TY - JOUR

T1 - On Specifying the Criteria of Lawful Restriction of Human Rights in the Criminal Sphere

AU - Plokhova, Valentina L.

N1 - Плохова В.И. Детализация критериев правомерного ограничения прав человека в уголовной сфере // Вестник Томского государственного университета. - 2019. - № 448. - С. 239-245

PY - 2019/11

Y1 - 2019/11

N2 - 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.

AB - 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.

KW - legality

KW - validity

KW - criminal law

KW - specification

KW - constitutional norms

KW - principles of law

KW - norm of control

KW - decisions of Constitutional Court

KW - complaint

UR - https://elibrary.ru/item.asp?id=41763360

U2 - 10.17223/15617793/448/30

DO - 10.17223/15617793/448/30

M3 - Article

SP - 239

EP - 245

JO - Вестник Томского государственного университета

JF - Вестник Томского государственного университета

SN - 1561-7793

IS - 448

ER -