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DOI: https://doi.org/10.34069/AI/2023.72.12.22
How to Cite:
Fokina, A.O., Yushchyk, O.O., Kunenko, I.S., Ryndiuk, V.I., & Machuska, I.B. (2023). Normative determination of guarantees of
political rights in the sphere of administrative justice. Amazonia Investiga, 12(72), 246-253.
https://doi.org/10.34069/AI/2023.72.12.22
Normative determination of guarantees of political rights in the sphere
of administrative justice
Нормативне визначення гарантій політичних прав у сфері адміністративної юстиції
Received: October 29, 2023 Accepted: December 29, 2023
Written by:
Anastasiia O. Fokina1
https://orcid.org/0000-0003-2569-8057
Oleksii O. Yushchyk2
https://orcid.org/0009-0003-3299-2489
Iryna S. Kunenko3
https://orcid.org/0000-0003-1919-9198
Vira I. Ryndiuk4
https://orcid.org/0000-0001-7803-7039
Iryna B. Machuska5
https://orcid.org/0000-0002-6441-8356
Abstract
This study analyzes the normative definition of
the guarantees of political rights of citizens. A
dialectical methodology of knowledge of law is
used, and law is interpreted as an attribute of
social management of society. A legal norm is
understood as a process of necessity, the
elements of which are the hypothesis, disposition
and sanction of the norm in their organic
connection. It is shown that the political rights
and freedoms of a person and a citizen are
established by the disposition of the legal norm,
and their guarantees are determined by the
sanction of the legal norm. The public legal
character of political rights conditions their
guarantee by legal acts of the court of
administrative justice, as a type of justice. The
study concludes that improving the normative
definition of the guarantees of political rights is
an urgent task for the management and legal
1
Postgraduate student at the Prince Volodymyr the Great Educational and Research Institute of Law, Private Joint-Stock Company
"Higher Educational Institution "Interregional Academy of Personnel Management"", Kyiv, Ukraine.
2
Candidate of Juridical Sciences (Ph.D of Law), Postdoctoral at the Koretsky Institute of State and Law of the National Academy
of Science of Ukraine, Kyiv, Ukraine.
3
Candidate of Juridical Sciences (Ph.D of Law), Associate Professor, Professor at the Department of General Legal Disciplines, Civil
Law and Legal Provision of Tourism, Law Faculty of the Kyiv University of Tourism, Economics and Law, Kyiv, Ukraine.
4
Doctor of Law, Professor, Professor at the Department of Theoretical Jurisprudence, Law Institute of the Kyiv National Economic
University named after Vadym Hetman, Kyiv, Ukraine.
5
Doctor of Law, Professor at the Department of Private Law, Law Institute of the Kyiv National Economic University named after
Vadym Hetman, Kyiv, Ukraine.
Fokina, A.O., Yushchyk, O.O., Kunenko, I.S., Ryndiuk, V.I., Machuska, I.B. / Volume 12 - Issue 72: 246-253 /
December, 2023
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regulation of political relations in modern
society.
Keywords: administrative justice, guarantees of
political human rights, legal act, legal
information, legal norm.
Introduction
Constitutional consolidation of citizens' political
rights and their constitutional guarantees require
the definition of these guarantees in legal norms
and ensuring their implementation by the courts,
as the main guarantors of human rights and
freedoms in a democratic legal state. Therefore,
the study of the theory and practice of normative
definition of guarantees of political rights is an
important problem of constitutional and legal
science. Political rights and freedoms are directly
related to socio-political activity and
participation of citizens in state administration,
the decision-making process regarding the
formation of power and influence on the life of
the country, such as the right to participate in
elections, referendums, the right to petition, etc.
Therefore, the state should not only recognize the
political rights of citizens, but also create
conditions for their free and unimpeded
realization. Creating conditions for protecting the
rights and freedoms of citizens in political life,
guaranteeing their political rights is an important
component of their legal status. Democratic
values make it possible to maintain a political
culture, ensure civil liberties and political
participation, exercise the right to the electoral
process, which is necessary for the successful
development of a democratic legal state (Stadnyk
et al., 2022).
In this sense, defining the specified guarantees in
legal norms and acts of current legislation is one
of the priorities. Since the most effective
guarantee of rights of citizens is their judicial
protection, then the adequate normative
definition of the protection of political rights in
courts of administrative jurisdiction acquires
significant importance in modern conditions.
Accordingly, the article examines the concept of
law and social management through their
common point - legal norm; legal acts as
management decisions in which legal norms are
formalized in the process of law-making activity
of powerful subjects. The normative definition of
guarantees of political rights is connected both
with the sanction of the legal norm and with
decisions of administrative justice bodies. The
purpose of this article is to study the problem of
normative determination of guarantees of
political rights of citizens from the
methodological standpoint of dialectical
understanding of legal norms and legal acts.
The article is structured in four sections. The first
section presents the theoretical framework of the
study, including the definition of the key
concepts. The second section presents the
methodology used in the research. The third
section presents the results and examines the
jurisprudence of the administrative justice courts
in relation to the guarantees of political rights.
The fourth section presents the conclusions of the
study. This article is of interest to researchers in
the branch of constitutional and administrative
law, as well as to students and professionals
interested in the protection of political rights.
Theoretical framework or literature review
The theoretical basis of the article is the concept
of legal norms and legal acts as components of
law in their dialectical understanding. This
research is based on the dialectical theory
(Yushchyk, 2016b) of law, which is based on the
dialectical methodology and belongs to the
theories of sociological legal understanding
(Yushchyk, 2013). In particular, in the context of
this theory, law is considered as a normative
method of social management, by which a
powerful subject sanction (determines and
supports) the rules of behavior that constitute the
necessary, from his viewpoint, social order
(Yushchyk, 2016a). This theory interprets law as
an attribute of social management in society, its
methodological basis is dialectics. The concept
of normative guarantees of human rights is
connected with the rule-making activity of the
state in the process of legal regulation of political
relations in society. Also, the informational and
analytical base of the research consists of
scientific publications related to the research
problem, constitutional and other legal acts.
Methodology
The methodological basis of this theoretical
study is the dialectical method, which assumes
the need to study such a concept as the guarantee
of political rights in its various connections and
development. Guarantees of citizens' political
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rights and freedoms are studied through their
connection with the legal norm and legal act,
with the law-making activity of state authorities
and decision-making by specialized courts as
administrative justice bodies. The formal-logical
method, based on the laws of formal logic, was
used to clarify such concepts as "legal norm",
"legal act", "guarantees of political rights",
"administrative justice", etc. The systemic-
structural method made it possible to consider the
normative definition of guarantees of political
rights in the context of social management of
political relations, in particular, their legal
regulation.
The study is based on the analysis of the
guarantee of political rights and freedoms of
Ukrainian citizens and their normative definition
in national legislation, as well as the practice of
solving public-law disputes by courts of
administrative justice in Ukraine. However, it
should be noted that the legal system of Ukraine
reflects generally recognized international
norms, provided, in particular, in the
International Covenant on Civil and Political
Rights and the European Convention on Human
Rights guarantees of political rights and
freedoms.
Results and discussion
The analysis of various definitions of the concept
of law indicates that it is most often defined as a
normative regulator of people's behavior. This
definition, although it does not give a concrete
idea about the specifics of law (since it can also
be attributed to morality, religion, etc.), it is
present in various definitions of law and does not
cause doubts among theorists. And since the
normative regulator of people's behavior is not
only the law, then legal normativity is a special
normativity in relation to normativity in general,
which appears alongside other types of the latter
(moral, religious, etc.). Therefore, normativity is
a sign of a phenomenon of a higher order than
law, morality, etc., which is common to them.
This phenomenon is management.
As an activity of meeting the needs of people,
management is carried out in a way known to its
subject and necessary, which in practice is
formed into a usual course of action, acquires the
meaning of a rule that is followed in similar
situations. Some of these rules are identified by
society as necessary rules, giving them the status
of norms, which all must be considered and the
relevant entities are obliged to be guided by. So,
the concepts of management and law as a
normative regulator of people's behavior have a
common element of normativity. Law appears as
an attribute of social management, as a specific
legal normativity of the latter, its special way,
different from morality, religion, etc. (Yushchyk,
2013).
The basis of the normativity of law is a legal
norm. It should be noted that in modern legal
science, the legal norm is studied by scientists in
completely different aspects. Folloni (2017)
builds a theory on the difference between texts
and legal norms out of the complexity theory. It
understands legal norms as emergent phenomena
and interpretations as self-organizing processes
in complex systems, which are formed of texts,
theories, interpreters, values, worldviews, cases
and other. Hashmi (2015) presents a
methodology to extract legal norms from
regulatory documents for their formalization
based on the well-known IF ... THEN structure.
Ferraro, Sakamoto, Okazaki, Mineshima &
Satoh (2020) also investigates the issue of
automatic methods of extracting and formalizing
legal norms from legal documents. Caballero
Elbersci (2023) analyses the metatheoretical
question, regarding legal theories, about where in
our reality are the norms, in general, and the legal
norms, in particular. The author defends
sociolinguistic pragmatism, i.e., that norms are
primarily found in the sociolinguistic practices of
a community. He defends a particular version of
sociolinguistic pragmatism, i.e., that norms are
found in the sociolinguistic, normative,
historical, and rational practice of a community.
At the same time, in the scientific literature, a
certain unity of views of theorists on the norm of
law has developed, despite the diversity of the
understanding of law itself. This unity is limited
by the idea of it as a universally binding rule of
conduct established by the state and ensured by
state coercion, and by stating the three-element
structure of the legal norm, which consists of a
hypothesis, a disposition, and a sanction. The
idea of a rule of law as the proper behavior
established by a state act, as an "objective right"
different from a "subjective right" acting as the
implementation of a norm in a legal relationship,
prevails.
This metaphysical idea of law and its norms is
critically perceived from the standpoint of the
dialectical theory of law. The most well-founded
approach to the concept of a legal norm is a
dialectical one, in which "proper" and "essential"
do not oppose each other (the first in the form of
a norm, "rules of conduct", and the second in the
form of "actual" behavior based on a norm), and
both "proper" and "essential" is legal norm,
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moments of legal norm in their contradictory
unity. In this case, the legal norm is a process of
necessity, in which hypothesis, disposition, and
sanction appear as moments of this process,
therefore, as necessary moments of the norm, and
not as random, externally fixed elements of the
"structure" of the latter. Consideration of the
norm of law as a process of necessity, firstly,
does not deny the traditional understanding of the
hypothesis of the norm as a condition; secondly,
it clearly implies the interpretation of the
disposition as a subject of a legal norm, which is
the relation of the subject's right with the
corresponding legal obligation (as a "proper" and
"essential" relationship together); thirdly, the
sanction of a legal norm is unambiguously
interpreted - as a specific activity, the content of
which is determined by the need to make the
subject of the norm (disposition) valid under the
conditions defined by the hypothesis of the norm
(Yushchyk, 2013). The sanction in this sense is
not limited to the application of measures of
responsibility for the violation of rights and
obligations, as is usually believed, but includes
all activities of the subjects of legal relations,
which ensure the unity of "proper" and
"essential" in the norm, that is, the proper
implementation of legal relations, - from
legislative measures and the creation of
regulatory conditions for such implementation to
the execution of court decisions.
At the same time, a legal norm (as a partial case
of a norm in general) exists only in the abstract,
concretized in the form of legal acts (Yushchyk,
2013). The latter, in fact, make up a set of
management decisions, which fill the content of
each separate legal norm (hypothesis, disposition
and sanction of the norm) at the general, special
and individual levels. The content of legal acts is
management information directly related to the
normative definition of legal facts, rights and
obligations of subjects of legal relations, as well
as acts of activity that ensure the proper
implementation of rights and obligations by
subjects of legal relations, which is defined as
legal information. Legal information is such
management social information that is embodied
in specific management decisions - legal norms;
the latter are a process of necessity and expressed
in legal acts. Therefore, legal information
determines the content of the legal norm, which
is formalized in legal acts. In particular, Miranda
& Miranda (2017) examine such sources of legal
information as legislation, jurisprudence and
doctrine, as well as highlighting the speed with
which they renew themselves, making the
information, still recent, outdated.
A legal norm arises from the rules of
communication between subjects (matter of law)
as a law of their behavior, and is sanctioned by a
powerful authority as a positive law. That is, a
legal norm is the unity of the self-management
activity of individuals and the sanctioning
activity of a powerful subject (the unity of the
objective and subjective in the norm). This
determines the dual nature of the law-making
process in which the content and form of the law
is determined. Acquiring the normative form of
hypothesis and disposition by the rule of
communication takes place through law-making
activity, that is, the sanctioning activity of the
authority subject and the lawful activity of the
subjects of communication. The hypothesis and
disposition of the norm are "permeated" by this
activity as a sanction, and these three moments
form the norm as a necessary reality. That is why
the method of implementing a legal norm is
activity, that is, voluntary acts of communication
subjects, and voluntary acts of a powerful
subject, that is, all together as legal acts (Triada,
2022).
Public authorities make their management
decisions in the form of legal acts. Traditionally,
in jurisprudence, a legal act is defined as an
official legally binding written document
containing the will (decision) of an authorized
subject within its competence, and aimed at
regulating social relations. The concept of a legal
act is a generic concept; among legal (juridical)
acts, depending on the specific features (on the
basis of normativity), normative legal acts, acts
of application of legal norms (law enforcement,
individual, non-normative) and acts of
interpretation of legal norms (interpretive) are
distinguished (Derhilova, 2016; Holovchenko,
2014). At the same time, the dialectical theory of
law justifies the falsity of the statement that legal
acts differ according to the criterion of their
normative nature. All legal acts have a single
normative nature, which, however, is expressed
in them in different ways: in some acts, the norm
is embodied as something common, as a
mandatory rule (normative, "normative-legal"
acts), and in others - as a separate, single, through
which this universal is revealed (normorealizing,
"individual-legal" acts) (Yushchyk, 2013).
Political rights and their guarantees are defined
by laws as normative legal acts of the highest
legal force. In particular, in accordance with
Clause 1, Part 1, Article 92 of the Constitution of
Ukraine, rights and freedoms of man and citizen,
guarantees of these rights and freedoms; the main
responsibilities of a citizen are determined
exclusively by the laws of Ukraine. According to
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Clause 22, Part 1, Article 92 of the Constitution
of Ukraine, the principles of civil liability are
determined exclusively by the laws of Ukraine;
actions that are crimes, administrative or
disciplinary offenses, and responsibility for them
(Constitution of Ukraine, 1996). Thus, the
disposition and sanction of legal norms, i.e. the
rights and obligations of the subjects of legal
relations, as well as legal responsibility, at the
general level should always be contained in
normative legal acts of the highest and highest
legal force, i.e. in the Constitution of Ukraine and
the laws of Ukraine.
Regarding the sanction of a legal norm, from the
point of view of the dialectical theory of law, the
usual definition of a sanction as "an element of
the structure of a legal norm that indicates what
adverse consequences (measures of state
influence) may occur in the event of non-
fulfillment (violation) of the rule of disposition
of a legal norm" contains a contradiction.
Defining the sanction of a legal norm as a dual
internally contradictory (positive and negative)
activity is extremely important for understanding
law in general and, especially, positive law,
"objective law", etc. (Triada, 2022). It should be
noted that the issue of positive and negative
sanctions is the subject of scientific discussion
today. In particular, Lewinsohn-Zamir, Zamir &
Katz (2022) write that the threat of sanctions is
often insufficient to ensure compliance with legal
norms. Recently, much attention has been given
to nudges as a means of influencing behaviour
without sanctions, but nudges are often
ineffective and controversial. Therefore,
guarantees of political rights, such as the activity
of subjects of public authority, which is aimed at
ensuring real opportunities for the realization of
political rights of citizens, should be determined
within the scope of the sanction of the legal
norm.
The current legislation of Ukraine does not
define such terms as "guarantees of human
rights" and "legal guarantees of rights", and in the
legal literature approaches to these concepts and
their classifications differ significantly. The most
successful definition of the concept of guarantees
of rights and freedoms, Teptyuk (2018) points
out, is the following: "Guarantees of the rights
and freedoms of a person and a citizen are acts or
acts stipulated by the law, which are determined
by the legal status of the individual, and which
the subjects of the guarantees are obliged to
perform or refrain from them in order to preserve
the existing rights and freedoms and ensure the
concrete possibility of their implementation by
the subjects of these rights and freedom". This
author considers it necessary to classify the
guarantees of human rights, first of all on the
basis of the subject of guaranteeing the rights and
freedoms of a person and a citizen; these subjects
are: 1) the state; 2) non-governmental
organizations and institutions (trade unions,
other associations, etc.); 3) international
organizations.
A special place in the system of guarantees, notes
Korniienko-Zienkova (2019), belongs to legal
guarantees, which ensure various stages of the
process of implementation, protection and
protection of the rights and freedoms of citizens.
Therefore, the system of guarantees of citizens'
rights is ultimately realized exclusively through
legal guarantees, norms of a law-making nature,
which directly ensure the real legal status of an
individual. The most important legal guarantee of
the constitutional rights and freedoms of a person
is the proper implementation of the duties
defined by law, corresponding to these rights, by
all individuals and legal entities without
exception, and especially public authorities,
officials and employees of these bodies,
compliance with the regime of legality in their
activities. At the same time, not the obligation
itself is a guarantee of the corresponding right,
but its proper fulfillment by the obliged subject,
which is ensured by a system of legal and other
guarantees. Guarantees ensure the right of a
person indirectly, through an obligation. Thus,
legal guarantees of rights are actions or acts
provided for by law, which are required to be
carried out by state authorities, local self-
government bodies, and their officials in order to
preserve the existing rights and freedoms of a
person and a citizen and ensure the real
possibility of their implementation by the
subjects of these rights and freedoms (Teptyuk,
2018).
In order to understand the legal guarantees of
political rights, it is necessary to define in the
current legislation the content and scope of
specifically political rights of citizens and the
mechanism of realization of these rights. Legal
guarantees of political rights should be
considered through the prism of the
constitutional consolidation of the latter, Articles
22 (inexhaustibility of rights, guarantee of rights,
impossibility of their cancellation) and 92
(determination of rights, freedoms, guarantees,
obligations exclusively by laws) of the
Constitution of Ukraine (Constitution of
Ukraine, 1996).
The most effective and efficient legal guarantee
of political rights and freedoms, in our opinion,
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is their judicial protection. "Judicial protection is
a law enforcement guarantee of the rights and
freedoms of a person and a citizen, which is the
main means of ensuring the real possibility of
exercising these rights and freedoms by subjects"
(Teptyuk, 2018). The peculiarity of such a legal
guarantee as the judicial protection of human
rights and freedoms, according to Slobodianiuk
(2019), is that the state, through the norms of the
law, requires from the judicial authorities such
legal actions and acts that ensure the proper
fulfillment of the legal obligation by the state (the
court ) to protect the right of a specific person in
the relevant legal relationship, and guarantee the
fulfillment of the duty of everyone who is
obliged to satisfy the right protected by the court.
Therefore, judicial protection of the violated
right or freedom of a person is the main state
guarantee of compliance and protection,
including the political rights and freedoms of
citizens, which include: the right to apply to
authorities with petitions, the right to participate
in the management of state affairs, the right to
elect and be elected, the right of equal access to
public service, the right to peaceful assembly, the
right to form political parties and public
organizations, etc. (Korniienko-Zienkova, 2019).
At the same time, the literature notes the need to
ensure the execution of court decisions - as a
guarantee of protecting the rights of citizens. On
the other hand, courts in Ukraine do not have
effective means of monitoring the execution of
their decisions. It is worth supporting the opinion
of some authors regarding the strengthening of
state guarantees for the protection of the rights
and freedoms of citizens in the execution of court
decisions (Lytvyn et al., 2022).
Given the public-law character of political rights
and freedoms, in our opinion, judicial protection
of these rights and freedoms should be carried
out by specialized courts, as bodies of
administrative justice. The concept of
"administrative justice" has not received a certain
common point of view in modern science. In
particular, Tykhomyrov & Husariev (2009)
identify three main approaches to understanding
administrative justice: procedural, according to
which administrative justice is defined as a
special procedure for resolving disputes or as a
type of court proceedings; institutional, in which
administrative justice is characterized as a
system of specialized courts; functional, where
the emphasis is on the implementation by the
state of the function of protecting the rights and
freedoms of citizens. Instead, Kolomoiets (2008)
came to the conclusion that two main approaches
to the understanding of this concept have been
formed: 1) a narrow approach, according to
which administrative justice is considered as
judicial protection (administrative justice);
2) a broad approach, which includes the
resolution of administrative-legal disputes by
judicial bodies (administrative proceedings), as
well as by other authorized state bodies (appeals
of management acts in an administrative
procedure). In our opinion, a "broad" approach is
more productive in the scientific sense, according
to which the concept of justice is not limited to
the judicial authorities of the state, but also
includes bodies (prosecutor's office, bodies and
institutions for the execution of criminal
punishments, etc.), the activities of which in one
way or another are aimed at preventing, detecting
and eliminating violations of the law to ensure
the proper implementation of human rights and
freedoms, the establishment of legality and
justice, as well as those bodies and institutes
related to their activities (advocate, notary, etc.).
To define the general concept of justice, and with
it, administrative justice, it is necessary to take
legal activity as a basis, considering it as a
separate type of social activity, the content of
which is the implementation by the state
apparatus of legislative, administrative and law
enforcement functions, that is, the legal
formalization of state management of society.
Implementation of state administration "is
associated with a legal form, which is a valid
form of activity of the state apparatus. The state
functions as a real public authority only in its
legal form; covered by a legal form, it forms a
certain unity, which, as a substance, carries
within itself the authoritative power of the state
(Yushchyk, 2004). "The administrative activity
of the state apparatus is implemented only in the
unity of the legislative, administrative and law
enforcement functions of the state apparatus,
which are necessary aspects of the legal form of
this activity...". Such "purposeful activity of the
state apparatus, the content of which is the
powerful resolution of conflicts between legal
and illegal interests, which acts as denial of
offenses and establishment of legal order, is a
law-enforcement function of the state"
(Yushchyk, 1997).
If you combine this definition of the law
enforcement function of the state and the concept
of justice, then their essential connection is
noticeable. The law enforcement function is
represented by the administration of justice by a
judge, execution of decisions by a court (state)
executor, supervising the investigation of
criminal cases by the prosecutor, investigation of
these cases by investigators, etc.; these activities
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relate to law enforcement activities as a part of
the whole; the set of these functions forms the
law enforcement function of the state (Yushchyk,
1997). So, justice refers to the activity of the state
related to the elimination of violations of law, as
opposed to the formation and implementation of
law. The limits of justice are determined by the
limits of the law enforcement function, the
content of which is the activity of all bodies and
officials of the state, to bring all acts of subjects
of legal relations into compliance with the law.
Justice is a special sphere (branch) of state
administration, in which, based on the principle
of legality, the law enforcement function of the
state is implemented in the activities of public
authorities and their specialized institutions.
Administrative justice, as a type of justice, deals
with the violation of rights and freedoms,
guarantees in the public-legal sphere, and its
subject is public-law disputes, one of the parties
of which is always a public-authority body of
state power. The main purpose of administrative
justice is to restore the violated right, and its task
is to protect the rights and freedoms of a person
and a citizen from violations by public authorities
by resolving conflicts between them (Kaplia,
2017). In our opinion, all violations related to the
political rights of subjects should be determined
as the subject of administrative justice.
Therefore, the normative definition of the
guarantees of political rights of citizens should be
aimed at a clear understanding of both the nature
of these rights and the concept of justice and,
especially, administrative justice. The latter is a
decisive link in the implementation of the
constitutional responsibility of the state to the
person for its activities, for the approval and
guarantee of the rights and freedoms of the
person and the citizen.
Conclusions
The following conclusions can be formulated as
a result of this research:
1) the concept of human and citizen rights and
freedoms, including political rights and
freedoms, as well as their guarantees,
depends on the chosen approach to the
understanding of law in general, and
therefore, the understanding of the concept
of legal norms and legal acts;
2) the most convincing, according to the
authors, is the definition of the specified
concepts in the context of the dialectical
theory of law, with the use of dialectical
methodology and systematic analysis of
legal reality;
3) the normativity of law is determined by the
fact that it is an attribute of social
management, which has a normative nature
and is implemented through legal norms,
which are embodied in legal acts of the
subjects of norm-making and
implementation of norms;
4) guarantees of political rights and freedoms
of citizens are determined by normative
legal acts of positive law (constitutional acts,
laws and by-laws), as well as by legal acts of
the application of the law, that is, court
decisions with the actual implementation of
these decisions;
5) the public nature of political rights and
freedoms determines the need to guarantee
them in acts of administrative justice, as one
of the types of justice in general. Therefore,
the normative definition of these guarantees
is an urgent task in the context of the main
constitutional duty of the state, namely,
affirming and ensuring human rights and
freedoms.
Bibliographic references
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