THE PROBLEM OF PROPORTIONALITY OF RESTRICTION ON HUMAN AND CIVIL RIGHTS AND FREEDOMS IN THE RUSSIAN FEDERATION

Abstract

The importance of the proportional, «correct», restriction of human and civil rights and freedoms has always been the subject of theoretical and practical study by constitutional law researchers and practicing lawyers, since not only causes debate in legal science, but also creates different legal approaches to the definition of proportionality, proportionality, lawful limitation of human and civil rights and freedoms. In this regard, the author considers it important and relevant to point out some of the most obvious problems faced by the jurisprudence in determining the proportionality of the limitation of human rights, as it is very important in determining whether which is a legitimate restriction of human rights and freedoms. The relevance is also explained by the large number of works by foreign and domestic constitutionalists on the stated problem, which indicates the breadth and complexity of the topic. In the author’s view, abuse of rights, although a special case of introduction into natural boundaries of law, is the subject of separate scientific research, so abuse of rights will be excluded from the scope of this article. The article considers the normative basis of limitation of rights, the concept of «proportionality of restriction of rights», the criteria of lawfulness of restriction of constitutional rights, as well as the most well-known concepts of restrictions of rights, in order to search for those reasons, which give rise to difficulties in determining the proportionality of the restriction of the fundamental rights of the individual. The author concludes that there are contradictions between the mechanism of operation of the law and the restriction of the fundamental rights and freedoms of the individual.