Rights and freedoms of a person and a citizen and modern realities
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RIGHTS AND FREEDOMS OF A PERSON AND A CITIZEN AND MODERN REALITIES
For creation of the truly democratic and socially focused state in which there would be observed and guaranteed fundamental rights and freedoms of a person and a citizen, it is necessary to create in the mechanism of division of powers the presence of strong, independent judicial power. It is necessary for all the branches of power to act in the legal field, and all the branches of power should be less arrogant and more tolerant.
In our opinion, actually no state can exist without the citizens if to consider the state as the form of organization of a society, accordingly the state should exist for the citizens. Not a person is created for the state, but the state is created for a person. The paradox is that the recognition of the constitutional rights and freedoms of a person and a citizen as the supreme social value, has been stipulated in the Fundamental Law since 1993, but till now in full has not been realized by the state. It is easy to proclaim the certain rights and freedoms but the main thing is to materialize them, to put them into practice.
The Constitution considers a person, his life and health, honour and dignity, inviolability and safety, as the supreme social values. The Fundamental Law proclaims the new approach to understanding of mutual relations between the state and the person, and puts the person but not the state on the first place.
Why has not the major constitutional principle, considering the person, his rights and freedoms the most significant value, though proclaimed, been fully realized by the state?
On the one hand, the society, at last, has realized the necessity and unconditional value of natural and inalienable rights of the person given to him from birth, on the other hand it is not capable to provide their full guaranteed realization as there has not been created the appropriate social environment for the normal functioning of the institute of rights and freedoms of the citizens.
To understanding and recognition to this constitutional principle the Russian society has developed for long, but probably it is necessary to pass a considerable way. Though annually step by step the power determines the priorities.
Thus, in the annual Message of the President of the Russian Federation to the Federal Assembly of the Russian Federation there have been declared three directions of activity: first — measures on development of the state; second — strengthening of legality and development of political system, increase of efficiency of justice; and, at last, third — development of the person and the civil society.
President Putin V.V. has noted that at present «there develops the phenomenon dangerous for the development of our society: rights of the person, never considered the state priority in the history of our state, risk to remain declarative. The power will still mention them in official documents, and the citizens will suffer from their own legal vulnerability».
The postulate that there are no rights without duties and no duties without the rights is true. Rights and duties, freedom and responsibility — is the axiom of the normal life. And as far as these concepts will coincide for each of us, so they will be filled with the contents.
Further in the Message the optimism is expressed in the hope that the state is going to achieve «development for everybody, success for everybody, better life for everybody and on the basis of these principles — we should become a free society of free people. And only in the free society each legislative citizen shall have the right to demand for himself reliable legal guarantees and the state protection».
In this connection it is necessary to recollect, that the citizens apply to the courts for protection of their constitutional rights.
What can the constitutional justice make in this direction?
Lately more often and persistently they speak about necessities of modification of the existing norms, and of proposals about necessity of adoption of the special federal law about the fundamentals of the constitutional charter legal proceedings in the subjects of the Russian Federation which would become the legal basis for its development express and would promote the formation of the organs of the judicial control in all the subjects of the Russian Federation.
Not denying the opportunity of adoption of the special law, the Chief Adviser of Department of the President of the Russian Federation V.K. Bobrova considers, that its absence does not interfere with creation and activity of already created constitutional (charter) courts whose legal bases are stipulated in the current Constitution of the Russian Federation and preserving validity in the decisions of the Constitutional Court of the Russian Federation.
On the question of the competence V.K. Bobrova considers, that the subjects of the Federation have the right to expand the competence of the constitutional (charter) courts by means of specification of the objects of control. For the purpose of protection of the fundamentals of the constitutional system, rights and freedoms of the citizens and maintenance of supremacy of the Fundamental Law of the subject of the Russian Federation the constitutional (charter) courts have the right to consider other questions following from the exclusive competence of the subject of the Russian Federation and do not compete with the powers of the Constitutional Court of the Russian Federation.
According to the Constitutional Court of the Russian Federation annually the number of petitions grows and comprises 12−14 thousand a year. Even at the most active work the Constitutional Court of the Russian Federation cannot consider each case in reasonable terms.
And in order to make it possible for the citizens to enjoy protection of the infringed constitutional right in local organs, it is necessary, in our opinion, to support those who consider it necessary to make changes to the Federal constitutional law Part 1 Article 27 «About judicial system of the Russian Federation» in the following wording: the words «can be created» should be replaced with the words «are created».
Thus according to the Definition of the Constitutional Court of the Russian Federation from March 6, 2003 No. 103−0 Part 1 Article 27 of the Federal Constitutional Law «About judicial system of the Russian Federation» does not interfere with stipulation in the constitutions (charters) of the subjects of the Russian Federation of additional, in comparison with the established list, powers of the constitutional (charter) courts not interfering with the competence of the Constitutional Court of the Russian Federation, other federal courts and corresponding to the competence of the subject of the Russian Federation.
It allows to make changes to the laws on the constitutional (charter) courts, expanding the powers and giving the courts the right to realize verification of statutory legal acts of the subjects of the Russian Federation adopted on the questions of joint conducting of the Russian Federation and the subject of the Russian Federation. In this case really and everywhere there will be raised the opportunity of rendering by the constitutional (charter) courts of protection of legal guarantees of the citizens, and will simultaneously be reduced the number of petitions of the citizens to the Constitutional Court of the Russian Federation.
In the Resolution from April 11th, 2000 No. 6-П the Constitutional Court of the Russian Federation has established, that at observance of the requirements of Part 3 Article 128 and item «a» Part 1 Article 72 of the Constitution of the Russian Federation, and the Federal Constitutional Law «About judicial system», the constitutional (charter) courts of the subjects of the Russian Federation can be allocated with the powers on the verification of conformity to the federal law of the laws of the subjects of the Russian Federation.
At present the experience of the constitutional justice has revealed the necessity of expansion of the powers of the constitutional (charter) courts on consideration of complaints of the citizens (individual and collective) on the infringement of the constitutional rights and freedoms. Then the significant number of the petitions of the citizens could be considered in essence. At present it is necessary to refuse in admission of some categories of petitions owing to absence of the criterion of admissibility of the questions put to the Constitutional Court. At the same time it is necessary to remember, that in the organs of the constitutional justice not any violated right of a person and a citizen is subjected to protection, but only those stipulated in the Constitution of the Russian Federation and its subjects.
It is possible to give many examples. One of them is the case considered by the Constitutional Court of the Republic of Adygea, on the complaint of infringement of the constitutional rights of the citizens by the Resolution of the Council of People’s Deputies of the municipal formation unit «the City of Maikop» «About confirmation of tariffs for rendering of additional paid services by the municipal establishments of public health care». The Constitutional Court of the Republic of Adygea in the definition has established that the paid medical services to the population should appear in addition to the guaranteed volume of the free-of-charge aid. And the order, conditions, criteria, requirementsto rendering medical services is necessary to determine in the requirements of the corresponding statutory act which should be clear and accessible to the population. However, the Court could not admit to proceedings and consider it in essence as the Constitutional Court of the Republic of Adygea verifies constitutionality of the law, any other statutory act applied or subjected to application in the concrete case.
The other case on the collective complaint on the infringement of the constitutional rights and freedoms of the citizens of the Law of the Republic of Adygea «About payment for the land». Having examined the essence of the complaint and the documents applied the Constitutional Court of the Republic of Adygea has not revealed any infringement of the constitutional rights of the collective of the Society with the limited liability the Adygea enterprise «Vtormetal» by the above- mentioned Law of the Republic of Adygea and has not found out the documents confirming application of the disputed norms of the concrete case. The criterion of admissibility limits access of the citizens to court. At the same time Article 6 of the European Convention «About protection of human rights and fundamental freedoms» has recognized the right of access to court as the major element of the right to remedy and it shall not be prevented by excessive legal or practical obstacles.
Having joint the Council of Europe and having supported the European convention «About protection of human rights and fundamental freedoms», the Russian Federation has accepted obligations to follow the international legal standards in the sphere of protection of rights and freedoms of a person. The task of the Russian Federation and its subjects is acceptance of measures to performance of these obligations.
According to Article 1 of the General Declaration on human rights «all people are born free and equal in their dignity and rights». The specified requirements of the international legal acts correspond to the Fundamental Law of the Russian Federation and its subjects.
In the Russian Federation rights and freedoms of a person and a citizen are recognized and guaranteed in accordance with the conventional principles and norms of the international law (Part 1 Article 17 of the Constitution of the Russian Federation).
According to Articles 2 and 6 of the Constitution of the Russian Federation all people are born free, and in equal rights, and in accordance with Article 19 all the citizens are equal under the law and court.
The Constitution stipulates that rights and freedoms of a person and a citizen, their protection, guarantees shall determine the basic contents and the direction of activity of the democratic state. And the major figure in this democratic process shall be the person with his constitutional rights and freedoms. The state shall be responsible under the citizen, and the citizen — under the state.
The Constitutional Court of the Russian Federation has repeatedly specified in the decisions that the constitutional principle of the lawful state assigns the duty to the Russian Federation to recognize, observe and protect rights and freedoms of a person and a citizen as the supreme value, that assumes establishment of such order, which should guarantee to each person state protection of his rights and freedoms (Article 1, Part 1; Articles 2, 17 and 18; Article 45 Part 1 of the Constitution of the Russian Federation). Justice as the major element of the given law in the essence is a such if provides fair sanction of the case and effective restoration in rights.
Taking into account the experience of the constitutional justice of the subjects of the Russian Federation, obligatory and fundamental conditions of development of the lawful state can be considered, in the opinion of G. Arutyunyan, «the recognition and respect of the human dignity, observance of his rights and fundamental freedoms, warranting of supremacy of the law; formation of the necessary qualities and sense of justice of a person; division, equation of the powers, optimum decentralization of political, economic and administrative forces; electivity and control of the powers; presence of independent judicial power; presence of capable system of warranting of supremacy and stability of the Constitution. These preconditions are interconnected, and absence, ignoring or diverse distortion of any of them can testify to a not democratic political regime».
The Constitution of the Russian Federation has been adopted 12 years ago.
The problem of completeness of warranting of rights and freedoms of a person has got the global value in the modern world. And it is no surprising, that the global community aspires to develop uniform rules in the questions of social and legal security of the citizens. Thus, in the preamble of the International Pact «About economic, social and cultural rights» «the ideal of a free human persons, free of fear and need, can be realized in case there are created such conditions under which every one can enjoy his economic, social and cultural rights as well as civil and political rights».
Hence, the social state is called to improve, protect a material well-being of the citizens, to serve for the tasks of maintenance for a person of the worthy life and to approve in a society the principles of humanism and validity.
Thus, it is necessary to change cardinally our way thinking and even our mentality. It has historically developed, that under monarchy the first is the monarch, and the second are his citizens, and again, as a dozen of years ago the legal culture of the population is low. In our opinion, the change of the situation is possible if the constitutional justice whose primary goal is the confirmation of legality, strengthening of the law and order, up-bringing in the citizens of respect to the Constitution of the Russian Federation is applied fairly.
According to Chairman of the Constitutional Court of the Russian Federation V.D. Zorkin «It is necessary to protect that state which protects the citizens, and it is not the contractual, but the Constitutional Federation». We believe, that the given saying can serve as the guide to action both to the courts, and to the citizens for protection of their violated constitutional rights.
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