Constitutional law of the Russian Federation. The concept of the legal status of an individual. The system of human and civil rights and freedoms in the Russian Federation (lecture notes)

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Constitutional law of the Russian Federation. The concept of the legal status of an individual. The system of human and civil rights and freedoms in the Russian Federation (lecture notes)

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Topic 7. The concept of the legal status of an individual. System of rights and freedoms of man and citizen in the Russian Federation

7.1. General characteristics of the constitutional and legal status of the individual

Article 2 of the Constitution of the Russian Federation reveals the most important side of the characterization of Russia as a legal state: the highest value is proclaimed by a person, his rights and freedoms. All other social values (including the duties of a person) have not received such a constitutional assessment, therefore, they are located in relation to it at a lower level and cannot contradict it. This provision is a fundamental novelty of Russian constitutionalism: previously, state interests (identified with public ones) always had priority.

The recognition of human rights and freedoms as the highest value means that in the event of a conflict between human rights and other constitutionally protected values, including those related to other foundations of the constitutional order, priority should be given to human rights. Chapter 2 of the Constitution of the Russian Federation, containing an open list of human and civil rights and freedoms, as well as Ch. 1 and 9, is, as noted, "protected", "more rigid" and cannot be changed by the Federal Assembly of the Russian Federation.

It is important that the fundamental rights and freedoms of man and citizen are considered as natural, belonging to everyone from birth (part 2 of article 17 of the Constitution of the Russian Federation), i.e. they exist objectively, and not at the will of the legislator, are not imposed, not granted by the state (the state should not establish them, but only recognize, observe and protect them as already existing ones), but pre-legislative and extra-legislative.

The natural nature of fundamental rights and freedoms also means that they cannot be not only acquired, but also transferred to anyone, that is, they are inalienable (and even renunciation of them is void). The state cannot have powers acquired at the expense of fundamental human rights and freedoms.

When characterizing the constitutional and legal status of an individual, it is important to keep in mind the following. If the legal status is a set of rights, duties, guarantees and responsibilities of the relevant subject of legal relations, then the constitutional legal status of an individual is a set of only basic (constitutional) rights, freedoms and duties of a person and a citizen; norms of constitutional law establish the foundations of the legal status of the individual.

The constitutional rights and freedoms of man and citizen have the following features:

▪ they are the starting point for establishing other rights, freedoms and legitimate interests in sectoral (special) legislation;

▪ they are characterized by a high degree of generalization and distribution;

▪ their occurrence is based not on specific legal facts, but on the very existence (birth) of a person, his status as a citizen of the Russian Federation;

▪ they are provided with increased legal protection.

7.2. Classification of the rights and freedoms of man and citizen

The Constitution of the Russian Federation does not normatively divide the rights and freedoms of a person and a citizen into any groups, however, based on a theoretical analysis of a wide range of constitutional and international norms, the fundamental constitutional legal institution of rights and freedoms can be classified.

1. The most general division of rights and freedoms - their division into human rights and civil rights - is associated with the dualism of civil and political society. As a member of civil society, a person has equal rights with all others, but as a member of a politically organized society, he has equal rights only with those who, like him, belong to a given state; he has more rights and obligations in his own country than those who do not belong to this state.

2. The concepts of law and freedom are largely equivalent (often they are identified, and in some areas of law freedom is not mentioned at all). But there is also a difference between them. "Freedom" is a more general concept than "right", quite often "freedom" is understood as a group of rights (in particular, political ones).

3. Sometimes rights and freedoms are divided into individual and collective (solidarity). Most of the individual rights and freedoms of a person and citizen can be exercised collectively, while collective rights and freedoms cannot be exercised individually. Collective, in particular, include the right to association (Article 30 of the Constitution of the Russian Federation), freedom of assembly, rallies, demonstrations, processions (Article 31), the right to strike (Part 4 of Article 37), the rights of indigenous peoples and national minorities (Article 69 of the Constitution, Federal Law No. 30.04.99-FZ of April 82, XNUMX "On Guarantees of the Rights of Indigenous Minorities of the Russian Federation"), the right to petition, the right to civil disobedience, etc.

4. Rights and freedoms can be divided into basic and additional (through which the main ones are realized). Thus, the right of citizens of the Russian Federation to participate in the management of state affairs (part 1 of article 32 of the Constitution of the Russian Federation) is realized, among other things, through the right of citizens to elect and be elected to state authorities and local governments, to participate in the administration of justice, to enter the state service (parts 2, 4, 5 of article 32); the right to privacy (part 1, article 23) is specified in the right of everyone to privacy of correspondence, telephone conversations, postal, telegraphic and other communications (part 2, article 23); freedom of movement, choice of place of stay and residence (part 1 of article 27) is supported by the right of everyone to freely travel outside the Russian Federation and the right of citizens of the Russian Federation to freely return to the Russian Federation (part 2 of article 27).

5. Rights and freedoms can be divided into general (belonging to a fairly wide range of people) and special (private), belonging to a much smaller circle of people. For example, if the rights of pensioners are considered as general, then the rights of disabled pensioners, military pensioners are considered special; the rights of civil servants - as general, and the rights of assistants to deputies, employees of the prosecutor's office - as special. The rights belonging to the same group of persons may in some cases be considered as general, and in others as special. In particular, in the pair "the rights of citizens of the Russian Federation - the rights of employees" the rights of employees are special, and in the link "the rights of employees - the rights of working women" the same rights are common.

6. Allocate absolute rights and freedoms (that is, those that under no circumstances can be limited) and rights and freedoms subject to legislative restriction. The former include the right to life, dignity of the individual, the right to housing, to judicial protection, freedom of conscience, freedom of entrepreneurial activity, inviolability of private life, etc. (part 3 of article 56 of the Constitution of the Russian Federation). The second - freedom of the press, freedom of movement, property rights, privacy of correspondence, etc.

7. The most developed and traditional is the classification of the rights and freedoms of man and citizen according to the spheres of manifestation of these rights and freedoms. It is this classification that is normatively formalized in numerous international legal acts, such as the UN Charter of 1945, the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, the International Covenant on Economic, Social and Cultural Rights of 1966. , the Charter of the Council of Europe (Russia joined the Council of Europe in 1996), the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (ratified by the Russian Federation in 1998) and others. into three groups:

▪ personal (civil) rights and freedoms are those rights and freedoms that form the fundamental basis of the constitutional and legal status of the individual, provide constitutional protection of all spheres of a person’s private life (range of interests and needs, thoughts, judgments, records, diaries, social connections, intimate aspects of life, etc.) from excessive and unlawful interference of the state and other persons. Most of these rights and freedoms are natural and absolute in nature and are provided to all members of Russian society, regardless of the presence or absence of Russian citizenship;

▪ political rights and freedoms are rights and freedoms that ensure the participation of individuals (both individually and jointly with other persons) in the life of society and the state, including in the formation and exercise of public power. In contrast to personal rights, many political rights and freedoms belong only to citizens of the Russian Federation (but not all: for example, freedom of mass information, the right to association are guaranteed to every person, regardless of Russian citizenship);

▪ economic, social and cultural rights and freedoms are rights and freedoms that ensure the realization and protection of human vital needs in the economic, social and cultural spheres. The rights and freedoms of this group, like personal rights and freedoms, do not depend on citizenship and belong to every person. Many rights of this group are detailed in sectoral legislation: labor, pensions, family, housing, etc.

We list the basic rights and freedoms of a person and citizen of each group, indicating the constitutional provisions and some laws and other legal acts, through which concretization and detailing are carried out in the regulation of the relevant rights and freedoms (which is designed to facilitate independent work on understanding the content of specific rights and freedoms).

The Constitution of the Russian Federation refers to the personal rights and freedoms of a person and a citizen:

▪ right to life (Article 20 of the Constitution of the Russian Federation, Law of the Russian Federation dated December 22.12.1992, 4180 No. 1-59 “On transplantation of human organs and (or) tissues”, Article XNUMX of the Criminal Code of the Russian Federation, etc.);

▪ personal dignity (Article 21 of the Constitution of the Russian Federation, Criminal Procedure Code of the Russian Federation, Criminal Executive Code of the Russian Federation, Law of the Russian Federation dated July 02.07.1992, 3185 No. 1-XNUMX “On psychiatric care and guarantees of the rights of citizens during its provision,” etc.);

▪ the right to freedom and personal integrity (Article 2 of the Constitution of the Russian Federation, Article 37, Chapter 17 of the Criminal Code of the Russian Federation, Code of Criminal Procedure of the Russian Federation, Code of the Russian Federation on Administrative Offenses, Federal Laws of July 15.07.1995, 103 No. 13.12.1996-FZ “On the detention of suspects and accused of committing crimes", dated December 150, XNUMX No. XNUMX-FZ "On Weapons", etc.);

▪ the right to privacy, personal and family secrets, protection of one’s honor and good name (Articles 23, 24 of the Constitution of the Russian Federation, Family Code of the Russian Federation, Articles 137, 138 of the Criminal Code of the Russian Federation, Criminal Procedure Code of the Russian Federation, Federal Laws of August 12.08.1995, 144 No. 03.04.1995 -FZ "On operational intelligence activities", dated 40/18.04.1991/1026 No. 1-FZ "On the Federal Security Service", Law of the Russian Federation dated 150/152/1123 No. 16-11.02.1993 "On the police", Articles 4462-1, 25.07.1998 of the Civil Code of the Russian Federation ; Article 128 of the Fundamentals of the Legislation of the Russian Federation on notaries dated February XNUMX, XNUMX No. XNUMX-XNUMX, Federal Law dated July XNUMX, XNUMX No. XNUMX-FZ “On state fingerprint registration in the Russian Federation”, etc.);

▪ inviolability of the home (Article 25 of the Constitution of the Russian Federation, Article 139 of the Criminal Code of the Russian Federation, Article 8 of the Federal Law “On Operational Investigative Activities”, etc.);

▪ the right to determine and indicate nationality, use of one’s native language (the right to national and cultural self-identification) - Art. 26 of the Constitution of the Russian Federation, Law of the RSFSR dated October 25.10.1991, 1807 No. 1-30.04.1999 “On the languages of the peoples of the Russian Federation”, Federal Law dated April 82, 6 No. XNUMX-ZF “On guarantees of the rights of indigenous peoples of the Russian Federation”, Art. XNUMX of the Law of the Russian Federation "On Education", etc.;

▪ freedom of movement and choice of place of residence (Article 27 of the Constitution of the Russian Federation, Law of the Russian Federation of June 25.06.1993, 5242 No. 1-15.08.1996 “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”, Federal Law of August 114, XNUMX No. XNUMX-FZ “On the procedure for leaving the Russian Federation and entering the Russian Federation”, etc.);

▪ freedom of conscience and religion, the right of a citizen to replace military service with an alternative civil service (Article 28, Part 3 of Article 59 of the Constitution of the Russian Federation, Federal Law of September 26.09.1997, 125 No. 148-FZ “On Freedom of Conscience and Religious Associations”, Art. 25.07.2002 of the Criminal Code of the Russian Federation, Federal Law of July XNUMX, XNUMX “On Alternative Civil Service”;

▪ freedom of thought and speech (Article 29 of the Constitution of the Russian Federation, Law of the Russian Federation of December 27.12.1991, 2124 No. 1-XNUMX “On the Mass Media”, etc.);

▪ the right to judicial protection, qualified legal assistance, procedural guarantees (Articles 46-54 of the Constitution of the Russian Federation, Law of the Russian Federation dated April 27.04.1993, 4866 No. 1-31.05.2002 “On appealing to the court actions and decisions that violate the rights and freedoms of citizens”, Federal Law dated 63/XNUMX/XNUMX No. XNUMX-FZ “On advocacy and advocacy in the Russian Federation”, procedural legislation of the Russian Federation).

Political rights and freedoms include:

▪ the right to association (Article 30 of the Constitution of the Russian Federation, Chapter 4 of the Civil Code of the Russian Federation, Federal Laws of May 19.05.1995, 82 No. 11.07.2001-FZ “On Public Associations”, dated July 95, 12.01.1996 No. 10-FZ “On Political Parties”, dated XNUMX .XNUMX No. XNUMX-FZ “On trade unions, their rights and guarantees of activity”, etc.);

▪ freedom of meetings, rallies, processions and demonstrations (Article 31 of the Constitution of the Russian Federation, Federal Law dated June 19.06.2004, 54 No. 149-FZ “On meetings, rallies, demonstrations, processions and picketing”, Article 04.06.1997 of the Criminal Code of the Russian Federation, Moscow Law dated XNUMX/XNUMX/XNUMX “On meetings and conferences of citizens at their place of residence in the city of Moscow”, etc.);

▪ the right to participate in the management of state affairs (including voting rights, the right to participate in the administration of justice), access to public service (Article 32 of the Constitution of the Russian Federation, Federal Constitutional Law of June 28.06.2004, 5 No. 12.06.2002-FKZ “On the referendum of the Russian Federation”, Federal laws of June 67, 31.07.1995 No. 119-FZ “On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation”, laws of July XNUMX, XNUMX No. XNUMX-FZ “On the fundamentals of the civil service of the Russian Federation”, procedural legislation, etc.);

▪ right of appeal ("right of petition") - Art. 33 of the Constitution of the Russian Federation, Moscow Law of July 18.07.1996, XNUMX “On Citizens’ Appeals”, etc.;

▪ freedom of information and the media (parts 4, 5 of Article 29 of the Constitution of the Russian Federation, Law of the Russian Federation dated December 27.12.1991, 2124 No. 1-20.02.1995 “On the Mass Media”, Federal Law dated February 24, 21.07.1993 No. 5485-FZ “On Information, informatization and information protection", Law of the Russian Federation dated July 1, 27.05.2003 No. XNUMX-XNUMX "On State Secrets" Federal Law dated May XNUMX, XNUMX "On the civil service system of the Russian Federation").

The group of economic, social and cultural rights and freedoms are:

▪ freedom of entrepreneurship (Article 34 of the Constitution of the Russian Federation, Civil Code of the Russian Federation, Law of the RSFSR dated March 22.03.1991, 948 No. 1-169 “On competition and restriction of monopolistic activities in commodity markets”, Articles 171, 173, XNUMX of the Criminal Code of the Russian Federation, etc.);

▪ the right of private property (Articles 35, 36 of the Constitution of the Russian Federation, Civil Code of the Russian Federation, Land Code of the Russian Federation, Chapter 21 of the Criminal Code of the Russian Federation, etc.);

▪ labor rights - to work and its payment (freedom of labor), to rest, to strike (Article 37 of the Constitution of the Russian Federation, Labor Code of the Russian Federation, Law of the Russian Federation of April 19.04.1991, 1032 No. 1-23.11.1995 “On Employment of the Population in the Russian Federation”, Federal Law of November 175, XNUMX No. XNUMX-FZ “On the procedure for resolving collective labor disputes”, etc.);

▪ the right to protection of family, motherhood, paternity and childhood (Article 38 of the Constitution of the Russian Federation, Family Code of the Russian Federation, etc.);

▪ the right to social security (Article 39 of the Constitution of the Russian Federation, Labor Code of the Russian Federation, Federal laws dated December 17.12.2001, 173 No. 15.12.2001-FZ “On labor pensions in the Russian Federation”, dated December 163, 24.11.1995 No. 181-FZ “On compulsory pension insurance in the Russian Federation”) Federation", dated November 12.01.1995, 5 No. XNUMX-FZ "On social protection of disabled people in the Russian Federation", dated January XNUMX, XNUMX No. XNUMX-FZ "On veterans", etc.);

▪ the right to housing (Article 40 of the Constitution of the Russian Federation, Housing Code of the Russian Federation, Chapter 18 of the Civil Code of the Russian Federation, Law of the Russian Federation dated July 04.07.1991, 1541 No. 1-XNUMX “On the privatization of housing stock in the Russian Federation”;

▪ the right to health care (Article 41 of the Constitution of the Russian Federation, Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens dated July 22.07.1993, 28.06.1991, Law of the Russian Federation dated June 1499, 1 No. 29.04.1999-80 “On medical insurance of citizens in the Russian Federation”, Federal Law dated April XNUMX, XNUMX No. XNUMX-FZ "On physical culture and sports in the Russian Federation");

▪ the right to a favorable environment (Article 42 of the Constitution of the Russian Federation, Federal Laws dated January 10.01.2002, 7 No. 21.11.1995-FZ “On Environmental Protection”, dated November 170, 23.02.1995 No. 26-FZ “On the Use of Atomic Energy”, dated February 23.11.1995, 174 No. XNUMX-FZ “On natural medicinal resources, health-improving areas and resorts”, dated November XNUMX, XNUMX No. XNUMX-FZ “On environmental assessment”, etc.);

▪ the right to education and academic freedom (Article 43 of the Constitution of the Russian Federation, Law of the Russian Federation of July 10.07.1992, 3266 No. 1-22.08.1996 “On Education” as amended and additionally, Federal Law of August 125, XNUMX No. XNUMX-FZ “On Higher and Postgraduate Education”) vocational education", etc.);

▪ freedom of creativity (Part 1 of Article 44 of the Constitution of the Russian Federation, Law of the Russian Federation dated July 09.07.1993, 5351 No. 1-23.09.1992 “On Copyright and Related Rights”, Patent Law of the Russian Federation dated September 3517, 1 No. XNUMX-XNUMX, etc.);

▪ the right to participate in cultural life (Part 2 of Article 44 of the Constitution of the Russian Federation, Fundamentals of Legislation of the Russian Federation on culture dated 09.10.1992 No. 3612-1, Federal Laws dated 25.06.2002 No. 73-FZ “On objects of cultural heritage (historical monuments and culture) of the peoples of the Russian Federation", dated May 26.05.1996, 54 No. XNUMX-FZ "On the museum fund and museums of the Russian Federation", etc.).

7.3. Constitutional obligations of man and citizen

An integral part of the legal status of a particular subject of legal relations, along with rights, are the obligations of this subject, as well as guarantees of his rights and responsibility.

The Constitution of the Russian Federation of 1993, unlike previous Russian constitutions and the fundamental laws of some foreign states, does not contain a special chapter on the duties of a person and a citizen. At the same time, such obligations in the constitutional text are contained mainly in ch. 2 "Rights and freedoms of man and citizen", which emphasizes the inseparable unity of the two components of the constitutional and legal status of the individual in Russia - constitutional (fundamental) rights and freedoms and constitutional duties.

The Constitution of the Russian Federation speaks, in particular, of the following duties of a person and a citizen, specified and detailed in sectoral legislation:

1) comply with the Constitution of the Russian Federation and laws (part 2 of article 15);

2) respect the rights and freedoms of other persons (Part 3, Article 17);

3) the obligation of parents to take care of children, their upbringing and the obligation of adult able-bodied children to take care of their disabled parents (parts 2, 3 of article 38 of the Constitution of the Russian Federation, the Family Code of the Russian Federation);

4) the obligation of everyone to receive a basic general education and the obligation of parents or persons replacing them (adoptive parents, guardians, trustees) to ensure that children receive education of this level (part 4 of article 43 of the Constitution of the Russian Federation, the Law of the Russian Federation "On Education");

5) to take care of the preservation of historical and cultural heritage, to protect historical and cultural monuments (part 3 of article 44 of the Constitution of the Russian Federation, Fundamentals of the legislation of the Russian Federation on culture, the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation", etc. .);

6) pay legally established taxes and fees (Article 57 of the Constitution of the Russian Federation, the Tax Code of the Russian Federation);

7) preserve nature and the environment, treat natural resources with care (Article 58 of the Constitution of the Russian Federation, the Water Code of the Russian Federation, the Forest Code of the Russian Federation, Federal Laws No. 10.01.2002-FZ of January 7, 14.03.1995 "On Environmental Protection", No. 33-FZ "On Specially Protected Natural Territories", No. 24.04.1995-FZ of April 55, 21.02.1992 "On the Wildlife", Law of the Russian Federation of February 2395, 1 No. XNUMX-XNUMX "On Subsoil", etc.).

8) the obligation of citizens of the Russian Federation to defend the Fatherland (Part 1, Article 59 of the Constitution of the Russian Federation, Federal Laws No. 31.05.1996-FZ of May 61, 28.03.1998 "On Defense", No. 53-FZ of March 25.07.2002, XNUMX "On Military Duty and Military Service", Federal Law of July XNUMX, XNUMX "On Alternative Civil Service".

Describing duties as a component of the constitutional and legal status of the individual, it should be borne in mind that:

▪ firstly, duties, unlike most rights and freedoms, are positive in nature, i.e. they are established normatively (by laws), while human rights in relation to the state are predominantly natural, extra-legislative in nature. Thus, a person does not have any “natural,” pre-legislative or extra-legislative responsibilities in relation to the state;

▪ secondly, the Constitution of the Russian Federation is based on the principle of unity of not only the rights and freedoms, but also the duties of citizens of the Russian Federation (Part 2 of Article 6), therefore, not a single citizen of Russia can and should not arbitrarily evade or be exempted from fulfilling that or another constitutional obligation, which, in contrast to law, which is a measure of the possible behavior of an authorized person, is a measure of the proper, necessary behavior of an obligated person. Exemption from a particular obligation, as well as its establishment, can only take place on the basis of law;

▪ thirdly, like some rights and freedoms, certain responsibilities may not be assigned to any person living in Russia (for example, the obligation to pay taxes and fees, preserve nature and the environment, etc.), but only to citizens of the Russian Federation (in particular, the duty to defend the Fatherland).

Author: Nekrasov S.I.

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