The Mechanism of Human Rights Restriction through the Lens of European Standards

Abstract

The article aims to adapt a model of the human rights restriction mechanism – encompassing its subjects, object, principles, means, and consequences – to the European standards developed in the case law of the European Court of Human Rights (hereinafter – the ECtHR). The study is based on general theoretical and comparative legal analysis, a systemic approach to examining the restriction mechanism, and on the interpretation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the light of the ECtHR's case law.

The primary subject of human rights restriction is the State. The object of restriction comprises the qualitative and/or quantitative parameters of behavioural possibilities that constitute the content and/or scope of a right, or the manner of its exercise. The core principles of human rights restriction are found to correspond to European standards, namely: lawfulness, necessity, legitimate aim, proportionality, non-discrimination, reasonableness, procedural compliance, and others. The means of restriction (restrictors) established by European standards include: absolute prohibitions, exceptions to general rules, conditions for restriction, reservations to international treaties, and derogations from obligations.

It is concluded that, although the ECtHR assesses whether a State's restriction of Convention rights has complied with European standards, for the individual the consequence of restriction is a state of restrictedness – a condition into which the person is placed. This state of restrictedness may manifest as a narrowing of the scope or content of a right, or as a suspension of its exercise. The state of restrictedness acquires legal significance in the process of supervising compliance with ECtHR judgments. The abolition of a human right cannot under any circumstances be lawful.