THE RIGHT TO LIBERTY AND PERSONAL INVIOLABILITY IN THE CONTEXT OF ENSURING NATIONAL SECURITY

Abstract

The constitutional right to freedom and personal inviolability in the context of ensuring national security is considered. It was concluded that, in general, the introduction of martial law involves the restriction of the constitutional rights and freedoms of a person and a citizen, and the rights and legal interests of legal entities. At the same time, in order to determine the legality of the restriction of human rights and freedoms, a legal basis is required – the introduction of martial law. The second legal basis for limiting a specific right is its direct enshrining in the Decree of the President of Ukraine «On the introduction of martial law in Ukraine» as something that can be limited. Regarding the right to freedom and personal inviolability, it follows from the provisions of the Decree of the President of Ukraine that it is not subject to restrictions under martial law. Further in the work, we focused on the study of the human right to freedom and personal inviolability in criminal proceedings under martial law in the context of ensuring national security. A list of articles of the Criminal Procedure Code of Ukraine, which provide for the specifics of the exercise of this right by citizens in conditions of martial law, was given. We support the point of view that the law enforcer faces a difficult issue – the issue of the balance between ensuring national security and limiting the rights and freedoms of a specific person. This test-balance can be presented as follows: in each specific case, the law enforcement officer (be it a judge, investigating judge, prosecutor, investigator or investigator) is required to weigh the extent to which the interference with the rights and freedoms of a person under martial law is necessary and the extent to which there will be national security interests in the event that such intervention is not carried out. Further, examples of the ECtHR’s practice regarding the interpretation of Art. 5 of Convention for the Protection of Human Rights and Fundamental Freedoms: Austin and Others v. the United Kingdom and Engel and others v. the Netherlands were analyzed. Only two decisions of the ECtHR were given in the work, while in the aspect of interpretation of Art. 5 Convention for the Protection of Human Rights and Fundamental Freedoms there are many more of them. It is believed that further scientific research in the form of a study of ECtHR decisions on ensuring the right to freedom and personal inviolability will provide an opportunity to improve national law enforcement practice.