Topic 9. Guarantees of human and civil rights and freedoms

Guarantee (from French garantie) - a guarantee, commission, provision, condition that ensures something. Guarantees of the rights and freedoms of man and citizen are, on the one hand, a component of the legal status of the individual, on the other hand, of the more capacious concept of "constitutional guarantees", which should be understood as a set of legal norms and institutions that ensure the protection of constitutional principles, human rights, and the foundations of the constitutional order , the fulfillment of constitutional duties and the functioning of various public authorities. Thus, guarantees of the rights and freedoms of man and citizen are a set of constitutional and legal norms, institutions, means, methods, mechanisms and procedures that ensure the implementation, protection and protection of constitutional rights and freedoms of man and citizen.

The system of guarantees of rights and freedoms is quite extensive and includes the following components:

▪ socio-economic (material) guarantees - stability of the economy, property relations, efficiency of the tax system and tax collection, etc. (and hence - high-quality implementation of various social programs, effective implementation of personal, political, socio-economic and cultural rights and freedoms);

▪ political guarantees - the democratic nature of power and the corresponding state regime, ensuring political stability, a high level of political culture of the authorities, individuals, and various institutions of civil society;

▪ legal guarantees - the actual legal means and methods for the implementation and protection of rights and freedoms.

Legal guarantees, in turn, are divided into two groups: formal legal and institutional guarantees.

Formal legal guarantees consist in the normative consolidation (directly in the Constitution of the Russian Federation and in other laws) of the above and other provisions aimed at ensuring rights and freedoms. It is difficult to overestimate the importance of such constitutional provisions as the proclamation of rights and freedoms as the highest value as one of the foundations of the constitutional system, defining the observance of human rights and freedoms as the main duty of the state (Article 2 of the Constitution of the Russian Federation), securing fundamental rights and freedoms at the level of the Basic Law (Chapter 2) and recognition of universally recognized norms and principles of international law (including international human rights standards) as an integral part of the Russian legal system (part 4 of article 15), prohibition of the application of any unpublished regulatory legal acts affecting rights, freedoms and duties of a person and a citizen (part 3, article 15), establishing the equality of everyone before the law and the court (part 1, article 19), assigning to the President of the Russian Federation the function of guarantor of the Constitution of the Russian Federation, the rights and freedoms of man and citizen (part 2, article 80), a ban on the publication of laws that abolish or diminish the rights and freedoms of man and citizen (part 2 of article 55), granting everyone the right seek their rights and freedoms by all means not prohibited by law, including self-defense (Art. 2 tbsp. 45), etc.

Fundamentally important is the constitutional prohibition of arbitrary restriction of the rights and freedoms of man and citizen in Russia. Freedom is not unlimited. As a member of society, a person also has certain obligations to other people, society, the state, including a passive type duty - not to violate the rights and legitimate interests of others (part 3 of article 17 of the Constitution). Based on this, the Basic Law of the Russian state provides for the possibility of restricting the rights and freedoms of man and citizen in Russia. However, such a restriction cannot be arbitrary and unlimited, and in accordance with Part 3 of Art. 55 of the Constitution of the Russian Federation is conditioned by three conditions.

First, the rights and freedoms of man and citizen can only be limited by federal law. Thus, a literal interpretation of this constitutional provision excludes the possibility of restricting rights and freedoms by the laws of the constituent entities of the Russian Federation (which, unfortunately, is quite widespread in practice) and legal acts of a subordinate nature (presidential decrees, government decrees, departmental acts, acts of the heads of regions, local authorities). self-government, etc.).

Secondly, the restriction of the rights and freedoms of a person and a citizen is possible only for strictly defined purposes, ensuring the protection of important social values. The list of such goals (reasons) is extensive, which allows for a broad interpretation, but nevertheless exhaustive:

1) protection of the foundations of the constitutional order;

2) protection of morality;

3) protection of the health of other persons;

4) protection of the rights and legitimate interests of other persons;

5) ensuring the defense and security of the state.

Thirdly, even in the presence of these grounds, the restriction of rights and freedoms is possible only to the extent that it is necessary to achieve these goals.

In addition to the general conditions for restricting rights and freedoms, the Constitution of the Russian Federation also contains some special conditions. In particular, in accordance with Part 1 of Art. 56 in connection with the introduction of a state of emergency throughout Russia or in some of its localities, such restrictions may be established with the obligatory indication of the limits and duration of their validity.

Examples of legislative restrictions on the rights and freedoms of man and citizen for these purposes are contained, in particular, in the Federal Constitutional Laws of May 30.05.2001, 3 No. 30.01.2001-FKZ “On a State of Emergency” and of January 1, 05.03.1992 No. 2446-FKZ “On Martial Law”, in Laws of the Russian Federation dated 1/01.04.1993/4730 No. 1-12.08.1995 “On Security”, dated 144/27.05.1998/76 No. XNUMX-XNUMX “On the State Border of the Russian Federation”, in Federal Laws dated XNUMX/XNUMX/XNUMX No. XNUMX-FZ “On Operational Investigative Activities”, and dated May XNUMX, XNUMX No. XNUMX-FZ “On the status of military personnel”, etc. We are talking about general restrictions for an indefinite number of persons, but specific restrictions on individual rights and freedoms (freedom of movement, the right to occupy certain positions and engage in certain activities, free disposal their property, etc.) of individuals may take place on the basis of a court decision (as a sanction for an offense committed or a measure aimed at ensuring a fair and objective decision by the court) or a reasoned resolution of other competent government bodies (for example, an investigator’s resolution on application of a recognizance not to leave as a preventive measure).

Provided for in Part 3 of Art. 55 of the Constitution of the Russian Federation, the conditions for restricting the rights and freedoms of man and citizen must be observed not only in relation to the rights and freedoms enshrined directly in the Basic Law, but also in relation to other rights granted to certain categories of citizens in Russia (veterans, pensioners, students, military personnel, etc.). .) industry and current legislation.

In accordance with Part 2 of Art. 55 of the Constitution of the Russian Federation in the Russian Federation should not be issued laws that abolish or diminish the rights and freedoms of man and citizen. The literal interpretation of this norm (i.e., the prohibition to abolish and diminish not only the rights provided for in the Constitution, but also the rights constituting the so-called special legal status and enshrined in sectoral and special legislation) "binds" the legislator, not allowing under any circumstances issue laws that increase taxes and other payments, establish more severe penalties, cancel any benefits for certain categories of citizens, etc. The Constitutional Court of the Russian Federation, in particular, has repeatedly indicated in its acts that in a legal social state the abolition of rights is unacceptable, benefits and benefits established, among other things, in laws of a special nature (in Federal Law No. 12.01.1995-FZ of January 5, 19.02.1993 "On Veterans", in the laws of the Russian Federation of February 4530, 1 No. 09.06.1993-5142 "On Forced Migrants", dated 1. XNUMX No. XNUMX-XNUMX "On the donation of blood and its components", etc.).

The Constitution of the Russian Federation provides for the so-called absolute rights and freedoms (part 3 of article 56), which cannot be normatively limited under any circumstances, even if a state of emergency has been introduced, there has been a large-scale natural disaster, a man-made disaster, etc. , in particular, include the right to life, dignity of the person, inviolability of private life, freedom of conscience, freedom of entrepreneurial activity, the right to housing, the right to judicial protection with appropriate procedural guarantees.

Despite the importance of formal legal guarantees, the leading role in the protection of rights and freedoms belongs to institutional guarantees. It is possible to standardize generally accepted democratic approaches to the main characteristics of the constitutional and legal status of an individual, but if a person in a particular state does not have a real opportunity to restore and protect his violated rights, then the value of formal legal guarantees will be nullified and they will be perceived as fictitious norms.

The system of institutional guarantees includes, firstly, various state and public bodies and organizations to which a citizen can apply for the protection of his rights; secondly, ways of exercising rights and freedoms and procedural guarantees, i.e. procedures that ensure the implementation, protection and protection of rights and freedoms (parliamentary procedures, administrative complaint procedures, amnesty and pardon, judicial procedures, etc.).

There are the following ways of exercising rights and freedoms and fulfilling obligations:

▪ personal, in which the exercise of rights and freedoms does not require not only obtaining permission, but also notifying any authorities. In this order, in particular, freedom of thought and speech, freedom of conscience, property rights, freedom of creative activity, the right to national and cultural self-identification, to participate in cultural life, etc. are exercised;

▪ declarative (notification). This is how the right to strike, to carry out entrepreneurial activities, freedom to choose a place of residence, freedom of rallies, processions, etc. are realized; the duty of the state to notify citizens about the payment of taxes and other payments, to summon them to court and to law enforcement agencies, etc.;

▪ permissive, associated with the need to obtain permission from the competent government bodies to exercise certain rights and freedoms (for example, to carry out certain types of business activities, visit certain areas and objects, etc.).

The links in the system of state and non-state bodies and organizations designed to ensure the protection and protection of the rights and freedoms of man and citizen include:

▪ The President of the Russian Federation, whose Administration employees are constantly working with letters and appeals and receiving citizens on a variety of issues;

▪ prosecutorial authorities, whose functions include promptly responding to any violations of laws in the Russian Federation;

▪ various executive authorities (justice, internal affairs, security, healthcare, education, transport, etc.), called upon, among other things, to resolve numerous issues regarding applications, complaints, claims, complaints of citizens and their associations;

▪ Commissioner for Human Rights, whose status is enshrined in the Federal Constitutional Law of February 26.02.97, 1 No. XNUMX-FKZ “On the Commissioner for Human Rights in the Russian Federation” (the effectiveness of this body’s appeals to various authorities is still based mainly on its authority and is not supported by specific real powers); similar institutions at the regional level (not yet established in all constituent entities of the Russian Federation);

▪ human rights commissions in the constituent entities of the Russian Federation (currently such commissions have been created in the vast majority of regions);

Commissioner for Children's Rights in the Russian Federation and similar bodies established in some constituent entities of the Russian Federation (in particular, in Moscow);

▪ government bodies of the constituent entities of the Russian Federation and local self-government bodies, which are the level of public authority closest to the population;

▪ Bar, notary;

▪ various all-Russian, regional and local public bodies and organizations created to protect specific types of rights and legitimate interests of Russian citizens (for example, the Russian Copyright Society, the Confederation of Societies for the Protection of Consumer Rights, various kinds of associations and unions, etc.).

The main institutional guarantee of human and civil rights and freedoms in the Russian Federation is the guarantee of judicial protection. The right to judicial protection of violated rights refers to the personal inalienable rights of everyone and is supported by a number of procedural guarantees (Articles 46-54 of the Constitution of the Russian Federation). It includes the right to receive qualified legal assistance (including free of charge in cases specified by law), the presumption of innocence in criminal proceedings, the prohibition of re-conviction for the same crime, the right to review a court decision, a ban on the use of illegal evidence, guarantees against self-accusation, the prohibition of the retroactive effect of the law (but only the law that worsens the position of the subjects of legal relations), guarantees of the rights of victims, etc.

It is the judicial procedure for the protection of violated rights that is the general procedure, an alternative to the use of a special (administrative, claim, etc.) procedure for protection. At the same time, the right to choose an instance to apply for protection of a violated right belongs to the most authorized person, with the exception of a limited number of cases provided for by law, when the use of a pre-trial procedure is a mandatory prerequisite for going to court, in particular, when resolving transport disputes, disputes in the field of patent legal relations and others

In accordance with Part 2 of Art. 46 of the Constitution of the Russian Federation, Law of the Russian Federation of April 27.04.1993, 4866 No. 1-2007 "On Appeal to Court of Actions and Decisions Violating the Rights and Freedoms of Citizens", amended. and additionally, any decisions and actions (inaction) of state authorities and local governments, as well as decisions and actions of bodies of legal entities, public associations, military authorities and officials can be appealed to the court. At the same time, the Constitution of the Russian Federation and other laws use the general term "court", which covers various levels of courts of general jurisdiction, arbitration courts, in the future - administrative courts, arbitration courts, the Constitutional Court of the Russian Federation and constitutional (statutory) courts of the constituent entities of the Russian Federation (created so far far from in all Russian regions). The choice of a specific judicial authority for appeal is determined by a number of conditions, primarily the rules on jurisdiction and jurisdiction. However, in any case, a person (associations of citizens) has the right "to a proper court" ("the right to his own judge"), i.e. the right to have his case considered in that court and by that judge to whose jurisdiction it is attributed by law, including the possibility of considering his case by a jury in certain cases of accusation of a criminal offense (as of today, jury trials should be established in all subjects of the Russian Federation, with the exception of the Chechen Republic, in which the specified court should start functioning from XNUMX).

Russian citizens have a constitutional opportunity to apply for the protection of their rights to interstate bodies (part 3 of article 46 of the Constitution of the Russian Federation). It should be borne in mind that such an appeal is a rather complicated procedure, due to a number of circumstances, the main of which are, firstly, the existence of an appropriate international treaty of the Russian Federation and, secondly, the exhaustion of all possible domestic legal remedies.

Of the international bodies for the protection of human and civil rights and freedoms, the most famous and authoritative is the European Court of Human Rights (in Strasbourg), access to which Russian citizens received after Russia joined the Council of Europe in February 1996 and ratified the European Convention on the Protection of Human Rights rights and fundamental freedoms in March 1998. The decisions of the European Court of Justice are binding on states that have accepted its jurisdiction. Despite the complicated procedure for applying to the European Court of Human Rights, the number of complaints and appeals from Russia is already in the thousands (according to some estimates, up to 10% of all cases accepted by the Court for consideration). On May 7, 2002, following the consideration of the case "Burdov v. Russia", the first decision was made in favor of a Russian citizen: the Court decided to pay 3 thousand euros from the Russian state treasury to A. Burdov, a participant in the liquidation of the consequences of the accident at the Chernobyl nuclear power plant, as compensation for the delay in the prescribed Russian legislation of payments.

Author: Nekrasov S.I.

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