human rights. The classification of fundamental rights acquires practical importance, in particular, in the development, creation of constitutions and other laws of any state, since it is able to contribute to ensuring the completeness and validity of the sequence of presentation of such rights in legislation, as well as a differentiated definition of legal means of their protection and protection.

The aim of the article is to define the reasons and the content of the constitutional restrictions of human rights and fundamental freedoms in national legislation of Poland and Ukraine.

Presentation of the main material

Obviously, the division of human rights in society should be approached in the historical aspect. After all, the existing catalog of human rights, recorded today in most international legal documents and constitutions of legal states, was the result of the historical formation of standards and standards of human rights. Ukrainian scientist V. Butkevych notes that at first human rights were imagined as specific rights of the state relating to its subjects or foreigners1. Subsequently, supporters of natural law proposed the idea that, in addition to the rights of the state, there are also natural human rights. In the future, with the strengthening of the role of positivism in law, human rights began to be explained not only by their natural, but also by their positive origin. Thus, in the history of international relations, the first attempt to divide human rights was their classification into natural and positive.

At the end of the 20th century, in 1977, French lawyer Karel Vasak for the first time in the science of interna- tional law proposed the idea of dividing human rights into three levels or generation. This idea was introduced in the work of the scientist entitled “Human Rights: A Thirty-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights”2. The division of human rights was based on the basic values (freedom, equality, fraternal relations) proclaimed during the French Revolution of 1789-1799. In particular, the first generation of human rights constituted civil and political rights (which correlated to the first principle of the French Revolution - freedom). Among them are the right to a fair trial, the right to freedom of speech, religion, etc., that is, rights that were primarily considered an integral part of human rights. For the first time at the legislative level, these rights were reflected in the Universal Declaration of Human Rights of 1948 (Articles 3-21), and later in the International Covenant on Civil and Political Rights of 1966.

The second generation of human rights constituted economic, social and cultural rights (which corresponded to the second principle - equality). These include the right to work, the right to social protection, the right to property, etc. As well as civil and political rights, this block of rights was first reflected in the Universal Declaration of Human Rights of 1948 (Articles 22-27), and later in the International Covenant on Economic, Social and Cultural Rights of 1966.

The third generation of rights constituted the rights of the community, the collective (solidarity). However, from the very beginning it was quite difficult to establish which rights belong to this category. While the rights of the first and second generations were addressed to each person in particular, solidarity rights are addressed to a group of people, a certain community, etc. For example, the right to self-determination, development, the environment, etc. The main problem that arose in connection with the separation of the third generation of rights was the ratio of human rights and the rights of peoples. In the absence of a clear definition of such rights, respectively, and to this day there is no official regulatory consolidation.

In our opinion, it is wrong to state that human rights are divided purely into three generations. After all, it is necessary to take into account the fact that the concept of human rights itself is dynamic and is constantly in the stage of development. After all, as the history of humanity itself shows, the emergence of each new generation of human rights is due to certain fundamental changes in society, a change in worldview3. Accordingly, it is inappro- priate to reduce human rights to the division of them into three groups or three generations. In addition, an approach that involves the division of rights into generations, in our opinion, can weaken the very idea of fundamental human rights and introduce additional confusion into their already established system of the latter.

It should be noted that in domestic legal science, as well as in the research of many international experts, it is quite common to believe that the leading, basic human rights that need priority protection are civil and political rights. Recently, however, such positions have been gradually revised. In our view, the role of economic, social and cultural rights, regarded as optional or even secondary, is unnecessarily narrowing.

Civil and political rights - the rights of the first generation - were constituted and formulated in the process of implementation of bourgeois revolutions, and then specified and legalized in the social and legislative practice of democratic states.no state affairs; the right to equality before the law; the right to life, freedom and security of the individual; the right to freedom from arbitrary arrest, delay or expulsion; the right to public and in compliance with all requirements of fairness, consideration of the case by an independent court, etc. It should be noted that civil and political rights, which are part of the range of fundamental human rights, are often called subjective rights, which is indicated both in foreign and domestic doctrine of international law. The rights of the first generation are recognized by international and national documents as inalienable and subject to restriction under no circumstances. Very often, these rights are actually called “human rights”4, since the rights of the second and third generations are called not so much rights as privileges aimed at protecting a socially weaker population.

In regard of the second generation of human rights, it should be noted that this generation forms more positive than negative rights that require for their implementation the participation of the state.

Social and economic human rights are characterized by two main features. Firstly, they serve as a form of rea- lization of social justice, and not a simple provision of a set of specific benefits. Social rights ensure the real auto- nomy of the individual and are a kind of social guarantee of his dignity. The content and structure of the rights of a decent life become a clear expression of the degree of real freedom that exists in society. The “rights of a decent life” are the conditions of existence that can provide the individual with the productive development of society.

In connection with the progressive development of biological and medical knowledge of the XXI century a new group of rights, or a new generation of human rights, called biological rights appears. Biological, or somatic (from the greek. soma - “body”) rights are increasingly becoming the object of study of international lawyers, who traditionally refer them to the fourth generation of human rights, which, in turn, is in the process of becoming. This problem is relevant because it gives an idea of the new rights that have arisen as a legal response to the developing international community.

The affirmation of the theory of somatic rights itself took place in parallel with the development of bioethics, the main tasks of which were: the knowledge of human values, the comparison of law and morality, the introduction of certain restrictions for the development of somatic rights. At the same time, under somatic rights, the possibility of certain behavior recognized by society and the state was understood, which is expressed in the powers of a person to fully dispose of his body5. That is, an important aspect in this matter is the fundamental recognition of the right.

Despite the fact that today it is quite difficult to systematize an exhaustive list of somatic rights, we will cite the rights around which discussions are most often unfolding. Among them: the right to die; the human right to its organs; reproductive human rights (positive - artificial insemination and negative nature - abortion, sterilization); the right to change sex; the right to clone both the whole organism and its individual organs; the right to organ trans- plantation; use of euthanasia, etc.

In addition to classification of human rights into generations, there is also a division of human rights into absolute and relative in the science of constitutional law. Absolute rights are understood primarily as natural rights, independent of the state, unconditional and immutable, which under no circumstances are inviolable to the autho- rities. All other human rights, except absolute, began to be called relative.

In our opinion, it is the classification of human rights that is the main criterion for establishing restrictions on human rights, which are governed by both the national legislation of each country and the norms of international law. According to Y. Irkha, despite the fact that constitutional rights and freedoms are endowed with the highest legal force, most of them are not absolute, because their implementation may be limited by law. Finding out the truth during the investigation of a criminal case, if it is impossible to obtain information by other means, to prevent the disclosure of information obtained confidentially, or to maintain the authority and impartiality of justice6.

Thus, in particular, the Constitutions of Poland and Ukraine provide for restrictions on human rights. In par- ticular, the Constitution of Poland provides for certain constitutional restrictions. They concern human freedoms regarding personal integrity (Article 41), freedom and protection of the secrecy of correspondence (Article 49), the right of access to official documents and data banks relating to it (Article 51), the freedom to organize and participate in peaceful gatherings (Article 57) in accordance with the principles and in the manner prescribed by law7.

It is important that the Constitution of Poland enshrines a clear scope of restrictions on freedoms and human and citizen rights during the period of martial law, exceptional status, as well as during the period of the state of nat- ural disaster. Thus, during the period of martial law or exceptional status, Article 233 stipulates that it cannot restrict the freedoms and rights specified in Article 30 (human dignity), Article 34 and Article 36 (nationality), Article 38 (protection of life), Article 39, Article 40 and Part 4 of Article 41 (human treatment), Article 42 (criminal liability), Article 45 (access to court), Article 47 (personal benefits), Article 53 (conscience and religion), Article 63 (petition), as well as in Article 48 and Article 72 (family and child).

In turn, during the period of the state of natural disaster, it is possible to restrict the freedoms and rights estab- lished in Article 22 (freedom of economic activity), Parts 1, 3 and 5 of Article 41 (personal freedom), Article 50 (inviolability of housing), Part 1 of Article 52 (freedom of movement and stay in the territory of the Republic of Poland), Part 3 of Article 59 (right to strike), Article 64 (ownership), Article 66(1) (right to safe and healthy working conditions), Article 65(1)(freedom of work), and Article 66(2)(right to rest). At the same time, there is no restriction of freedoms and rights of man and citizen, depending solely on race, gender, language, religion or lack therein, social origin, birth, as well as property status.

The Constitution of Ukraine provides for different grounds for limiting various categories of rights. They include the interests of national security, territorial integrity or public order, in order to prevent riots or crimes, for public health, for the protection of the reputation or rights of other people, for preventing the disclosure of infor- mation obtained confidentially, or for maintaining the authority and impartiality of justice (para. 3 of Article 34); health and morality of the population or protection of the rights and freedoms of other people (para. 2 of Article 35); or, in general, there is no specification of the grounds - except for the restrictions established by law (para. 1 of Article 33)8.

At the same time, it should also be noted that there is a number of constitutional rights that cannot be restricted under any circumstances. They are stipulated by Articles 24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62 and 63 of the Constitution of Ukraine in regard of skin color, political, religious and other beliefs, gender, ethnic and social origin, property status, place of residence, on linguistic or other grounds (Article 24 of the Consti- tution of Ukraine).

This interpretation of Article 64 of the Constitution of Ukraine was provided by the Decision of the Constitu- tional Court of Ukraine in the case on the constitutional appeal of citizens Protsenko Raisa Nikolaevna, Yaroshenko Polina Petrovna and other citizens regarding the official interpretation of Articles 55, 64, 124 of the Constitution of Ukraine (case on appeals of residents of the city of Zhovti Vody) of December 25, 19979.

In turn, Article 64 of the Constitution of Ukraine stipulates that the constitution rights and freedoms of a person and a citizen cannot be limited, except in cases provided for by the Constitution of Ukraine.

Conclusions

The concept of generations of human rights is based on the historical progress of ensuring human rights and fundamental freedoms. Accordingly, the set of rights in need of protection will constantly change in the direction of large-scale expansion. Given these circumstances, we believe that the concept of generations of human rights is a certain “stepping stone for the development of society”, since the emergence of each new generation of human rights will be due to certain fundamental changes in society, changes in the worldview, achievements of mankind.

The proposed classification regarding restrictions on the rights and freedoms of man and citizen is still not sustain- able. Classification tends to expand, taking into account the emergence of new restrictions and the transformation of already traditional restrictions on fundamental rights in the context of the development of modern democratic society.

A common feature of all constitutional restrictions on human rights and freedoms is that their application is due to objective circumstances necessary in a democratic society and under no circumstances should their introduc- tion distort the essence of human rights and freedoms that fall under such restrictions.

Literature

1. Butkevych V. Classification of human rights. International Law. Kyiv: Lybid, 2004. P. 206-208. P. 207.

2. Karel Vasak. Human Rights: A Thirty-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights. URL: https://unesdoc.unesco.org/ark:/48223/pf0000048063

3. Fenwick H., Fenwick D. (2019) The Role of Derogations from the ECHR in the Current “War on Terror”. In: Shor E., Hoadley S. (eds) International Human Rights and Counter-Terrorism. International Human Rights. Springer, Singapore. P. 48. https://doi.org/ 10.1007/978-981-10-4181-5_37

4. Klamberg M. (2021) International Human Rights Law and States of Emergency. In: Rogers D. (eds) Human Rights in War. International Human Rights. Springer, Singapore. P. 12. URL: https://doi.org/10.1007/978-981-15-5202-1_6-1

5. Herlin-Karnell, E. Republican Theory and the EU: Emergency Laws and Constitutional Challenges. Jus Cogens, 209-228 (2021). P. 209. URL: https://doi.org/10.1007/s42439-021-00044-3

6. Irkha Yu. Restriction of constitutional rights and freedoms of man and citizen in the interests of national security of Ukraine in modern conditions. Bulletin of the Constitutional Court of Ukraine. 2015. No. 5. P. 78-87. P. 80.

7. The Constitution of the Republic of Poland of 2 April, 1997. URL: https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm 8 Constitution of Ukraine 28 June 1996. URL: https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text 9 The Decision of the Constitutional Court of Ukraine in the case on the constitutional appeal of citizens Protsenko Raisa Niko-laevna, Yaroshenko Polina Petrovna and other citizens regarding the official interpretation of Articles 55, 64, 124 of the Constitution of Ukraine (the case on appeals of residents of the city of Zhovti Vody) from December 25, 1997. URL: https://zakon.rada.gov.ua/laws/ show/v009p710-97/ed20140222#n54

Резюме

Мушак Н. Правові підстави обмежень прав і основних свобод людини у Польщі та Україні.

Стаття присвячена дослідженню правових засад обмежень прав і свобод людини відповідно до законодавства Польщі та України. Досліджено каталог прав людини, зафіксований на сьогодні в більшості міжнародно-правових документів та консти- туцій Польщі та України, що став результатом історичного становлення еталонів і стандартів прав людини.

Встановлено, що, з огляду на концепцію прав людини, яка є динамічною і перебуває в стадії розвитку, класифікація прав людини змінюватиметься в бік масштабного розширення залежно від змін у суспільстві, досягнень людства, а тому сукупність прав, що виникатимуть у майбутньому, становитиме виклик міжнародній спільноті і, відповідно, потребуватиме подальшого і належного правового захисту.

Автори вважають, що поділяти права людини суто на три покоління є помилковим твердженням. Слід брати до уваги й ту обставину, що сама по собі концепція прав людини є динамічною і постійно перебуває в стадії розвитку. Адже, як показує сама історія людства, поява кожного нового покоління прав людини зумовлена певними докорінними змінами в суспільстві, зміною світогляду. Відповідно, і зводити права людини до поділу їх на три групи чи три покоління є недоречним. До того ж, підхід, що передбачає поділ прав на покоління, на наш погляд, може послабити саму ідею фундаментальних прав людини і ввести додаткову плутанину в уже усталену їх систему останніх.

Визначено, що спільною ознакою усіх конституційних обмежень прав і свобод людини є те, що їх застосування зумов- лене об'єктивними обставинами, необхідними у демократичному суспільстві і за жодних умов їх запровадження не має викривляти сутність прав і свобод людини, які підпадають під такі обмеження.

Ключові слова: права людини, основні свободи, обмеження прав людини, конституційне право, правові підстави, поко- ління прав людини.

Summary

human right legal freedom

Mushak Nataliia. Legal Grounds for the Derogations from the Citizens' Rights and Fundamental Freedoms in Poland and Ukraine.

The article is devoted to the study of the legal principles of restrictions on human rights and freedoms in accordance with the legislation of Poland and Ukraine. The catalogue of human rights, recorded today in most international legal documents and constitutions of Poland and Ukraine, which was the result of the historical formation of standards and standards of human rights, is investigated. It is established that, taking into account the concept of human rights, which is dynamic and under development, the classification of human rights will change in the direction of large-scale expansion depending on changes in society, the achievements of mankind, and therefore the set of rights that will arise in the future will pose a challenge to the international community and, accordingly, will require further and proper legal protection.

Key words: Human Rights, Fundamental Freedoms, Restrictions of Human Rights, Constitutional Law, Legal Grounds, Gen- erations of Human Rights.

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