Relative human rights in the conditions of special legal regimes

The right to a fair trial has both substantive and procedural asp ects. This means that everyone has the right not only to a fair trial but also to access to justice. Substantive and procedural aspects are inextricably linked: insignificant justice of the court, if the existence of the court was not ensured, and vice versa. Thus, in the judgment of the European Court of Human Rights «Golder v. The United Kingdom» [32], the court was called upon to resolve two issues arising from the facts of the case:

1) Is Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms [21] limited to the right to a fair trial in ongoing trials, or does it further provide the right of access to a court for anyone wishing to bring an action?

2) Are there any indirect restrictions on the right of access to court?

Answering the first question, the court concluded that the right of access to court is a component of a fair trial along with an impartial court, reasonable time, presumption of innocence. These constituent elements are different, but are the result of the same basic idea of a fair trial, and, taken together, constitute a single right. Explaining the content of the article, the court applied the principle of unity and integration, setting different elements on one plane. The terms of the article, taken in their context, give reason to believe that the right of access to court is included in the number of guarantees set out in the article. Attributing Article 6 exclusively to legal relations beginning after a court case, literally understanding the text of the article , can lead to state arbitrariness, when public authorities abolish courts altogether or refer cases to the jurisdiction of state bodies dependent on the government. It seems illogical and absurd that Article 6 of the Convention describes in detail the procedural guarantees provided to the parties to the proceedings, while not protecting what in itself actually allows the use of such guarantees, i.e. access to justice. The fairness, publicity and efficiency of the trial are of no value if the trial is not conducted.

However, in exercising the right of access to court, there are justified restrictions due to certain legal circumstances, as the right of access to court is not absolute. In addition to the limits set by the very content of any right, there is room for restrictions that are allowed indirectly. The right of access to court, by its very nature, requires such regulation by the state, which may vary in time and place depending on the needs and resources of society and individuals. It goes without saying that such regulation should never harm the essence of the right of access to court and should not contradict other rights guaranteed by the state.

Conclusions

In general, we see that in the context of special legal regimes there are a large number of human rights that are relative, not absolute and may be limited the state and its bodies, local authorities. During the operation of special legal regimes, such human and civil rights may be temporarily restricted, such as: the right to liberty and security of person, the right to housing, the right to privacy, the right to privacy and family life, freedom of movement, freedom of thought, freedom of liberty. expression of their views and beliefs, the right to participate in referendums, the right to vote and to be elected, the right to peaceful assembly, the right to property, the right to work and freedom of entrepreneurial activity, the right to education, the right to personal data protection.

However, in order for such restrictions to be lawful, consistent with the rule of law and recognized as admissible, they must meet certain criteria: they must be provided for by law; should not affect the basic content of the law; must be dimensional to the goal (principle of proportionality); be carried out for legitimate purposes, the list of which is exhaustive and not subject to expansion, to be necessary in a democratic society. In a state of war or emergency, human rights may be restricted in the interests of public order, public health and morals, or the protection of the rights and freedoms of others. In some cases, the exercise of a right may be restricted not only to ensure public order, but also for the safety of the person whose rights are being restricted (paternalistic approach to restriction of liberty).

Restrictions on rights are not the only legal instrument used to establish law and order during special legal regimes. In addition, exceptions to human rights may be used, which exclude from the sphere of human rights certain actions taken during the operation of special legal regimes and derogations from rights the suspension of certain human rights and freedoms for a certain period.

Today, the European Court of Human Rights makes a great contribution to the protection and guarantee of human rights in the face of their restriction, checking each time for compliance with the values of law specific restrictions in European countries in martial law and state of emergency, while forming a separate doctrine of restrictions on human rights in special legal regimes.

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