Citizens’ Rights And Freedoms During Public-Power Relations Transformation: Pandemic And Digitalization Challenges

Pavel P. Baranov ,
Alexey Y. Mamychev ,
Anna P. Rabets

Abstract

The article analyzes the philosophical, political, legal and socio-cultural aspects of the problem of restricting individual rights and freedoms in the context of digitalization processes, especially those trajectories of digital evolution of public-power relations that have developed during a long-term viral epidemic. The authors focus on the problem of proportionality and legality of the relevant power restrictions. The article analyzes the constitutional and legal grounds for restrictions, as well as the role of the Constitutional Court of the RF in the mechanism for protecting rights and freedoms from their abuse. Particular attention is paid to the legal position of the Constitutional Court of the RF on the recognition of regional "coronavirus" restrictions of rights and freedoms in accordance with the Constitution of the Russian Federation. Separately, the paper discusses the problems of restricting human and civil rights and freedoms in the context of the digital evolution of society, examines the impact of the pandemic of the new coronavirus infection on the activation of extra-legal activities of state authorities and officials, as well as issues related to the use of digital technologies in this power-management activity. The article argues that the digital forms and tools used in the framework of restrictive regimes were mainly implemented precisely within the framework of an extra-legal form of power-management activity. The latter, according to the authors, is caused not only by the very specifics of the extreme situation, but also by the weak elaboration of the current legislation.

Keywords: Digitalization, extra-legal activity, legality, pandemic, restriction of rights and freedoms

Introduction

The institution of restriction of rights and freedoms traditionally acts as one of the most discussed in modern legal science. Current trends and directions in the development of the Russian legal system, especially in the last decade, have contributed to the emergence of rich factual material worthy of discussion. Discussions about the expediency of certain restrictions, to a greater extent affecting the sphere of political freedom, have become an integral part of the modern scientific space in Russia. A feature of the modern discussion about the advisability of introducing certain restrictions on subjective rights is its pronounced political and geopolitical coloring (Baranov et al., 2019a).

In addition to the geopolitical factor influencing the development of the institution of restriction of human rights and freedoms, the dominant reasons in recent years are: firstly, the emergence and rapid development of fundamentally new relations associated with the development, implementation and widespread operation of end-to-end digital technologies, where even traditional forms of social legal interactions are mediated by digital aggregators, autonomous algorithmic systems, etc.; secondly, it is a process associated with the global pandemic of covid-19, namely, the regimes of social and legal restrictions caused by the latter (Karabushenko et al., 2021).

Problem Statement

In this paper, both general philosophical, social, legal and political aspects of the problem of restricting individual rights and freedoms, as well as specific processes of restricting rights and freedoms caused by the processes of digitalization and long-term viral epidemics will be considered in a comprehensive form. Accordingly, the general and specific characteristics of the restriction of rights and freedoms will be highlighted, as well as the contradictions and prospects for the development of power and management activities during the digital transformation of society and the threats of long-term viral epidemics will be considered.

Research Questions

Description of the studied subject of the article. The foundations of the theory of restriction of subjective rights and freedoms were laid to a greater extent in the last decade of the last century. This does not mean that in Soviet legal science, the idea of restricting rights and freedoms was not given the necessary attention, at least at the level of theory. Recall that Article 39 of the Constitution of the USSR 1977 contained the cornerstone provision, traditional for modern legal science, that the use of rights and freedoms by citizens should not harm the interests of society and the state, the rights of other citizens (Konstitutsiya…, 1977). In more detail, unlike the current Constitution, the problem of restricting the rights and freedoms of citizens was not touched upon. However, it must be admitted that the corresponding general theoretical scientific reflections of Soviet scientists have always been limited by the rigid framework of state ideology based on the infallibility of the idea of socialist construction and a significant exaggeration of the real possibilities of socialist democracy.

It is no coincidence that the 1977 Constitution of the USSR used such formulations as “genuine democracy for the working masses”, “genuine democracy society”, etc. The latter circumstance does not mean that the Soviet political system did not see further ways of its development and improvement. So, in Art. 9 of the Constitution of the USSR of 1977, the main directions for the development of the political system of Soviet society and socialist democracy were: “the increasing participation of citizens in managing the affairs of the state and society, improving the state apparatus, increasing the activity of public organizations, strengthening people's control ... expanding publicity, constantly taking into account public opinions” (Konstitutsiya…, 1977). However, in general, the real mechanism of control over the institution of restrictions on the rights of citizens was not developed by Soviet legal science.

At the same time, we note that the justification for the need to restrict certain rights and freedoms at various stages of the formation and development of the Soviet government and the Soviet state was certainly present in the works of Soviet scientists (the rights of the bourgeoisie, electoral rights, the right to strike, the withdrawal of their citizenship, etc.) (Farberov, 1951; Kukushkin & Chistyakov, 1987). It should also be noted that the very problem of limiting subjective rights and freedoms was actively used by Soviet scientists to criticize liberal bourgeois legal concepts that consider natural and inalienable rights and freedoms as a factor of limiting state power (Malitsky, 1926). The initial thesis of such statements is quite difficult to refute today – no matter how much the state proclaims the unconditional value (self-worth) and naturalness of individual rights, it will not be able to live a day without their restriction.

Having proclaimed, following the 1993 Constitution, rights and freedoms as the highest value, thus fixing the transition from the socialist ideology to the new liberal one, the young Russian science was forced to "rediscover" and formulate general theoretical and conceptual justifications for the restriction of rights and freedoms, which in the new Russian reality required a much clearer and reasoned argumentation. This has predetermined a huge amount of scientific research in the field of the mechanism of restriction of individual rights and freedoms as an element of the general mechanism for the realization and enforcement of rights and freedoms. At the same time, it should be borne in mind that, in general, the idea of the need for legislative restriction of natural and inalienable rights and freedoms, in one form or another, has already been formulated in the theory of legal thought. It remained for domestic authors to describe the problem in relation to national realities characterizing a specific historical stage in the development of constitutional and legal relations, especially since the "new" Russian constitution contained fairly clear legal guidelines for a system of possible restrictions on rights and freedoms.

Purpose of the Studу

The purpose of the work is to give a comprehensive socio-philosophical and political-legal interpretation of the problem of restriction of human rights and freedoms in its current state and social dynamics in the context of the development of the processes of transformation of the state and society, as well as general and specific characteristics of power and management activities during the digital transformation of society and the threats of long-term viral epidemics.

Research Methods

The research involves the use of diverse but interrelated methodological concepts of political science, jurisprudence and social philosophy. In order to build a methodological basis for the development of a system of priorities of legal policy in the field of ensuring the rights, freedoms and legitimate interests of man and citizen, methods of conducting political and legal expertise, both a socio-cultural or civilizational approach to power, politics, law, and achievements and developments of the theory of political institutions and formal dogmatic jurisprudence are extremely important.

The methodological basis of this study consists of various paradigms of state studies and political and legal thinking. For example, the methods of historical-conservative analysis of power and law, developed in the historical school, are necessary for the study of customary-legal interaction in the personality–society–state system. The psychological theory of Petrazhitsky (2018) will be required for the analysis and study of the specifics of political and legal consciousness, the desired image of social, political and legal orders, understanding of extra-legal forms of public-power interaction, etc. The sociological approach to power, politics and law will be applied to identify the current state of the political and legal life of society, the role of customs and traditions in the daily life of a person and social groups. The cultural and anthropological analysis of political and legal phenomena and processes proposed by a number of domestic jurists, primarily Gins (2012), will be necessary to identify the role of various traditions in legal education.

Findings

Overview of key positions, theoretical and methodological approaches to solving the problem

Tolstik's (1998) point of view seems to be quite original, according to which the search for reasons to justify the restriction of rights and freedoms is completely meaningless in abstract-theoretical terms, since the corresponding goals are not universal, and the right of one person often excludes the right of another person.

It should also be noted that attempts are being made in legal science to further legitimize the institution of narrowing the material content of a particular subjective right by separating the concepts of "restriction of rights and freedoms" and "immanent limits of rights and freedoms" (Ebzeev, 1998, 2020).

Nevertheless, in our opinion, in both cases we are talking about an appropriate exemption from the legal status. In the first case - at the stage of direct realization of the subjective right, in the second case - at the stage of filling a specific subjective right with the content preceding its implementation. However, in both cases we are talking about a narrowing of the material content of subjective law, and the fact that this happens at various stages of legal realization is not any fundamental.

One could agree with such an approach if the immanent limits of subjective law were a state with at least minimal signs of stability and constancy. However, this is not the case. By endlessly changing and modifying conditional "immanent limits", based on considerations of legal, political or geopolitical expediency, we, in fact, level the corresponding idea. At the same time, it does not matter to the final consumer of a subjective right at what stage he is deprived of certain legal opportunities - at the stage of determining the limits of the exercise of a subjective right or at the stage of subsequent withdrawals, in the sense of restrictions. In addition, it is quite difficult to fix the “moment of transition” of immanent limits into the corresponding restrictions.

In the end, the discussion of the problem of restricting specific subjective rights and freedoms in modern Russia was reduced to the problem of discussing the proportionality of the relevant restrictions to constitutionally significant goals, the problem of the hierarchy of constitutional values and the question of the relationship between private and public in constitutional and legal regulation. The activity of the Constitutional Court of the Russian Federation deserves special attention in this regard. Realizing one of its most important powers – to verify the constitutionality of federal constitutional laws, federal laws and other normative acts applied in a particular case (in the latest edition of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" the range of normative acts subject to verification has become much wider), the Constitutional Court of the Russian Federation acts as the main and most effective public authority standing guard over the fundamental rights and freedoms of citizens.

Often, in a broad general theoretical vein, the problem of restriction of rights and freedoms is considered in the context of the general theoretical problem of the abuse of rights. In particular, abuse of the right includes abuse of freedom of speech, abuse of the right to peaceful demonstrations, abuse of freedom of association, etc. A number of authors reduce the problem of abuse of the right in the public sphere to the abuse of the right (powers) by public authorities (Vanin & Miroshnik, 2020). Other authors, considering the problem of abuse of law in the criminal procedure sphere, use this legal structure in relation to all participants in the criminal process without exception (Donika, 2021). Recall that modern Russian legislation considers the institution of abuse of law only in relation to the sphere of private legal interests. However, relevant scientific research in the public law sphere also seems quite promising to us.

The problem of restriction of rights and freedoms in modern state-legal practice

In modern Russia, there is no special basic law regulating the criteria and procedure for limiting subjective rights and freedoms. The legal basis for the relevant restrictions is Part 3 of Article 55 of the Constitution of the Russian Federation, according to which human and civil rights and freedoms may be restricted by federal law only to the extent necessary to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state (Konstitutsiya…, 2020). It can be found in the literature that for the first time a similar provision appeared in a somewhat truncated form in the Constitution of the RSFSR in 1978, whereas this provision did not appear in the text of previous Soviet Constitutions (Shumilova & Murzova, 2009).

One can only partially agree with such a statement. An important circumstance should be taken into account. We are talking about one of the last editions of the Constitution of the RSFSR in 1978. The corresponding changes were dated April 1992 and were no longer made by the "Law of the RSFSR", but by the "Law of the Russian Federation", and the constitution itself was not called by that moment "Constitution (Basic Law) of the Russian Soviet Federative Socialist Republic", but "Constitution (Basic Law) of the Russian Federation - Russia", therefore it is not quite correct to put the corresponding text of the Basic Law in a number of other Soviet constitutions. This is a relatively independent document that has practically no connection with the original text of the Constitution of the RSFSR of 1978.

It is impossible to state with a full degree of certainty exactly what specific legal meaning the legislator sought to put into the relevant provisions. The last remark concerns the text of both constitutions that we have mentioned. However, it can be confidently stated that in the modern legal space of Russia, constitutional provisions concerning the possibility of restrictions on rights should be interpreted as follows:

- all rights and freedoms without exception can be limited;

- all rights and freedoms can be limited only by federal law or on the basis of federal law (it is assumed that the category “federal law” is understood in a broad sense);

- the list of goals for the sake of which rights and freedoms can be limited is as wide as possible, which allows us to speak of a clear priority in this matter of public interests over private ones.

Some researchers are considering the possibility of restricting certain rights in the context of the hierarchy of relevant rights. In particular, based on the analysis of Part 3 of Art. 56 of the Constitution of the Russian Federation, according to which “the rights and freedoms provided for in Articles 20, 21, 23 (part 1), 24, 28, 34 (part 1), 40 (part 1), 46 - 54 of the Constitution of the Russian Federation are not subject to restriction ”, the conclusion is made about the division of all rights into absolute, not subject to restrictions in any cases, and all the rest (Shustrov, 2015, pp. 17-24). In our opinion, one cannot agree with such conclusions, because the relevant constitutional provisions establish a certain hierarchy in the system of rights and freedoms exclusively in the context of the institution of a state of emergency. The basic constitutional setting in the sphere of restrictions on rights and freedoms is the provisions of Part 3 of Art. 55 of the Constitution of the Russian Federation. The practice of constitutional justice confirms the relevant conclusions. It is this understanding of Part 3 of Art. 55 and part 3 of Art. 56 of the Constitution of the Russian Federation follows, for example, from the Ruling of the Constitutional Court of the Russian Federation dated May 29, 2007 No. 428-О-О.

It should be noted that the “epoch of coronavirus” has actualized not only the problem of proportionality of restrictions on rights and freedoms to constitutionally significant goals, but also, it would seem, the long-forgotten and passed problem of the legitimacy and legality of such restrictions. We are talking about the fact that at the time of the introduction of coronavirus restrictions in the constituent entities of the Russian Federation, the relevant grounds for the latter did not yet exist in federal legislation.

Subsequently, they appeared, however, for a certain time, the regional authorities, in fact, violated the provisions of Art. 55 of the Constitution of the Russian Federation. However, even before the “significant” decision of the Constitutional Court was born, many researchers agreed that the recognition of the relevant restrictions as illegal and, in particular, contrary to the Constitution, would entail disastrous consequences for the law enforcement system, so a “positive” solution to this issue is unlikely (Konovalov, 2020). Such expectations were justified. In its Resolution No. 49-P dated December 25, 2020, the Constitutional Court of the Russian Federation, noting the extraordinary nature of the situation and the fact of operational (advanced) legal regulation, after a short period of time “legitimised by legal acts of the federal level”, recognized the relevant rule-making at the regional level as not contradicting the Constitution of the Russian Federation. In our opinion, such a situation might not have happened if the federal legislator had made appropriate changes in advance, because, despite the real extraordinary situation, he still had the necessary time at his disposal.

At the same time, referring to the experience of restricting human rights and freedoms during the global pandemic (covid-19), which was an extraordinary situation, a number of points should be noted. Firstly, the system of restrictions on rights and freedoms was largely associated with the extralegal activities of the state and law, for example, the “self-isolation regime” itself was not recorded in any regulatory legal act, but was actively used to aggravate such a situation. Secondly, the digital era of transformation of social relations has led to the fact that end-to-end digital technologies have become a key tool in restricting human rights and freedoms (Baranov et al., 2019b).

At the same time, extra-legal activity should not be interpreted in negative connotations. Within the framework of the functioning of any democratic state, such activity, according to M. Kohn's fair remark, can "prepare favorable conditions for the emergence of alternative approaches before such ideas are widely accepted" (as cited in Glinos, 2003, pp. 86-87). Very often, the extra-legal activity of the state is just a mobile "political and legal reaction" to extraordinary situations, allowing solving extremely important tasks in the shortest possible time, by socio-legal and economic practices that do not contradict the current legal order as a whole and do not go beyond the functioning of the rule of law regime. In this regard, extra-legal forms of public administration have a positive effect, since they are focused on solving the crisis situation, within the legal space, in order to ensure its stable and sustainable functioning.

Accordingly, this form of state activity eventually leads to the development of the system of state power, legal forms and modes of regulatory regulation of public relations, methods of state-legal influence on various social processes and events. Consequently, the latter is the activity of the state, not connected and not mediated by law (although in some cases it may not be regulated by law, but correspond to the current constitutional and legal system and the spirit of the institutional and legal order), which may have both formal and public, informal, shadow and non-legal character (Baranov at al., 2019b). Rightly, in our opinion, the well-known lawyer and statesman Vitchenko (1982) notes that:

the state-legal practice of the functioning of public-power institutions eloquently testifies that not all state decrees are formalized by law. If we recognize that the state functions only within the framework of law, then we will have to assume that the absence of a legal establishment in any sphere of public life will inevitably entail inaction of the state in cases where the state task cannot be solved due to the fact that it does not fit into a previously issued normative act. (our italics -). (p. 166)

In the same aspect, Imre Szabo also notes that he considered the extra-legal activities of state bodies and officials as an attribute element of state-power wills and management activities

a state body always has a sphere of "free" activity determined by the principle of expediency, which is sometimes fixed in the legal sphere. Of course, such "free" activity is not free in the sense that it is (our italics -). (Sabo, 1974, p. 147)

In this regard, the extra-legal form of state activity in extreme situations is just as important and significant as the legal one, since, just like the legal form of activity, it expresses the essence and purpose of this political institution. Of course, the latter is expressed in various types of formal and informal activities of state bodies and their officials, which is either not mediated by law (current legislation), or contradicts it (violates current legislation). In the practice of the functioning of modern states, it can be seen that extra-legal activities related to restrictions on human and civil rights and freedoms were oriented to resolve possible negative scenarios for the development of public relations and did not overwhelmingly go beyond the current constitutional and legal order. At the same time, we also note that the digital forms and tools used under restrictive regimes (for example, registration and digital tracking of the movement of citizens, especially those who have contact with the infected or electronic qr codes for access to certain public places, etc.) were mainly implemented precisely extralegal form of power management activity, but this is caused not only by the very specifics of the extreme situation, but also by the poor elaboration of the current legislation regulating the procedure and modes of using end-to-end digital technologies in the power-legal activities of the state and officials. It seems to us that the development of the future regime of law and order, especially in the aspect of restricting human rights and freedoms, is connected precisely with the development of legal technology and the fixation of legal forms and regimes, areas and limits of the use of digital technologies in public power activities (Baranov et al., 2019a).

Conclusion

Summary and conclusions. As a result, we note that the possibility of limiting basic, fundamental, natural and inalienable (there can be as many appropriate formulations as you like) human rights and freedoms is the basis on which the successful functioning of any modern state rests. Rights and freedoms cannot exist without their restriction. Absolute right, like absolute freedom, is a fiction. Only as a result of their restriction do rights and freedoms acquire real opportunities for practical implementation. It is no coincidence that the constitutional provisions that "a person, his rights and freedoms are the highest value" (Article 2 of the Constitution of the Russian Federation) are adjacent to the indication that "the exercise of human and civil rights and freedoms should not violate the rights and freedoms of others" (Article 17 of the Constitution of the Russian Federation). By its legal nature, the problem of restriction of rights and freedoms, on the one hand, characterizes the question of the ratio of private and public interests, on the other hand, it allows resolving conflicts of interest between individuals. The notorious mechanism for ensuring rights and freedoms necessarily includes grounds for their restriction. To date, an adequate and pragmatic understanding of the idea of legislative restriction of rights and freedoms has been formed in the scientific consciousness, at least at the general theoretical and conceptual levels. It should be noted that Soviet legal science also made a certain contribution to this issue, including by consistently criticizing the liberal idea of a rule-of-law state.

In our opinion, today the main problems in the relevant area lie in the plane of determining the proportionality of certain restrictions on constitutional rights to constitutionally significant goals. The so-called geopolitical factor leaves a special imprint on the analysis and approaches to solving these issues in modern Russia. It is impossible not to notice that over the past decade the material content of some subjective rights and freedoms has significantly decreased. Such trends, even taking into account the specifics of legal regulation in this area at a particular stage of historical development, cause quite legitimate concern among the majority of the scientific community. At the same time, the corresponding direction in the activity of the Constitutional Court of the Russian Federation as the main body of domestic control over the entire system of legal (legal by formal criteria) restrictions of rights and freedoms is being updated. It should also be noted that in the "era of the coronavirus" the problem of the legality (legality) of restrictions on human and civil rights and freedoms was actualized. In addition, it was proved above that the qualitative development of the rule of law and the improvement of the rule of law, especially in the aspect of restricting human rights and freedoms in the XXI century, is associated with the development of legal technology and the fixation of legal forms and regimes, spheres and limits of the use of digital technologies in public power activities.

Acknowledgments

The study was financially supported by the Russian Foundation for Basic Research and EISI within the framework of the research project No. 21-011-31175 “Digitalization of power communication and political relations in modern Russia: main trajectories, actors and models”.

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03 June 2022

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https://doi.org/10.15405/epsbs.2022.06.13

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Baranov, P. P., Mamychev, A. Y., & Rabets, A. P. (2022). Citizens’ Rights And Freedoms During Public-Power Relations Transformation: Pandemic And Digitalization Challenges. In N. G. Bogachenko (Ed.), AmurCon 2021: International Scientific Conference, vol 126. European Proceedings of Social and Behavioural Sciences (pp. 109-118). European Publisher. https://doi.org/10.15405/epsbs.2022.06.13

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