Rule of law under conditions promoting prevention of unwarranted infringement on human rights by authorities

Abstract

The article reveals the value potential of the rule of law under the conditions that promote the process of content acquisition and development of the prevention principle of unwarranted infringement on human rights by authorities. Its direction is defined with absolute precedence of human rights. They are converted into the benchmark, which affects the development of domestic legal framework and provides it with relevant legal remedies. It arranges the interaction with the government system, which is based on the exercise of wide arbitrary or discretionary power. The author focuses on the introduction peculiarities of the prevention principle of unwarranted infringement by authorities caused by the specifics of reason definition, stipulation of varied implementation of discretionary powers by these authorities as well as the limits, ways, and conditions (circumstances) of such implementation aimed at the balancing private and public interests. The attention is concentrated on the need for the provision of strong and clear structure «discretion – implementation – public and private interests» provided the need for the restriction of human rights and freedoms arises in democratic society. The research is aimed at the consideration of the important element of the rule of law. Its content comprises national law stipulation of legal remedies against unwarranted infringement on the rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms as well as taking steps towards the definition of the version of this principle requirement that is the most appropriate for the Ukrainian legal system. The provision of adequate authority to government institutions and officials takes a particular place in this hierarchy. On the one hand, it should be based on the historic hermeneutic ideas and values (axiological concepts) concerning the origin and practical application of the requirements on the prevention (avoiding) of unwarranted infringement on human rights by the authorities implemented within a particular society and state. On the other, it should involve specific legal (comparative legal and analytic) remedies.