Social and economic rights and freedoms - the rights, freedoms and duties of a person and a citizen in the economic sphere. They provide satisfaction of the most important vital needs of a person. Social and economic rights and freedoms are not the same thing, but they are in close connection with each other, although social rights and freedoms are derived from economic ones, they relate to the maintenance and normative consolidation of the socio-economic conditions of an individual's life, determine a person's position in the sphere of work and life, employment, welfare, social protection in order to create conditions under which people can be free from fear and want.
Unlike other types of human rights, the features of socio-economic rights are:
prevalence on a certain - socio-economic - area of \u200b\u200bhuman life;
admissibility of recommendatory, “lax” formulations of basic provisions (for example, “decent life”, “fair and favorable working conditions”, “satisfactory existence”);
dependence of the realization of socio-economic rights on the state of the economy and resources.
An important feature of socio-economic rights, which directly follows from their main characteristics, is the limited possibilities for their judicial protection. The court cannot help a person to realize his right to a decent standard of living, to provide a job for an unemployed person or housing for those in need. It is not these fundamental provisions that are subject to protection, but specific norms arising from them, for example, on the right of an unemployed person to an appropriate benefit or on the absence of discrimination in the wage system, etc.
The European Convention on Human Rights of November 4, 1950 does not provide for guarantees of socio-economic rights, therefore the European Court of Human Rights does not accept complaints about violations of this type of rights, considering that the obligation to provide services of a socio-economic nature is imposed on the state only in those cases when it is absolutely necessary to ensure the ability to enjoy the rights protected by the Convention of the first generation.
It is impossible to fully protect socio-economic rights at this stage, although many of these rights are subjective and their observance can be required in court (for example, the right to medical care, to the appointment of a pension, etc.). However, this is not a reason to consider socio-economic rights secondary and underestimate their importance.
Based on this, it is possible to determine the specific features of socio-economic rights, which:
- are aimed at equalizing economic inequality, ensuring everyone a decent standard of living;
- are targeted for the state, programmatic, oriented towards social activity, that is, they contain a social program of the state's activity, which requires constant efforts from it to implement it;
- are in the nature of rights-claims, that is, they are characterized by the right of the individual to demand from the state positive activities (guarantees) to create conditions for the realization of the rights recognized for him;
- formulated as "evolutionary" rights, the attainability of which depends on the state of the economy and resources of a particular state.
Among the sources of legal regulation of socio-economic rights and freedoms, the basic role is played by international legal norms. Universal norms are contained in the general principles of the UN Charter (Articles 1, 13, 55, 56, 62 and 68), in the programmatic provisions of the Universal Declaration of Human Rights (Articles 22-27), in the norms of the International Covenant on Economic, Social and Cultural Rights , in the conventional standards of the International Labor Organization (ILO).
Another group of sources of regulation of socio-economic rights are the norms that are contained in regional agreements (such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter, etc.). The third significant group is related to guarantees of observance and protection of socio-economic rights, enshrined in the national legislation of states.
Among the most important economic rights, the right to work should be highlighted.
Labor rights and freedoms, in various combinations enshrined in most of the world's constitutions, are important for employees who make up the bulk of the working population. These rights apply to a significant number of immigrants in Russia, i.e. persons who do not have Russian citizenship. Labor rights and freedoms protect a person from the arbitrariness of employers, provide an opportunity to defend their dignity and interests.
Labor is free. Everyone has the right to freely dispose of their abilities for work, to choose their type of activity and profession. Similar norms are reflected in the Declaration of Rights and Freedoms of Man and Citizen, it says here:
Everyone has the right to work which he freely chooses or to which he freely agrees, as well as the right to dispose of his ability to work and to choose a profession and occupation.
Everyone has the right to working conditions that meet the requirements of safety and hygiene, to equal remuneration for equal work without any discrimination and not less than the minimum amount established by law.
Everyone has the right to protection from unemployment.
Forced labor is prohibited.
The Constitution of the Russian Federation establishes freedom of labor, revealing it as the right of everyone to freely dispose of their abilities for work, to choose their type of activity and profession. A person has the right both to work and not to work, there can be no question of bringing to administrative responsibility for the so-called "parasitism", vagrancy, etc., although previously such provisions existed. But now there is no constitutional obligation to work as in previous years. A person is free both in entering a permanent job and in leaving it, in the transition to another, more interesting or profitable for him. Freedom of labor is realized through individual labor activity, in engaging in entrepreneurial activity, etc.
Forced (involuntary) labor is allowed only by virtue of the fulfillment of the duties of military service, a court verdict or in conditions of emergency.
The practical realization of the right to work is embodied in the task of providing work for all comers, solving the problem of full employment of the population. Thus, the right to work presupposes the right to protection against unemployment provided by the state to any person.
Labor is one of the conditions for the emergence of the original right to property.
The right to private ownership of property, including land, guaranteed by Art. 35, 36 of the Constitution of the Russian Federation, is an important type of human rights and freedoms and is protected by the entire system of Russian legislation. Changes and additions in this area can only be introduced by law. A citizen has the right to own any property for industrial, cultural and other purposes, after extracting that which, in accordance with the law or international treaties of the Russian Federation, cannot belong to him for reasons of state and public security.
In the Russian Federation, freedom of economic activity is guaranteed as a manifestation of personal freedom of citizens in the field of entrepreneurship (Article 8 of the Constitution of the Russian Federation). It is carried out through the exercise of the rights: free use of one's abilities and property for entrepreneurial and other activities not prohibited by law; private property, freedom of contract, the right to a good name (business reputation), to compensation for harm, to the free movement of goods, services and financial resources, etc.
Social rights provide a person with dignified insurance, pensions and health care.
According to the Constitution, everyone is guaranteed social security by age, in case of illness, disability, loss of a breadwinner, for raising children and in other cases established by law. Each of these cases (social risks) is characterized by the loss of earnings or its inadequacy for the life support of a person and disabled members of his family. The law establishes the onset of the retirement age for men from 60 years, and for women from 55 years, linking the amount of the pension with the length of service (however, due to special working conditions and for a number of other reasons, pensions are assigned from an earlier age). The grounds for receiving disability pensions are regulated in detail, which means loss of ability to work for a long time or permanently, as well as in connection with the loss of a breadwinner (due to his death or unknown absence). As if in the development of the provisions of the Constitution on the protection of mothers and children, the grounds for social security are provided for the upbringing of children (benefits in connection with the birth of a child, caring for a small child, etc.), all these forms of social security are based on the consolidation of the subjective rights of citizens to receive pensions and benefits if justified. A person must know in advance what he can count on in the event of certain social risks, i.e. what are the grounds, conditions, level of security, procedure for obtaining, etc. Retirement is a right, not an obligation.
State pensions for certain categories of citizens are also established by the Laws on employment of the population of the Russian Federation, on social protection of citizens exposed to radiation as a result of the Chernobyl nuclear power plant disaster, on state guarantees and compensations for people working and living in the Far North and equivalent areas.
Article 7 of the Constitution of the Russian Federation provides that the Russian Federation is a social state, the policy of which is aimed at creating conditions that ensure a decent life and the free development of a person, and this includes the right to an adequate standard of living, mental and physical health. If we consider the right to an adequate standard of living, then its aspect is the right to housing.
Citizens of the Russian Federation have the right to housing. This right is ensured by providing residential premises in houses of state and municipal housing stock on the terms of a lease agreement within the limits of the living space, as well as on a lease basis or by purchasing or building housing at one's own expense without limiting the area.
Citizens who are not provided with housing in accordance with the established standards, the state provides assistance by developing the construction of houses of state and municipal housing funds intended for the provision of residential premises under a lease agreement, as well as using a system of compensation (subsidies) and benefits for paying for the construction, maintenance and repair of housing.
In addition, everyone has the right to health care and medical care in the Russian Federation. But the right to health care under the Constitution of the Russian Federation differs significantly from the Soviet period of the development of society, when any medical assistance was to be provided free of charge. Part 1 of Art. 41 of the Constitution of the Russian Federation it is established that this assistance is provided free of charge only in state and municipal health care institutions. The issues of protecting the health of citizens are currently regulated mainly by a special legislative act - the Fundamentals of the legislation of the Russian Federation on protecting the health of citizens of July 22, 1993 No.
Thus, the duty of the Russian state in the field of protecting socio-economic rights is to implement progressive economic and social reforms, to ensure the full participation of its people in the process and benefits of economic development, to use its resources to provide everyone with equal opportunities to enjoy these rights.
THESIS
on the course "General Law"
on the topic: "Social and economic human rights"
INTRODUCTION
CONCLUSION
LIST OF USED SOURCES
INTRODUCTION
In the last decade, the idea of \u200b\u200bhuman rights has become firmly established in the Russian public consciousness, which is naturally connected with the general processes of democratization of the country in these years. They talk and write a lot about human rights, they are constantly on everyone's lips, they are actively discussed at all levels - from the president to ordinary citizens. The topic of human rights as one of the most pressing and "fashionable" does not leave the pages of newspapers and magazines, television screens, is invariably present in the speeches of statesmen, political leaders, parliamentarians, in the reports of participants in various scientific conferences. In the Russian public consciousness, as in the whole world, the idea of \u200b\u200bhuman rights has become firmly established as the most important humanistic value and an integral element of democracy.
In any democratic system, the rights and freedoms of citizens are the most important social and political and legal institution, objectively serving as a measure of the achievements of a given society, its "calling card", an indicator of maturity and civilization. It serves as a means of an individual's access to spiritual and material benefits, mechanisms of power, realization of his interests, expression of will. At the same time, this is an indispensable condition for improving the individual himself, strengthening his status, dignity, independence, "sovereignty". In a modern developed society, it is important to observe not only personal and political human rights, but also social and economic rights - the rights to work, rest, education, housing, etc.
When preparing the work, the following goals were set:
to reveal the concept and essence of socio-economic rights, their place in the system of fundamental rights and freedoms of citizens;
to reveal the legal mechanism for the protection and implementation of socio-economic rights in the norms of sectoral legislation;
to consider the organizational and legal mechanism for the protection of socio-economic rights through state and legal institutions: the judiciary, the ombudsman;
analyze the practice of the Constitutional Court of the Russian Federation for the protection of the socio-economic rights of citizens.
In this regard, the task was set to study the Constitution of the Russian Federation; sectoral legislation developing socio-economic rights; regulations governing precedents for the protection of fundamental socio-economic rights and freedoms of citizens, judicial authorities, the Constitutional Court of the Russian Federation and the Ombudsman.
The work consists of two chapters. In the first chapter, the concept of human rights is introduced, the mechanisms of their protection are considered, and they are divided into personal, political and socio-economic. The protection of socio-economic human rights in the Basic Law - the Constitution of the Russian Federation is analyzed in detail.
The second chapter examines the protection of socio-economic human rights in sectoral legislation, as well as the types of protection of these rights - through the judicial system and the institution of the Commissioner for Human Rights.
The conclusion summarizes the results and draws conclusions on the topic of the work.
1. CONCEPT AND CHARACTERISTIC OF SOCIO-ECONOMIC RIGHTS
The institution of human and civil rights and freedoms is central in modern law, because it contains key guarantees to protect the people in general and each individual person and citizen from the arbitrariness of state power, which, in turn, is an essential condition for the normal functioning and development of the rule of law.
The use of the term "fundamental rights and freedoms" does not mean a denial or diminution of other universally recognized human and civil rights and freedoms. At the same time, constitutional (fundamental) rights and freedoms have the most important distinctive features that allow them to be distinguished into a special institution of constitutional law:
a) the basic (constitutional) rights and freedoms are listed in the Constitution - a normative legal act with the highest legal force on the territory of the Russian Federation. Moreover, the provisions of the corresponding chapter of the Constitution cannot be revised by the Federal Assembly;
b) fundamental rights and freedoms do not have restrictions on the range of subjects: they belong either to every person or to every citizen. Other rights and freedoms listed, in particular, in federal laws, often have a specific circle of subjects: military personnel, judges, deputies of representative bodies, etc .;
c) fundamental rights and freedoms are of a constituent nature, their system forms the basis of the legal status of an individual. Other rights and freedoms, for example, established by the legislation on labor, social security, are based on the corresponding fundamental rights or freedoms enshrined in the Constitution; at the same time, they serve as legal guarantees for the realization of fundamental rights and freedoms;
d) fundamental human rights and freedoms are inalienable and belong to everyone from birth. A certain range of rights and freedoms of a citizen is inextricably linked with the individual's possession of citizenship of the Russian Federation, the loss of citizenship automatically entails the loss of the person's fundamental rights and freedoms of a citizen;
e) the implementation of fundamental human and civil rights and freedoms is not associated with the participation of an individual in a specific legal relationship. They exist constantly, invariably present in every legal relationship. Other rights and freedoms are often due to the participation of a person in a particular legal relationship and even arise as a result of such participation;
f) fundamental rights and freedoms cover the most important relations associated with both the individual, private life of a person, and with the life of civil society in the political, social, economic and cultural spheres.
Thus, the constitutional (fundamental) rights and freedoms of a person and a citizen are enshrined in the Constitution, belonging to each person or citizen, inalienable rights and freedoms of a constituent nature, covering the most important relations associated with both the individual private life of a person and the life of civil society as a whole. ...
In a historical context, modern researchers distinguish three generations of rights: the first - political and personal rights, proclaimed in their time by the first bourgeois revolutions and enshrined in well-known declarations (American, English, French); second - socio-economic rights that arose under the influence of socialist ideas, movements and systems, including the USSR (the right to work, rest, education, social security, medical care, etc.); they supplemented the previous rights and were reflected in the relevant UN documents; third - collective rights, put forward mainly by developing countries in the course of national liberation movements (the right of peoples to peace, security, independence, self-determination, territorial integrity, sovereignty, deliverance from colonial oppression, freedom, dignified life, etc.). The allocation of three generations of rights is largely arbitrary, but it clearly shows the consistent evolution of the development of this institution, the historical connection of times, the general progress in this area. Once upon a time, human rights constituted the so-called third basket in the bargaining of the USSR with Western countries (along with nuclear weapons and political issues). But this era has passed, and the Helsinki Accords (1975) remained only a milestone on the common path of mankind to a more perfect order.
In the Russian literature, the concept of the hierarchy of rights according to the degree of their significance has been justly criticized. In particular, there are “zigzags of perception of the role of socio-economic rights”, attempts to declare them a “socialist invention” unknown to “civilized countries”. These rights are allegedly deprived of the qualities of "legal possibilities protected by the court." A softened version of this approach is the relegation to the background of socio-economic rights as rights of a different order in comparison with personal inalienable rights attributed to the "highest category". However, it seems that such an opposition of rights is hardly justified - all of them are important and necessary for the individual, each of their groups expresses its interests in its own way. Moreover, right now, Russian citizens have felt the importance of many socio-economic rights, which were previously guaranteed to a greater extent than now, when “non-socialist” relations are developing. The loss of these gains is especially acute in our day.
The differentiation of constitutional (fundamental) human rights and freedoms into personal, political and socio-economic is the most common basis for their classification. However, fundamental rights and freedoms can be classified according to other criteria:
a) by subject - on human rights and freedoms (they are characterized by the constitutional wording "everyone") and on the rights and freedoms of a citizen (exercised only by citizens of the Russian Federation);
b) according to the form of implementation - into individual and collective. Individual rights and freedoms are realized by an individual independently, without the participation of other persons (the right to life, to personal integrity, freedom of speech, etc.). A person cannot independently exercise collective rights and freedoms - concerted actions are needed to implement similar rights and freedoms by other individuals. For example, “everyone has the right to associate,” but at least three people must exercise this right, otherwise a public association will never be created;
c) according to the mechanism of implementation - to the rights, freedoms realized outside the legal relationship (for example, the right to life, to liberty, to personal inviolability), and the rights, freedoms, realized through the participation of a person in any legal relationship (for example, the right to choose the type of activity and profession, the right on a competitive basis to get a higher education free of charge in state or municipal educational institutions and enterprises, etc.);
d) at the time of occurrence - on the rights, freedoms arising from the moment of birth (in particular, the right to protect the dignity of the individual), and the rights, freedoms, the moment of emergence of which is specially stipulated in the current legislation (for example, the right to elect to state bodies power and local self-government arises from a citizen of Russia only upon reaching the age of 18).
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The personal rights and freedoms of citizens of the Russian Federation are listed in Articles 19-29 of the Constitution of the Russian Federation.
Personal rights and freedoms are very diverse, but they are characterized by some common features:
a) personal rights and freedoms belong to any individual, regardless of whether he has citizenship of the Russian Federation. These are human rights and freedoms. The only exception is provided for by Article 27 of the Constitution (part 2): if everyone has the right to freely travel outside the Russian Federation, then only its citizens are entitled to freely return to the Russian Federation;
b) personal rights and freedoms are natural, that is, they follow from the fact of the existence of a person as such. In particular, any person has the right to life solely by virtue of his birth, human nature, but not by virtue of the fact that the state endowed him with the right to life. The task of the state is to protect this right from encroachment;
c) personal rights and freedoms are "inalienable and belong to everyone from birth." In accordance with Article 55 (part 3), rights and freedoms, including personal ones, can be limited, but only by federal law and only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests other persons, ensuring the country's defense and state security. Restrictions on rights and freedoms can be used as a punishment for committed offenses.
Let's list the main types of rights and freedoms:
1. The right to life is the most important personal human right that predetermines all other rights.
2. The right to state protection of the dignity of the individual.
This right means a special duty of the state in relation to a person as the highest value. Nothing, that is, no other values, goals, interests, can serve as a basis for belittling human dignity. Everyone, regardless of their level of education, social status, intellectual potential and other individual characteristics, has the right to respectful attitude towards themselves from others. The state is the guarantor of this respectful attitude.
The most important guarantees ensuring the protection of human dignity are enshrined in the Constitution of the Russian Federation:
a) no one can be tortured;
b) no one can be subjected to medical, scientific or other experiments without voluntary consent;
c) everyone has the right to defend his honor and good name, including the right to demand material compensation for physical and mental suffering caused by the court.
3. The right to liberty and security of person.
The right to freedom means the ability to perform any lawful act. The Constitution of the Russian Federation (Article 22), like the most important international legal acts, enshrines not only the right to freedom, but also the right to personal inviolability - the most important guarantee against arbitrary, unlawful deprivation of freedom. “Arrest, detention and detention,” says the Constitution, “are only allowed by a court decision. A person cannot be detained for more than 48 hours pending a court decision ”. This provision is implemented in the new Code of Criminal Procedure.
4. The right to inviolability of private life, personal and family secrets, secrecy of correspondence, telephone conversations, postal, telegraph and other messages.
5. Inviolability of the home.
The Constitution of the Russian Federation subjects dwellings to special legal protection. It is, as it were, recognized as a component of a person's private life. Moreover, a dwelling means not only a dwelling in which a person resides permanently, but also his place of temporary residence (hotel room, dorm room, etc.).
6. The right to determine and indicate one's nationality, to use the native language, to choose the language of communication, education, training and creativity.
The consolidation of this right in the Constitution follows from the principle of equality of human rights and freedoms regardless of nationality. Thus, a person's belonging to a particular ethnic community loses any state and legal significance, goes into the sphere of purely personal interests of the individual. In particular, there is currently no “Nationality” column in the passport of a citizen of the Russian Federation; a person has the right not to fill in the corresponding column in other official documents.
7. The right to freedom of movement.
The Constitution of the Russian Federation guarantees freedom of movement, both within and outside the state.
Freedom of movement is absolutely incompatible with the residence registration institute that has been operating in Russia for a long time. Currently, the Law of the Russian Federation "On the right of citizens to freedom of movement, choice of place of stay and residence within the Russian Federation" introduced the institution of registration - in order to ensure the necessary conditions for the citizens of the Russian Federation to exercise their rights and freedoms, as well as to fulfill their obligations to other citizens , state and society.
A citizen is obliged to register at the place of his stay and residence, however, the fact of registration or lack thereof does not give rise to any rights and obligations for a citizen and cannot serve as a basis for restricting or a condition for the exercise of the rights and freedoms of citizens provided for by the Constitution and legislation. Registration authorities are authorized only to certify the act of free expression of the will of a citizen when choosing a place of stay and residence. Registration itself is only a method of registering citizens within the Russian Federation provided for by federal law, which is of a notification nature and reflects the fact that a citizen is at the place of stay or residence.
8. Freedom of conscience, freedom of religion.
Every person has the right to profess, individually or jointly with others, any religion or not to profess any, freely choose, have and disseminate religious and other beliefs and act in accordance with them.
9. Freedom of thought and speech.
Coercion to express one's opinions and convictions or to renounce them is not allowed, even if these opinions and convictions are at odds with the laws in force in the state, moral and ethical ideas existing in society.
The Constitution of Russia, international legal acts also establish the possibility of free expression of thought - freedom of speech. However, there is an important limitation here: propaganda or agitation inciting social, racial, national or religious hatred and enmity is not allowed. Promotion of social, racial, national, religious or linguistic superiority is prohibited.
The right of every person to seek, receive, transmit, produce and disseminate information in any legal way is inextricably linked with freedom of thought and speech. The Constitution provides only one limitation in this area - in relation to information constituting a state secret.
Political rights and freedoms of citizens, as well as personal ones, are recognized, respected and protected by the state. However, they have clear legal specifics:
a) these are rights in the sphere of politics (politics is an area of \u200b\u200bactivity related to relations between classes, nations, social groups, the core of which is the problem of possession and implementation of state power; participation in the affairs of the state, determination of forms, tasks, content of its activities), inextricably related to the implementation of state power in the country;
b) since only its citizens can participate in the exercise of state power in the Russian Federation (otherwise Russia would not be a sovereign state), political rights and freedoms are the rights of citizens of Russia. Even the right of everyone to associate has now received an important legislative clarification: in particular, a public association cannot be recognized as a political association, the charter of which provides for the membership in it or other form of foreign citizens, foreign or international organizations;
c) since political rights and freedoms are associated with the conscious participation of a citizen in political relations, the possession of these rights is due to the onset of a certain age. Thus, a citizen has the right to elect to state and local government bodies from the age of 18, the right to participate in the administration of justice - from the age of 25, the right to be a member or participant of a youth public association - from the age of 14.
The Constitution of the Russian Federation enshrines the following basic political rights and freedoms of citizens.
1. Right to Association.
2. The right to assemble peacefully, without weapons, to hold meetings, rallies and demonstrations, processions and pickets.
Rallies, gatherings, demonstrations, processions and picketing are important elements of direct democracy, allowing citizens to freely express their opinions on a variety of issues of public life.
3. The right to participate in the management of state affairs, both directly and through their representatives.
The highest direct form of participation of citizens of the Russian Federation in the management of state affairs is the right to participate in a referendum and the right to elect and be elected to state and local government bodies. Nowadays, the process of exercising these political rights is regulated by both federal and regional legislation. However, for all constituent entities of the Russian Federation, basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation, enshrined in federal law, are mandatory.
In addition, all citizens of the Russian Federation have equal access to public service, and also have the right to participate in the administration of justice (to be a people's assessor, a juror, subject to the conditions stipulated by law - a judge).
4. The right to apply personally, as well as to send individual and collective appeals to state bodies and local self-government bodies.
Citizens' appeals and complaints are an important means of protecting the rights of citizens, the personification of their social and political activity, a way to strengthen ties between citizens and their representatives in government and local government bodies.
In accordance with the Federal Law "On the Fundamentals of the Civil Service of the Russian Federation", a civil servant is obliged, within the limits of his official duties, to timely consider applications from citizens and public associations and make decisions on them in the manner prescribed by federal laws and laws of the constituent entities of the Russian Federation.
The group of socio-economic rights and freedoms of man and citizen is fundamentally different from personal and political rights and freedoms. As Professor E.A. Lukashev, “for their implementation it is not enough to refrain from interfering in this area. The challenge is to create social programs and carry out comprehensive work that would guarantee the proclaimed social, economic and cultural rights. "
Continuation
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The protection of economic and cultural rights, which include the right to social security, including the right to a pension, was first reflected at the beginning of the 20th century in the Constitutions of Mexico (1917) and Russia (1918), and after During the Second World War, these rights were enshrined in a number of international documents (European Social Charter 1961, International Covenant on Economic, Social and Cultural Rights 1966).
The following general features of this group of constitutional rights and freedoms can be identified.
First of all, it should be noted that socio-economic rights, which are part of human rights, relate to the maintenance and normative consolidation of the socio-economic conditions of an individual's life, determine the position of a person in the sphere of work and life, employment, welfare, social protection in order to create conditions, in which people can be free from fear and want. Their volume and degree of implementation largely depend on the state of the economy and the state's resources, and therefore guarantees for their implementation are less developed in comparison with the civil and political rights of the first generation. M. Aliyev believes that, unlike other types of human rights, socio-economic rights have the following features:
these rights are widespread in a certain socio-economic area of \u200b\u200bhuman life;
the implementation of socio-economic rights depends on the state of the country's economy.
Currently, the importance of socio-economic rights in ensuring the legal status of the individual is indisputable. Socio-economic rights combine the rights that provide a person with a decent lifestyle and social protection. For quite a long time, the society has formed universal ideas and values \u200b\u200babout justice, freedom, inalienable human rights, including socio-economic rights. These ideas, which over time acquire an even broader content, form the basis of the concept of a legal and social state.
International legal acts related to the socio-economic rights of citizens can generally be divided into several groups.
The first group includes international legal acts of a universal nature. Such acts include the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1966), and so on.
The second group includes international legal acts of a regional nature. Such acts include the European Social Charter (1961), the European Convention on Social Security (1972), the European Social Security Code (1990), and others.
The third group includes international legal acts of an auxiliary nature. These acts, in particular, may include the conventions and recommendations of the ILO, acting as a specialized agency of the United Nations.
The basic socio-economic rights and freedoms of man and citizen are enshrined in Articles 34-44 of the Constitution of the Russian Federation. Their content is concretized in various branches of law: civil, labor, family, agrarian, etc. This concretization will be discussed in detail in Section 2.1.
The most important institution of socio-economic relations is the right to private property, an indispensable condition for a democratic market economy. The market economy is based on the freedom of the individual - a person and a citizen, on the unconditional observance of his personal and property rights and freedoms, both inherent to him from birth and subsequently acquired on legal grounds. Property is the basis of a person's true independence and confidence in the future. In modern conditions, the state has assumed the duty to protect private property, to ensure its inviolability. In the Russian Federation, private, state, municipal and other forms of property are recognized and protected equally. Everyone has the right to own property, own, use and dispose of it both individually and jointly with other persons. Deprivation of a person of his property by a court decision may take place only in cases provided by law. This is possible either by way of confiscation in the form of punishment for a committed offense, or by way of requisition for state needs (in the event of, for example, a natural disaster or other emergency or special circumstances). The grounds, conditions and procedure for requisition must be defined in the Civil Code or in a special law.
Article 34, like Article 35 of the Constitution of the Russian Federation, proclaims and legally guarantees the freedom of everyone to use their abilities and property in any way not prohibited by law, i.e. freedom of economic activity, and according to Article 35 - private property, because freedom of economic activity on the basis of one's property and one's abilities is the freedom of private property, which is carried out, of course, within the framework of the law.
The special provision of Articles 34 and 35 of the Constitution of the Russian Federation on the rights and freedoms of a person and a citizen is also in the fact that they mean not only the individual and extend not only to the individual rights and freedoms of individuals. These articles state that everyone has the right to have property, to use it, no one can be deprived of their property except by court and in compliance with the relevant rules, and these norms apply not only to individuals - individuals, but also to legal entities - organizations, securing free economic activity and the right to private property.
The proclaimed right of citizens to free enterprise and carry out economic activity is guaranteed by state support for the development of competition and the suppression of manifestations of monopoly. The Constitution prohibits the abuse by the entrepreneur of his dominant position in the market and the use of illegal forms and methods of competition.
The Constitution of the Russian Federation establishes that the ownership, use and disposal of land and other natural resources carried out by their owners freely, if it does not harm the environment and does not violate the rights and legitimate interests of citizens.
The conditions and procedure for land use are determined on the basis of federal legislation. This means that the subjects of the Federation, on the basis of federal law, can issue their own land laws, which, however, should not contradict federal and constitutional federal laws. Since the issues of ownership, use and disposal of land, as provided for in Article 72 of the Constitution, are under the joint jurisdiction of the Russian Federation and its subjects, the latter may, without waiting for the publication of a federal law, issue their own land law. But if in the future a federal law is issued on the same issues, then the law of the subject of the Federation will need to be brought into line with the federal law. In other words, in the event of a conflict between a federal law and another normative act issued in the Russian Federation, the federal law is in effect.
Land plots can be used not only on the right (title) of ownership, but also on the right of indefinite (permanent), temporary use, including lease. The solution of these issues, as well as issues of land ownership, belongs to the joint jurisdiction of the Russian Federation and the subjects of the Federation.
Labor rights and freedoms protect a person from the arbitrariness of employers, give him the opportunity to defend his dignity and interests. Freedom of labor is proclaimed in part 1 of Article 37 of the Constitution of the Russian Federation in accordance with Art. 23 of the Universal Declaration of Human Rights. Freedom of labor means that only citizens themselves have the exclusive right to dispose of their abilities for productive and creative work. Realizing this right, a citizen can choose one or another type of activity and occupation.
The Constitution of the Russian Federation defines mainly the realization of the right to work as work for hire carried out on the basis of an employment agreement (contract), i.e. agreements between a citizen (who in this case acquires the status of an employee) and an enterprise, institution, organization or other citizen (who in this case are employers) in a certain specialty, qualification, position for remuneration with subordination to the internal labor regulations on the terms established by agreement of the parties, as well as legislative and other normative acts. The labor relations of all persons of hired labor are regulated by labor legislation.
The right to freely dispose of one's ability to work means the right not to engage in work at all. The unemployment of citizens cannot serve as a basis for bringing them to administrative and other liability. The Constitution does not indicate the universal obligation of citizens to work, and the article on responsibility for the so-called parasitism is excluded from the Criminal Code.
The prohibition of forced labor under Art. 8 of the International Covenant on Civil and Political Rights, also for the first time in Russia, was reflected at the constitutional level. The term "forced or compulsory labor" means any work or service required of any person under threat of any punishment, work for which that person did not voluntarily offer his services.
At the same time, according to generally accepted international standards, it is not considered forced labor, firstly, military service, and secondly, work in emergency conditions (natural disasters, accidents, accidents); thirdly, work on the basis of a court verdict that has entered into legal force and carried out under the supervision of state bodies responsible for compliance with the law in the execution of court sentences.
Part 3 of Article 37 of the Constitution of the Russian Federation states that everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than the minimum wage established by federal law, as well as the right to protection from unemployment.
The considered constitutional norms are concretized in legislative and other normative acts. For example, the content of the right of citizens to work conditions that meet the requirements of safety and hygiene is detailed in the Fundamentals of Legislation of the Russian Federation on Labor Protection.
The Constitution of the Russian Federation recognizes the right of every citizen to individual and collective labor disputes using the methods of resolving them established by federal law, including the right to strike.
The right to rest, proclaimed in part 5 of article 37, in accordance with article 24 of the Universal Declaration of Human Rights, is one of the fundamental rights. While securing the right to rest as an inalienable right of everyone, Article 37, at the same time, provides that the duration of working hours, weekends and holidays, and annual paid leave established by federal law are guaranteed not to all citizens engaged in a particular activity, but only to those working under an employment contract. ... This means that, by concluding an employment contract (contract), a citizen has the right to demand from a specific employer to comply with the established working hours, provide him with days off and holidays, paid leave, and the employer, in turn, is obliged to satisfy these requirements and provide conditions for the implementation an employee of the right to rest. The annual leave guaranteed by the Constitution is granted to all employees with the preservation of their place of work (position) and average wage for at least 28 days.
State protection of motherhood and childhood, the family as a constitutional principle was first enshrined in 1977. The confirmation of the state policy in this area in the new Basic Law of the Russian Federation complies with the UN international legal acts on human rights and testifies to the importance that is attached to the family in modern society , mother woman, children.
The dominant position among the legal norms designed to protect the family is occupied by the norms of family legislation aimed at strengthening it, ensuring equal rights for women and men in all family relations, and protecting the interests of mother and child in every possible way.
Every child from the moment of birth has a state guaranteed right to upbringing and care. This right is ensured, first of all, by the granting of parental rights to parents, which are at the same time obligations of upbringing, which is enshrined in part 2 of Article 38. At the same time, the equality of rights and obligations of both parents is emphasized, based on the general constitutional principle of equality of rights and freedoms of men and women.
Adult children, in turn, must take care of their disabled parents. This constitutional norm reflected the obligations of adult children towards their parents already enshrined in family law.
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The Constitution recognizes the right of every citizen to social security and at the same time imposes on the state the obligation to create all the necessary conditions for the smooth exercise of this right. Securing guarantees of social security in the Constitution is a stable tradition of the Russian state and complies with the provisions of international legal acts: the Universal Declaration of Human Rights (Articles 22 and 25); International Covenant on Economic, Social and Cultural Rights (Art. 9, Part 1-3, Art. 10); Convention on the Rights of the Child (part 1 of article 26).
Part 1 of Article 39 lists the conditions, the occurrence of which is the basis for social security. These are certain periods in a person's life associated with age, and the state of health or working capacity (illness, disability), and the fulfillment or impossibility of further fulfillment of family responsibilities (raising children, losing a breadwinner). This list is not exhaustive, since social security can be provided in other cases established by law. These include, in particular, being on maternity leave and taking care of a child under the age of one and a half years, acquiring the status of an unemployed, etc.
Article 39 only refers to the monetary form of social security - state pensions and social benefits. However, if necessary, cash payments can be replaced or supplemented by natural forms of social security - maintenance in boarding schools for the elderly and disabled, in orphanages, boarding schools for children deprived of parental care, social services at home, etc.
According to part 3 of article 39, voluntary social insurance, the creation of additional forms of social security and charity are encouraged. Thus, it is possible, at the initiative of the constituent entities of the Federation, local government bodies, labor collectives, public associations or citizens, at their own expense, to provide material support to certain social groups or citizens in addition to social security guaranteed by Part 1 of Article 39.
Part 2 of Article 39 establishes an important rule that state pensions and social benefits are established by law. The existence of relevant federal laws is a necessary guarantee for the realization of the constitutional right to social security.
Adequate housing is an integral part of a decent human standard of living, proclaimed by the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.
The constitutional right to housing expresses the essence of the system of meeting the housing needs of society, that is, it is an essential right, fundamental. The system of specific housing rights of citizens depends on it, and they must correspond, not contradict it. Depending on how its content is determined, the behavior of citizens, state bodies, and business entities develops when choosing options for solving housing problems from those legally possible in a particular life situation.
The right of citizens to housing can be reduced to three legal possibilities, although the rule of Article 40 does not specifically contain such a legal formula: stable, sustainable, permanent use of residential premises in all types of housing stock; improvement of housing conditions in houses of all types of housing stock; providing a healthy living environment, a living environment worthy of a civilized person (the latter follows from the norms of international law).
Part 3 of this article reflects the new role of the state and local authorities in the housing market, which is reduced to assistance, encouragement of housing construction, any form of ownership, legal regulation of relations related to the satisfaction of housing needs of society, determination of the composition of housing stock for social use for socially vulnerable groups population and others.
No one can be arbitrarily deprived of his home by the authorities and administration; nor by the judicial and prosecutorial authorities; not by business entities; nor by officials and employees of enterprises, institutions and organizations; neither by the tenant or the tenant; nor the owner of a residential building or apartment; not a member of a housing and construction (housing) cooperative and residents living with it; nor other citizens.
The violation of the right to housing can be appealed against in court.
Part 1 of Article 41 of the Constitution of the Russian Federation recognizes the right of every person to health protection and medical care in accordance with the Universal Declaration of Human Rights (Article 25) and the International Covenant on Economic, Social and Cultural Rights (Article 12). Health protection is understood as a set of measures of a political, economic, legal, social, cultural, scientific, medical, sanitary-hygienic and anti-epidemic nature aimed at preserving and strengthening the physical and mental health of each person, maintaining his long active life, providing him with medical assistance in in case of loss of health.
Medical assistance includes preventive, therapeutic and diagnostic, rehabilitation, prosthetic and orthopedic and dental care, as well as measures of a social nature to care for the sick, disabled and disabled, including the payment of benefits for temporary incapacity for work.
The right of citizens to health protection is ensured by the protection of the natural environment, the creation of favorable working conditions, everyday life, recreation, education and training of citizens, the production and sale of good-quality food, as well as the provision of affordable medical and social assistance to the population.
The state provides citizens with health protection regardless of gender, race, nationality, language, social origin, official position, place of residence, attitude to religion, beliefs, membership of public associations, and other circumstances.
Part 1 of Article 41 establishes that medical care in state and municipal health care institutions is provided to citizens free of charge at the expense of the corresponding budget, insurance premiums, and other receipts. The guaranteed volume of free medical care to citizens is provided in accordance with compulsory health insurance programs.
Part 2 of Article 41 defines the general procedure for financing health care. In the Russian Federation, federal programs for the protection and promotion of public health are financed, measures are being taken to develop state, municipal, private health systems, activities that promote human health, the development of physical culture and sports, environmental and sanitary-epidemiological well-being are encouraged.
According to part 3 of Article 41, concealment by officials of acts and circumstances that pose a threat to the life and health of people entails liability in accordance with federal law. Citizens have the right to regularly receive reliable and timely information about the factors contributing to the preservation of health or affecting it bad influence, including information on the sanitary and epidemiological state of the area of \u200b\u200bresidence, rational nutritional standards, products, works, services, their compliance with sanitary standards and rules, etc.
The right of citizens to favorable living conditions implies real opportunities to live in a healthy natural environment that meets international and state standards, to participate in the preparation, discussion and adoption of environmental decisions, to monitor their implementation, to receive proper environmental information, and the right to compensation for damage. This right is regulated by Article 42 of the Constitution of the Russian Federation.
The right of citizens to a favorable living environment is ensured by planning and regulating the quality of the environment, measures to prevent environmentally harmful activities and improve the environment, prevent and eliminate the consequences of accidents, disasters, natural disasters, social and state insurance of citizens, the formation of state and public, reserve and other relief funds, organization of medical services for the population, state control over the state of the environment and compliance with environmental legislation.
Citizens have broad powers to exercise their environmental rights, implying the ability to create public associations for the protection of the environment, join such associations and foundations, and make contributions; take part in meetings, rallies, pickets, processions, referenda on environmental protection; to handle letters, petitions, demand their consideration; to demand, in administrative and judicial order, the cancellation of decisions on the location, design, construction, reconstruction, operation of environmentally harmful objects, limitation, suspension, termination of their activities; raise the issue of bringing to justice the guilty legal entities and citizens.
For environmental offenses, that is, for guilty illegal acts, officials and citizens bear disciplinary, administrative, civil or criminal liability, and enterprises, institutions, organizations - administrative and civil liability.
Part 1 of Article 43 of the Constitution of the Russian Federation recognizes the right of every person to education in accordance with the Universal Declaration of Human Rights (Article 13). Education is understood as a purposeful process of teaching and upbringing in the interests of the individual, society, the state, accompanied by the statement that students have achieved educational levels determined by the state. Under the receipt of an education by a citizen is understood the achievement of a certain educational level, which is certified by an appropriate document.
Part 2 of Article 43 guarantees the general availability and free of charge of preschool, basic general and secondary vocational education in state or municipal educational institutions and enterprises. Citizens of Russia on its territory are guaranteed the opportunity to receive education regardless of race, nationality, language, sex, age, health status, social, property and official status, social origin, place of residence, attitude to religion, beliefs, party affiliation, and a criminal record.
In accordance with part 3 of Article 43 of the Constitution of the Russian Federation, the state guarantees the receipt, on a competitive basis, of free vocational education in state, municipal educational institutions within the limits of state educational standards, if a citizen receives education of this level for the first time.
According to part 4 of article 43, basic general education and, therefore, state certification upon its completion are mandatory. The constitutional obligation to ensure that children receive basic general education rests with the parents or persons replacing them.
Part 5 of Article 43 provides that the Russian Federation sets federal state educational standards, supports various forms of education and self-education. Federal state educational standards determine the mandatory minimum content of basic educational programs, the maximum amount of study load of students, requirements for the level of training of graduates. When implementing educational programs for students with developmental disabilities, special state educational standards may be established.
Following the generally recognized principles and norms of international law, Article 44 of the Constitution of the Russian Federation considers the right to freedom in all spheres of creative activity among the most important rights of Russian citizens. This means that the state assumes the obligation to provide its citizens with effective means of legal protection of these rights and freedoms.
According to part 2 of the article, everyone's right to participate in cultural life is largely ensured by the availability of cultural institutions.
If in parts 1 and 2 of article 44 it is said about rights, then in part 3 it is about the duty of every citizen to take care of the preservation of the historical and cultural heritage, to protect the monuments of history and culture. The cultural heritage of the peoples of Russia is extremely rich. These are material and spiritual values \u200b\u200bcreated in the past, monuments and historical and cultural territories and objects that are important for the preservation and development of the identity of all peoples of the Russian Federation, their contribution to world civilization.
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The forms of protection of human and civil rights and freedoms, including socio-economic ones, are different:
1. The right to self-defense. Everyone has the right to defend his rights and freedoms by all means not prohibited by law. When protecting socio-economic rights, this form is practically not used.
2. Judicial protection of rights and freedoms. Currently, this is the most widespread way to protect human and civil rights and freedoms. The Russian judicial system often fails to cope with the flow of claims and complaints from citizens, as a result of which the consideration of cases stretches for months or even years.
3. The right to file a complaint with the Commissioner for Human Rights in the Russian Federation.
The post of the Commissioner for Human Rights in the Russian Federation was established in accordance with the Constitution in order to ensure the guarantees of state protection of the rights and freedoms of citizens, their observance and respect by state bodies, local self-government bodies and officials. The Commissioner, in the exercise of his powers, is independent and not accountable to any state bodies and officials.
4. International protection of human and civil rights and freedoms.
In accordance with the Constitution of the Russian Federation, everyone has the right, in accordance with the international treaties of the Russian Federation, to apply to interstate bodies for the protection of human rights and freedoms if all available domestic remedies have been exhausted.
The ratification by the Federal Assembly of the European Convention for the Protection of Human Rights and Fundamental Freedoms provided all residents of Russia with the opportunity to apply for the protection of their rights to the European Commission on Human Rights, as well as to the European Court of Human Rights.
Implementation socio-economic rightscitizens is one of the most difficult problems of modern Russia. The Constitution of the Russian Federation imposes on the state the obligation to create conditions that ensure a dignified life and harmonious development of the individual. In recent years, the negative trends in the country's economy have been somewhat weakened. There is a certain growth in industrial production. The state of the economy, combined with the favorable situation for Russia on the world energy market, has a positive effect on the execution of the federal budget.
However, these changes have not yet led to a significant improvement in the lives of millions of public sector workers, pensioners, and in general the bulk of the country's population. The economic decline in the 1990s was so severe that it will take years of economic recovery for society to experience a real improvement in the quality of life.
The mechanisms for protecting both human rights in general and, in particular, his socio-economic rights will be discussed in detail in paragraphs 2.2 and 2.3.
2. LEGAL GUARANTEES OF THE IMPLEMENTATION OF SOCIO-ECONOMIC RIGHTS AND FREEDOMS OF CITIZENS
2.1 Ensuring the constitutional rights of citizens in sectoral legislation
In Chapter 1, we examined the principles of protecting socio-economic human rights in the Russian Federation, enshrined in various articles of the Constitution. Now let's look at how these rights are protected in various branches of law.
Private property law is a complex institution regulated by many branches of Russian law. In the Criminal Code of the Russian Federation, crimes against property are highlighted in a separate chapter. The Criminal Code of the Russian Federation provides for liability for theft (Article 158), fraud (Article 159), misappropriation and waste (Article 160), robbery (Article 161), robbery (Article 162), extortion (Article 163), destruction or damage to property (Art. 167-168), theft of a vehicle (Art. 166), causing damage (Art. 165). Theft of objects or documents of special historical, scientific, artistic or cultural value is singled out separately (Article 164).
A significant part of the Civil Code of the Russian Federation is devoted to the property right. The owner has the right to own, use and dispose of his property.
The owner has the right, at his discretion, to perform any actions with respect to the property belonging to him that do not contradict the law and other legal acts and do not violate the rights and interests of other persons protected by law, including alienate his property into the ownership of others, transfer them, while remaining the owner, rights possession, use and disposal of property, pledge property and burden it in other ways, dispose of it in a different way.
Land and other natural resources may be alienated or transferred from one person to another in other ways to the extent that their circulation is permitted by the laws on land and other natural resources.
In the Russian Federation, private, state, municipal and other forms of ownership are recognized. The rights of all owners are protected equally.
The protection of property rights is regulated by Art. 301-306 of the Civil Code of the Russian Federation. In particular, the owner has the right to reclaim his property from illegal possession.
A separate section is devoted to inheritance law in the Civil Code of the Russian Federation. Inheritance is carried out by will and by law.
Property can only be disposed of in case of death by making a will. The testator has the right, at his discretion, to bequeath property to any persons, to determine in any way the shares of heirs in the inheritance, to deprive one, several or all of the heirs by law, without indicating the reasons for such deprivation, and also to include other orders in the will. Freedom of will is limited by the rules on the compulsory share in the inheritance.
Heirs by law are called to inherit in order of priority. The heirs of the first priority by law are the children, spouse and parents of the testator.
Consider an example from Russian court practice related to the protection of private property rights.
The International Conference of Consumer Societies filed a lawsuit declaring invalid the Decree of the Government of Moscow No. 2498 dated 06/13/95 and the order of the Moscow Mayor No. 2549/1-PM dated 02.12.96, providing for blocking the wheels of cars and forced evacuation of vehicles in in cases not provided for by federal legislation, which illegally restricts the rights of citizens - car owners to freely use their property, and also established illegal payments for the return of cars to citizens from parking lots.
Locking wheels and evacuating vehicles impedes the owners' right to use their property and cannot be considered otherwise than a restriction of the property right guaranteed by Art. 35 of the Constitution of the Russian Federation. To establish such restrictions on the rights of citizens, a direct indication in the law is required (Art. 55 h. Z).
The decree of the Government of Moscow and the decree of the Mayor of Moscow, providing for blocking the wheels and forcibly evacuating incorrectly parked cars, contradicts the Constitution of the Russian Federation. To establish such restrictions on rights, a direct indication in the federal law is required.
The civil legislation of the Russian Federation is based on the recognition of the equality of participants in the relations regulated by it, inviolability of property, freedom of contract, inadmissibility of arbitrary interference by anyone in private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights, and their judicial protection.
Both individuals and legal entities acquire and exercise their civil rights by their own will and in their own interest. They are free to establish their rights and obligations on the basis of the contract and to determine any terms of the contract that do not contradict the law.
Civil rights may be restricted by federal law.
Goods, services and financial assets move freely throughout the territory of the Russian Federation. Restrictions on the movement of goods and services can also be introduced in accordance with federal law.
Let's give an example of protection of the right to free economic activity. Citizens of Klimenko and Lednev, who carried out entrepreneurial activities without forming a legal entity, as well as LLC "Bryansktermotrontorg", as a result of one-time inspections by decisions of state tax inspectorates were fined 350 times the statutory minimum monthly wage, which is provided for by the Law of June 18, 1993 . "On the use of cash registers in the implementation of cash settlements with the population" for the fact that they carried out settlements with the population without the use of cash registers. The applicants appealed to the Constitutional Court of the Russian Federation because they believed that the norms they contested violate the constitutional guarantees of rights.
The Constitutional Court of the Russian Federation decided that the sanction provided for by the Law is a fine disproportionate to the offense and can turn from a measure of influence into an instrument for suppressing economic independence and initiative, excessive restriction of freedom of entrepreneurship (Article 34 of the Constitution of the Russian Federation) and the right to private property (Article 35 of the Constitution of the Russian Federation) ... The fine is not proportionate to the offense and restricts freedom of business.
Labor socio-economic human rights are specified in the Labor Code of the Russian Federation. So, according to the Labor Code of the Russian Federation, discrimination in the field of work is prohibited depending on gender, race, skin color, nationality, language, origin, property, social and official status, age, place of residence, attitude to religion, political beliefs, affiliation or non-affiliation with public associations. , as well as from other circumstances not related to the business qualities of the employee.
Establishment of differences, exceptions, preferences, as well as restriction of the rights of employees, which are determined by the requirements inherent in this type of work, established by federal law, or are due to the special care of the state for persons in need of increased social and legal protection, are not discrimination. The Labor Code prohibits forced labor in any form.
The Labor Code of the Russian Federation regulates the working hours. According to the Labor Code, normal working hours cannot exceed 40 hours per week. In this case, the employer is obliged to keep records of the time actually worked by each employee. Normal working hours are reduced for minors, disabled persons of I and II groups, for workers employed in jobs with harmful and (or) dangerous working conditions.
Art. 106 of the Labor Code of the Russian Federation introduces the concept of rest time. Rest time is the time during which the employee is free from work duties and which he can use at his own discretion. The types of rest time are:
breaks during the working day (shift);
daily (inter-shift) rest;
weekends (weekly uninterrupted rest);
non-working holidays;
During the working day (shift), the employee must be given a break for rest and meals lasting no more than two hours and at least 30 minutes, which is not included in working hours. All employees are provided with days off (weekly uninterrupted rest).
With a five-day working week, employees are given two days off per week, with a six-day working week - one day off.
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Work on weekends and public holidays is generally prohibited.
Employees are attracted to work on weekends and non-working holidays with their written consent in the following cases:
to prevent an industrial accident, catastrophe, eliminate the consequences of an industrial accident, catastrophe or natural disaster;
to prevent accidents, destruction or damage to property;
to perform unforeseen work in advance, on the urgent execution of which the normal work of the organization as a whole or its individual divisions depends in the future
In other cases, recruiting for work on weekends and non-working holidays is allowed only with the written consent of the employee.
The Labor Code of the Russian Federation enshrines the right of employees to leave. Employees are provided with annual leaves with preservation of their place of work (position) and average earnings. There are main and additional vacations. The main paid leave is 28 calendar days. Annual additional paid leaves are granted to workers employed in jobs with harmful and (or) hazardous working conditions, workers with a special nature of work, workers with irregular working hours, workers working in the Far North and equivalent areas, as well as in other cases stipulated by federal laws.
Upon dismissal, the employee is paid monetary compensation for all unused vacations. For family reasons and other valid reasons, an employee, upon his written application, may be granted unpaid leave. Pensioners, disabled people, participants of the Great Patriotic War, relatives of military personnel who died in the line of duty; as well as other employees in cases of childbirth, marriage registration, death of close relatives, unpaid leave for the duration determined by the Labor Code is granted upon their written application.
The Labor Code regulates the procedure for protecting the labor rights of workers. The main ways to protect labor rights and legitimate interests of employees are:
state supervision and control over the observance of labor legislation;
protection of labor rights of workers by trade unions;
self-defense by employees of labor rights.
State supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms in all organizations on the territory of the Russian Federation is carried out by federal labor inspectorates.
The main tasks of the federal labor inspectorate are:
ensuring observance and protection of labor rights and freedoms of citizens, including the right to safe working conditions;
ensuring that employers comply with labor legislation and other regulatory legal acts containing labor law norms;
providing employers and workers with information about the most effective means and methods of compliance with the provisions of labor legislation and other regulatory legal acts containing labor law;
bringing to the attention of the relevant state authorities the facts of violations, actions (inaction) or abuse that are not subject to laws and other normative legal acts.
In accordance with the tasks assigned to them, the bodies of the federal labor inspection exercise the following main powers:
exercise state supervision and control over the observance in organizations of labor legislation and other normative legal acts containing labor law norms, through inspections, examinations, issuance of mandatory orders to eliminate violations, bringing those responsible to justice in accordance with federal law;
analyze the circumstances and causes of the violations identified, take measures to eliminate them and restore the violated labor rights of citizens;
carry out, in accordance with the legislation of the Russian Federation, consideration of cases of administrative offenses;
send, in the established manner, relevant information to federal executive bodies, executive bodies of the constituent entities of the Russian Federation, local self-government bodies, law enforcement bodies and courts;
implement measures to coordinate the activities of departmental supervision and control bodies and federal executive bodies in terms of ensuring compliance with labor legislation and other regulatory legal acts containing labor law norms;
carry out preventive supervision over the construction of new and reconstruction of existing production facilities, their commissioning in order to prevent deviations from projects that worsen working conditions and reduce their safety;
exercise supervision and control over the observance of the established procedure for investigation and recording of industrial accidents;
generalize the practice of application, analyze the reasons for violations of labor legislation and other normative legal acts containing labor law norms, prepare appropriate proposals for their improvement;
analyze the state and causes of industrial injuries and develop proposals for its prevention, take part in the investigation of industrial accidents or conduct it independently;
give opinions on draft building codes and regulations, other regulatory documents on their compliance with the requirements of labor legislation and other regulatory legal acts containing labor law, consider and agree on drafts of sectoral and intersectoral rules on labor protection;
participate in the prescribed manner in the development of state labor safety standards;
take the necessary measures to attract, in the prescribed manner, qualified experts in order to ensure the application of the provisions of labor legislation and other regulatory legal acts related to the protection of the health and safety of workers during their work, as well as to obtain information on the effect of the applied methods, materials and methods used on the condition health and safety of workers;
request from federal executive bodies and their territorial bodies, executive bodies of the constituent entities of the Russian Federation, local self-government bodies, prosecutors, judicial bodies and other organizations and receive from them free of charge the information necessary to fulfill the tasks assigned to them;
receive and consider applications, letters, complaints and other appeals from employees about violations of their labor rights, take measures to eliminate the violations identified and restore the violated rights;
inform and advise employers and employees on compliance with labor laws and other regulatory legal acts containing labor law;
inform the public about revealed violations of labor legislation and other regulatory legal acts containing labor law norms, conduct explanatory work on the labor rights of employees;
prepare and publish annual reports on the observance of labor legislation and other regulatory legal acts containing labor law norms, submit them in the prescribed manner to the President of the Russian Federation and the Government of the Russian Federation.
Trade unions are a very important form of protection of workers' labor rights. Trade unions have the right to monitor compliance by employers and their representatives with labor laws and other regulatory legal acts containing labor law norms. Persons who violate the rights and guarantees of the activities of trade unions are liable in accordance with applicable law.
For the purpose of self-defense of labor rights, an employee may refuse to perform work not provided for by an employment contract, as well as refuse to perform work that directly threatens his life and health, with the exception of cases provided for by federal laws. The employer, the employer's representatives have no right to prevent employees from exercising self-protection of labor rights. Harassment of employees for using legal methods of self-protection of labor rights by them is prohibited.
The Labor Code defines the procedure for resolving collective labor disputes. Employees form their requirements at the general meeting if there is a quorum. Further, the requirements are sent in writing to the employer. The employer is obliged to accept the requirements for consideration and give a response within three days. Then, within three days, a conciliation commission is formed from representatives of the employer and employees, trying to resolve the labor dispute. The consideration of a labor dispute by a conciliation commission should last no more than five working days. If no agreement is reached in the conciliation commission, the parties to the collective labor dispute continue conciliation procedures with the participation of a mediator and (or) in labor arbitration.
Consideration of a collective labor dispute with the participation of a mediator is carried out within seven working days from the date of his invitation (appointment) and ends with the adoption by the parties of an agreed decision in writing or drawing up a protocol of disagreements.
Labor arbitration is established by the parties to the collective labor dispute within three working days from the date of the end of the consideration of the collective labor dispute by the conciliation commission or mediator.
If the conciliation procedures did not lead to the resolution of the collective labor dispute, or the employer evades conciliation procedures, does not fulfill the agreement reached during the resolution of the collective labor dispute, then the workers or their representatives have the right to start organizing a strike.
On the initiative of the trade union of the flight personnel of the Russian Federation, in May 1994, a strike was held in the squadrons and aviation enterprises of some regions of Russia. By a court decision, it was declared illegal on the basis of Art. 12 of the USSR Law "On the procedure for resolving collective labor disputes." The applicant asked to check the constitutionality of this article.
The Constitutional Court of the Russian Federation decided that the norm of Art. 12 of the Law contains a prohibition of strikes at civil aviation enterprises, without providing for any differences by enterprises, departments, services and categories of civil aviation workers, taking into account the nature of their activities, as well as the importance of the work they perform. The establishment of a ban on strikes at civil aviation enterprises on the basis of their only belonging to a particular industry does not comply with Art. 37 of the Constitution. Those. a general ban on strike for all civil aviation workers is contrary to the Constitution.
Participation in a strike is voluntary. No one can be forced to participate or refuse to participate in a strike.
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Protection of mothers and children, families is of a complex socio-economic nature and is carried out through the adoption of various government measures to promote motherhood, protect the interests of mothers and children, strengthen the family, its social support, and ensure the family rights of citizens. And although the means and methods of such protection have been constantly expanding in recent years, they need to be further improved, and legal means should occupy a special place. The constitutional principle of protection of motherhood and childhood, the family finds its concrete expression and development in the legislation of the Russian Federation and its subjects: on health protection, on labor and labor protection, on social security, on marriage and family, as well as in a number of norms of other branches of law.
The legislation on the protection of the health of citizens enshrines the right of every woman to decide the issue of motherhood herself. It is provided by giving her the opportunity:
receive free consultations on family planning issues, undergo medical and genetic examinations in order to prevent hereditary diseases in offspring;
perform artificial termination of pregnancy at various stages of pregnancy, depending on the indications, voluntary medical sterilization upon reaching the age of 35 or having at least two children (regardless of these conditions - for medical reasons), artificial insemination or embryo implantation;
use free specialized medical care during pregnancy, during and after childbirth;
to receive special leave during pregnancy and in connection with the birth of a child: maternity leave, childcare.
Maternity leave - 70 calendar days before childbirth and 70 calendar days after childbirth (for complicated childbirth - 86, and for the birth of two or more children - 110) - provided and paid to the woman in full (in the amount of full earnings), regardless of the number of days actually used before delivery. A woman registered with an antenatal clinic before 12 weeks of pregnancy is paid an additional allowance in the amount of 50% of the minimum wage along with the maternity benefit. At the time of the birth of a child, a woman is also entitled to a lump sum of five minimum wages.
Parental leave (partially paid leave until the child reaches one and a half years and additional leave without pay until the child reaches the age of three) are granted to a woman at her request with payment of social benefits and compensations. At the discretion of the family, such leave can be used (in full or in parts) not only by the mother, but also by other family members.
Legislation on labor and labor protection also provides for a set of measures to ensure the special protection of the labor rights of women and the creation of favorable working conditions for them that meet their physiological characteristics. They include:
increased guarantees in connection with motherhood when hiring and firing. For example, it is forbidden to refuse to hire women and reduce their wages for reasons related to pregnancy and the presence of children. Pregnant women with a child under three years old, and single mothers with a child under 14 years old (a disabled child under 16 years old), the reasons for refusal must be communicated in writing. The refusal can be appealed to the court. The dismissal of these categories of women on the initiative of the administration is also not allowed, except in cases of complete liquidation of the enterprise and subject to their mandatory employment;
special rules for the protection of labor and health of women: the prohibition of their labor (highlighting especially women of childbearing age) in heavy work and work with harmful or dangerous working conditions; setting the maximum permissible loads when lifting and moving weights manually; the introduction of regimes restricting the work of pregnant women and women with children, at night work, overtime work and work on weekends, and sending them on business trips; rational employment of pregnant women, their release and transfer to lighter work or facilitation of their work.
The law establishes additional guarantees that allow women to combine work with motherhood:
employment of women with children in part-time or part-time work; at the request of women with children under 14 years old (disabled children under 16 years old), the administration is obliged to establish such a working regime for them on a sliding (flexible) schedule, at home;
providing one of the parents (persons replacing them) with 4 additional paid days off per month to care for children with disabilities, as well as an annual two-week leave without pay for women with two or more children under 12 years of age.
Labor benefits and guarantees provided to women in connection with motherhood are extended by law to fathers raising children without a mother, as well as to guardians (trustees) of minors.
Protection of motherhood and childhood, the family is also ensured by an increase in the level of specialized medical care for mothers and children, the development of the system preschool institutions, the provision of benefits and compensations to low-income families with many children, families raising disabled children, foster families, the payment of social benefits to families with children.
Russian legislation provides social protection for temporarily disabled and unemployed citizens. In the event of temporary incapacity for work, the employer pays the employee an allowance in accordance with applicable law. The basis for the payment of benefits for temporary incapacity for work is a sheet of temporary incapacity for work and, in some cases, a certificate of the established form.
Temporary disability certificates are issued by doctors of medical institutions, and these can be doctors employed in the state, municipal, private health care system, but a license is required to carry out an examination of temporary disability. Doctors who are engaged in private practice acquire the right to issue sick leave after advanced training in the examination of temporary disability.
Upon receipt of sick leave, an identity document is required. The attending physician, as a general rule, issues this leaflet personally if the incapacity for work lasts no more than 30 days, and the doctor can give sick leave for no more than 10 days, i.e. within 30 days, he issues three sick leave. If the incapacity for work continues for more than 30 days, then the issue of temporary incapacity for work is decided by the clinical expert commission of the medical institution.
For violation of the procedure for issuing certificates of incapacity for work, doctors bear disciplinary and criminal responsibility in accordance with the legislation of the Russian Federation.
For a long time, sick leave benefits were calculated in accordance with the rules approved by the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions. The size of the disability benefit was determined depending on the continuous work experience. From January 1, 2004, the amount of the benefit is calculated in a new way, in accordance with the Federal Law of the Russian Federation "On the budget of the Social Insurance Fund of the Russian Federation" dated December 30, 2003 No. 202-FZ, which has come into force.
The main innovation of the Law is to establish the dependence of the amount of temporary disability benefits and maternity benefits from the average earnings of an employee.
From January 1, 2004, in all cases of determining the amount of temporary disability benefits and maternity benefits, it is necessary to continue to take into account continuous work experience and other conditions established by legislative and other normative legal acts on compulsory social insurance.
The procedure for calculating the average wage in order to pay benefits for temporary disability and benefits for pregnancy and childbirth, established by the Law, depends on the duration of the employee's actual work experience in the last 12 months before the onset of temporary disability and maternity leave.
Unemployed citizens are recognized as able-bodied citizens who do not have work and earnings, are registered with the employment service in order to find a suitable job, are looking for work and are ready to start it.
The Federal State Employment Service is an organizationally independent service on the territory of the Russian Federation, whose activities are aimed at:
assessment of the state and forecast of the development of employment of the population, informing about the situation on the labor market;
development and implementation of federal, territorial (regional, regional, district, city) and other targeted programs to promote employment of the population, including programs to promote employment of citizens at risk of dismissal, as well as citizens in particular need of social protection and experiencing difficulties in finding a job;
assistance to citizens in finding suitable work, and to employers in the selection of the necessary workers;
organization, if necessary, of vocational guidance, vocational training, retraining and advanced training of unemployed citizens;
implementation of social payments in the form of unemployment benefits, scholarships during the period of study in the direction of the employment service, the provision of material and other assistance to unemployed citizens and family members of the unemployed who are on their support.
Services related to the promotion of employment of citizens are provided by the employment services free of charge.
The procedure for registering citizens with the employment service bodies was approved by the Decree of the Government of the Russian Federation dated 05.11.99, No. 1230 in accordance with article 3 of the Law and establishes certain norms and sequence of work with applicants.
The state guarantees unemployed citizens the payment of unemployment benefits, including during the period of temporary disability of the unemployed; payment of a scholarship during the period of professional training, advanced training, retraining in the direction of the employment service, including during the period of temporary disability.
For citizens dismissed:
1. In connection with the liquidation of the organization or the reduction in the number or staff of employees who were not employed during the period during which they retain their average earnings at their last place of work (including severance pay);
2. At their own request for the reason:
2.1. Moving to a new place of residence in another area;
2.2. Disease that prevents you from continuing to work or live in the area;
2.3. The need to care for a disabled person of group 1 or a sick family member;
2.4. Employer's violation of a collective or labor agreement;
2.5. Emergencies (military action, epidemic, etc.) that prevent the continuation of work;
2.6. Dismissal of a woman with children under the age of 14;
unemployment benefit (in the 1st benefit period) is assigned for no more than 12 months. If during this period the employment service did not employ a citizen or he himself did not find a suitable job, the payment of unemployment benefits is suspended for 6 months without removing the citizen from the register. If during this period the issue of employment has not been resolved, the payment of benefits is resumed again (2nd period of payment of benefits) for 12 months. Thus, the maximum period for payment of benefits for this category of citizens cannot exceed 24 calendar months, even if in the first period, the period for payment of benefits is extended due to preferential length of service. Unemployment benefit for this category of citizens is paid on the condition that citizens have had 26 calendar weeks of paid work during the 12 months preceding the onset of unemployment, and in case of dismissal of their own free will for the above reasons, there is an entry in the work book (employment contract, if the employer is an individual). The amount of unemployment benefits for this category of citizens is as follows:
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1st payment period:
The first three months - 75% of the average earnings;
The next 4 months - 60% of the average earnings;
Further - 45% of average earnings;
2nd benefit period: 30% of the subsistence level.
For citizens dismissed of their own free will for other reasons and having 26 calendar weeks of paid work in the 12 months preceding the onset of unemployment, two six-month periods of benefit payment are established. The amount of unemployment benefits for this category of citizens depends on the subsistence level established in the subject of the Russian Federation:
1st period - 40% of the living wage;
2nd period - 20% of the living wage.
The extension of the period for payment of benefits in the 1st period for this category of citizens for preferential service is not established.
For citizens dismissed on all other grounds, as well as for citizens who do not have 26 calendar weeks of paid work during the 12 months preceding the onset of unemployment, two six-month periods of benefit payment are also established. The amount of unemployment benefits (also depends on the size of the subsistence minimum) for this category of citizens:
1st period - 30% of the living wage;
2nd period - 20% of the living wage.
The Federal Law "On Employment of the Population in the Russian Federation" limits the payment for the period of temporary disability of the unemployed to thirty calendar days during a 12-month period of unemployment.
The Constitutional Court recognized this provision of the Law as inconsistent with Art. 39, part 1 of the Constitution of the Russian Federation, which guarantees everyone social security by age, in case of illness, disability, loss of a breadwinner, for raising children and in other cases established by law, since there is no guarantee in federal legislation that the unemployed will be provided with another source of livelihood within the framework of social security system with the continuation of temporary incapacity for work beyond the specified period.
The provision of the Federal Law "On Employment of the Population in the Russian Federation" limiting the payment of the period of temporary disability of the unemployed to thirty calendar days during a 12-month period of unemployment is contrary to the Constitution of the Russian Federation.
Labor pension - a monthly cash payment in order to compensate citizens for wages or other income that the insured persons received before the establishment of a labor pension or were lost by disabled family members of the insured persons in connection with the death of these persons.
There are several types of labor pensions.
Men who have reached the age of 60 and women who have reached the age of 55 have the right to an old-age labor pension. An old-age retirement pension is awarded if you have at least five years of insurance experience. Insurance experience is the total duration of the periods of work and (or) other activities during which insurance contributions were paid to the Pension Fund of the Russian Federation, taken into account when determining the right to a labor pension, as well as other periods included in the insurance experience.
The disability retirement pension is established in the event of a disability in the presence of a III, II or I degree limitation of the ability to work, determined for medical reasons.
Disabled family members of the deceased breadwinner who were dependent on him / her have the right to a labor pension in the event of the loss of the breadwinner.
Citizens who, for any reason, do not have the right to a labor pension, are established a social pension on the conditions and in the manner determined by the Federal Law "On State Pension Provision in the Russian Federation" dated December 17, 2001 No. 51-FZ.
The appointment, recalculation and payment of labor pensions, including the organization of their delivery, are carried out by the body providing pension provision (social security department) in accordance with the Law at the place of residence of the person who applied for the labor pension.
An old-age labor pension and a disability labor pension may consist of the following parts:
basic part;
insurance part;
cumulative part.
The survivor's labor pension consists of two parts:
basic part;
insurance part;
The basic part of the pension does not depend on the length of service and salary and is determined by the Law.
The insurance part of the pension is the ratio of the estimated pension capital and the pensioner's survival time in months.
The monthly funded part of the labor pension is calculated according to the same principle as the insurance one, as the ratio of pension savings, in which part of the insurance contributions to the Pension Fund goes to the time of survival.
The funded part of the pension can be entrusted to both a state management company (Vnesheconombank) and a private one. Only companies that have passed the competitive selection of the Ministry of Finance of the Russian Federation can manage the funds of the funded part.
On March 1, 2005, the Housing Code of the Russian Federation came into force. The Code introduces the concept of citizens' housing rights. Citizens, at their discretion and in their own interests, exercise their housing rights, including dispose of them. Citizens are free to establish and exercise their housing rights by virtue of an agreement and (or) other grounds provided for by housing legislation. Citizens, exercising their housing rights and fulfilling obligations arising from housing relations, must not violate the rights, freedoms and legitimate interests of other citizens. Housing rights can be limited on the basis of federal law and only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the country's defense and state security. Citizens who are legally on the territory of the Russian Federation have the right to freely choose residential premises for living as owners, tenants or on other grounds provided for by law. State authorities should contribute to ensuring the housing rights of citizens. The Code enshrines the right to the inviolability of the home. Penetration into a dwelling without the consent of citizens living in it legally is allowed in cases and in the manner prescribed by federal law, only in order to save the lives of citizens and (or) their property, to ensure their personal safety or public safety in emergency situations, natural disasters , catastrophes, mass riots or other circumstances of an emergency nature, as well as for the purpose of arresting persons suspected of committing crimes, suppressing crimes being committed or establishing the circumstances of a crime committed or an accident that has occurred.
Citizen Kuznetsov was sentenced to two years in prison. A lawsuit was filed with the People's Court by JSC "Krasny Luch" for recognizing him as having lost the right to use housing in connection with paragraph 8 of Part 2 of Article 60 of the Housing Code of the RSFSR, according to which housing is retained by a citizen in his absence for 6 months, and then he can be deprived of his home in court. The District Court applied to the Constitutional Court of the Russian Federation in order to verify the constitutionality of this provision.
The Constitutional Court of the Russian Federation in its Resolution noted that the temporary non-residence of a person in a residential premises, including due to his conviction to imprisonment, cannot testify to the improper exercise by the tenant of his housing rights and obligations and serve as a basis for deprivation of the right to use the residential premises (Art 40 of the Constitution of the Russian Federation). This rule leads to discrimination in the housing rights of certain categories of citizens, because deprivation of home in connection with conviction carries additional punishment not provided for by the criminal code, which violates Art. 19 of the Constitution of the Russian Federation. The Constitutional Court recognized this provision of the Law as contrary to the Constitution, its Articles 19, 40, 46 and 55. a citizen cannot be deprived of his or her home due to being in prison.
The general procedure for the provision of medical and social assistance, as well as the rights of citizens in the provision of medical and social assistance, are established by the Fundamentals of Legislation on the Protection of Citizens' Health as amended on June 30, 2003, No. 86-FZ.
The main principles of protecting the health of citizens are:
1) observance of human and civil rights in the field of health protection and provision of state guarantees related to these rights;
2) the priority of preventive measures in the field of public health protection;
3) the availability of medical and social assistance;
4) social security of citizens in case of loss of health;
5) the responsibility of public authorities and management, enterprises, institutions and organizations, regardless of the form of ownership, officials for ensuring the rights of citizens in the field of health protection.
Sources of funding for public health protection are:
1) funds from budgets of all levels;
2) funds allocated for compulsory and voluntary medical insurance in accordance with the Law of the Russian Federation "On medical insurance of citizens in the Russian Federation" dated June 28, 1991 No. 1499-1;
3) funds from trust funds intended to protect the health of citizens;
4) funds of state and municipal enterprises, organizations and other economic entities, public associations;
5) income from securities;
6) loans from banks and other creditors;
7) gratuitous and (or) charitable contributions and donations;
8) other sources not prohibited by the legislation of the Russian Federation.
The rights of certain groups of the population are specifically guaranteed by the state. In the Fundamentals of Legislation on the Protection of Citizens' Health, guarantees in the field of health protection are established for: family; pregnant women and mothers; minors; military personnel, citizens subject to conscription and entering military service under a contract; elderly citizens; disabled people; citizens in emergency situations and in ecologically unfavorable areas, etc.
When applying for medical care and receiving it, citizens have the right to:
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respectful and humane treatment on the part of medical and service personnel;
the choice of a doctor, including a family and attending doctor, subject to his consent, as well as the choice of a medical and preventive institution in accordance with compulsory and voluntary medical insurance contracts;
examination, treatment and maintenance in conditions that meet sanitary and hygienic requirements;
holding a consultation and consultations of other specialists;
relief of pain associated with the disease and (or) medical intervention, using available methods and means;
keeping confidential information about the fact of seeking medical help, about the state of health, diagnosis and other information obtained during examination and treatment;
informed voluntary consent to medical intervention;
refusal of medical intervention in accordance with Art. 33 Basics;
obtaining information about their rights and obligations and the state of their health, as well as the choice of persons to whom information about the patient's health can be transferred in the interests of the patient;
receiving medical and other services within the framework of voluntary medical insurance programs;
compensation for damage in case of harm to health in the provision of medical care.
In case of violation of the patient's rights, he can file a complaint directly with the head or other official of the medical and preventive institution in which he is receiving medical assistance, with the relevant professional medical associations and licensing commissions, or with the court.
In the Russian Federation, public health protection is provided by state, municipal and private health systems. Relations between citizens, public authorities and administration, business entities and subjects of state, municipal and private health care systems in the field of health protection are regulated by Art. 12, 13, 14 Fundamentals
The right to education is regulated by the Law of the Russian Federation "On Education" dated 10.07.92 No. 3266-1. Russian citizens have the right to receive basic general education in their native language, as well as to choose the language of instruction within the framework of the opportunities provided by the education system in accordance with Art. 6 of the Law.
The availability and free of charge of preschool, basic general and secondary vocational education is ensured by the state through the creation of an education system and appropriate socio-economic conditions for education.
The education system is understood as a set of:
systems of successive educational programs and state educational standards of various levels and directions;
networks of educational institutions implementing them of various organizational and legal forms, types and types;
the system of educational authorities and their subordinate institutions and enterprises.
The educational program determines the content of education of a certain level and focus. In the Russian Federation, educational programs are being implemented, which are divided into:
1) general education (basic and additional);
2) professional (basic and additional).
General education programs include:
1) preschool education;
2) primary general education;
3) basic general education;
4) secondary (complete) general education.
Professional programs include:
1) primary vocational education;
2) secondary vocational education;
3) higher professional education;
4) postgraduate professional education.
Art. 19 of the Law establishes the compulsory basic general education only until the student reaches the age of fifteen, if he has not received the corresponding education earlier.
Receiving basic general education in a general educational institution with a break from production is limited to the age of eighteen of the student. For persons with developmental disabilities, with deviant (socially dangerous) behavior, citizens held in educational and labor institutions, the age limit for obtaining basic general education in accordance with Art. 19 of the Law can be increased.
By mutual consent of the parents (persons replacing them) and the local education governing body, a student who has reached the age of fourteen may leave the educational institution until they receive basic general education.
The procedure for the development, approval and introduction of state educational standards is determined by the Government in accordance with Art. 7 of the Law. In the Russian Federation, taking into account the needs and capabilities of the individual, it is allowed to master educational programs in various forms: in an educational institution with a separation (mainly) and without interruption from work; in the form of family education, self-education, external studies. However, for all forms of education within the framework of a specific basic general education or basic professional educational program, there is a single state educational standard.
The most important legislative acts establishing real legal guarantees of the freedom of creativity proclaimed by the Constitution are the Fundamentals of the Legislation of the Russian Federation on Culture dated 09.10.92 No. 3612-1 and the Federal Law of the Russian Federation "On Mass Media" dated 04.08.01 No. 107-FZ.
2.2 Judicial protection of socio-economic rights of citizens
The most important instruments for ensuring constitutional guarantees of socio-economic rights and freedoms of man and citizen in the context of the formation of civil society in Russia is the judiciary. Courts of all levels, despite the existing shortcomings, already in modern conditions of the formation of civil society in Russia are an effective legal means of protecting and ensuring the rights, freedoms and legitimate interests of citizens. Defending constitutional freedoms, the court puts itself in the position of an intermediary between the state and the individual, between various individuals and legal entities. But the intermediary role can be effective only if it is based on respect and trust on both sides and if the independence, professionalism, and incorruptibility of the judiciary are real. The judicial system must ensure the stability of sentences, the legality and validity of decisions, the possibility of correcting judicial errors, and strict adherence to procedural rules at all levels. And the main thing is that the sentences and decisions of the courts that have entered into legal force must be executed without fail, not allowing any deviations for reasons of expediency. One of the constitutional freedoms - equality of all before the court - constitutes the foundation of the rule of law.
It is difficult to disagree with the aforementioned judgment, since the constitutional principles of conducting legal proceedings in real law enforcement practice are often violated. The constitutional, criminal procedural and other guarantees of the rights of the citizen are not observed either, and political influence on the judiciary is affecting. Ultimately, this inevitably leads to a violation of the Constitution, ineffectiveness of constitutional norms - guarantees of the rights and freedoms of citizens and other negative consequences.
Therefore, in modern conditions in Russia, the provision of constitutional guarantees of the rights and freedoms of citizens is primarily associated with the creation of a strong, accessible to citizens and independent from anyone judiciary.
At the same time, some theorists and practitioners argue that the concept of a model of justice, which is based on the theory of the isolation of the carriers of the judiciary, is a misunderstanding of the essence of the doctrine of the judiciary. This does not contribute to the formation in the judicial corps of the conviction that the priority in all judicial activity is the implementation of the human rights function.
Since the end of the 1980s, attempts have been made in Russia to reform the existing judicial system. At that time, the Supreme Soviet of the USSR approved on August 4, 1989 the USSR Law "On the Status of Judges in the USSR", and on November 13, 1989 - "Fundamentals of Legislation on the Judicial System of the USSR and the Union Republics." Both of these laws, as well as the USSR Law of November 2, 1989 "On the Procedure for Appealing the Misconduct of Bodies government controlled and officials infringing on the rights of citizens ”, as well as the Law of the RSFSR“ On the Judicial System in the RSFSR ”of July 8, 1981 and other legal acts contained a number of progressive norms, but did not fully ensure the process of reforming the existing judicial system. However, these legislative acts to a certain extent served as the basis for the development of the tasks of judicial reform in Russia.
In October 1991, with the adoption of the Concept of Judicial Reform in the USSR, a process of legal reform was proclaimed along with political and economic reforms.
Decisive steps in the practical implementation of the judicial reform were taken by the Supreme Soviet of the Russian Federation shortly before the adoption of the Constitution of the Russian Federation of 1993. During this period, new categories of cases were transferred to the jurisdiction of courts of general jurisdiction: tax, land, pension, on the right to engage in entrepreneurial activity, to freedom of speech, receiving and disseminating information, resolving conflicts in the spheres of administrative regulation, disputes about the right to engage in political and social activities, etc. The scope of powers in the sphere of criminal proceedings, the sphere of control over the observance of election legislation, labor legislation has expanded. The intensive legislative process was accompanied by the expansion of the scope of judicial regulation.
Already in 1993, with the adoption of the Constitution of the Russian Federation, it was proclaimed that Russia is a legal democratic state.
The State Duma of the first convocation made a significant contribution to the development of the basic provisions of the Constitution of the Russian Federation. During her work, the following were accepted:
Federal Constitutional Law "On the Constitutional Court of the Russian Federation" dated 21.07.94 No. 1-FKZ;
Federal Constitutional Law "On Military Courts of the Russian Federation" dated 23.06.99 No. 1-FKZ;
Federal Law "On State Protection of Judges, Officials of Law Enforcement and Controlling Bodies" dated 20.04.95 No. 45-FZ;
Federal Constitutional Law "On Arbitration Courts in the Russian Federation" dated April 28, 1995, No. 1-FKZ;
Arbitration Procedure Code of the Russian Federation of 07.24.02, No. 95-FZ;
Federal Law "On Additional Guarantees of Social Protection of Judges and Employees of the Apparatus of the Courts of the Russian Federation" dated 10.01.96 No. 6-FZ .
The main system-forming document, which established a unified legal space for legislation on the judicial system, was adopted by the State Duma of the second convocation. This document was the Federal Constitutional Law "On the Judicial System of the Russian Federation" dated December 31, 1996, No. 1-FKZ.
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It was followed by other laws that ensure the further course of judicial reform:
Federal Law "On Bailiffs" dated 21.07.97 No. 118-FZ;
Federal Law "On Enforcement Proceedings" dated 21.07.97 No. 119-FZ;
Federal Law "On the Judicial Department at the Supreme Court of the Russian Federation" dated 01/08/98 No. 7-FZ;
Federal Law "On Justices of the Peace in the Russian Federation" dated 17.12.98 No. 188-FZ;
Federal Law “On Financing the Courts of the Russian Federation” dated 10.02.99 No. 30-FZ;
Federal Constitutional Law "On Military Courts of the Russian Federation" dated 23.06.99 No. 1-FKZ;
Federal Law “On the total number of justices of the peace and the number of judicial precincts in the constituent entities of the Russian Federation” dated December 29, 1999 No. 218-FZ;
Federal Law "On People's Assessors of Federal Courts of General Jurisdiction in the Russian Federation" dated 02.01.2000 No. 37-FZ.
The Constitution of the Russian Federation, which has enshrined the system of judicial bodies, assigns to arbitration courts the functions of a judicial body for resolving economic disputes. Traditionally, for many decades, the resolution of economic (economic) disputes between legal entities has been separated from the resolution of disputes with the participation of citizens. The nature of the cases considered by the arbitration courts, the peculiarities of disputes arising in entrepreneurial activity, the importance of the quick and fair resolution of complex conflicts in the economic sphere have determined the existence of the arbitration court along with the courts of general jurisdiction, as well as the peculiarities of the procedural form of its activities. In 1991-1992, the Law on the Arbitration Court and the Arbitration Procedure Code of the Russian Federation, which have now become invalid, were adopted.
The expansion of judicial competence by narrowing the competence of administrative bodies and their officials not only really ensured the protection of the rights and legitimate interests of citizens and legal entities, but also significantly increased the scope of powers and work on the exercise of judicial power in the Russian Federation by courts of general jurisdiction. Legislative support for the activities of courts of general jurisdiction could solve the most important problems of judicial reform. However, the difference in approaches to the organization of courts of general jurisdiction postponed the adoption of the law on the judicial system for a long time.
During the entire course of the reform, various groups and committees for improving legislation were created and are currently being formed and are functioning in Russia. So, in 2000 by the Order of the President of the Russian Federation dated November 28, 2000 No. 534-RP was formed working group on improving the legislation of the Russian Federation on the judicial system.
The judicial and legal reform received a serious round in mid-late 2001.
First, the Concept "Development of the Russian judicial system for 2002-2006" was finally adopted - a program aimed at the implementation of modern judicial and legal reform, increasing the efficiency of the judiciary in the Russian Federation, creating an optimal organizational, legal and material technical support of the judicial and legal system in the Russian Federation.
Secondly, by the beginning of 2002, the State Duma adopted:
Criminal Procedure Code of the Russian Federation;
Code of Administrative Offenses;
Labor Code of the Russian Federation.
In accordance with the Federal Constitutional Law "On the Judicial System of the Russian Federation" of December 31, 1996 No. 1-FKZ, the judicial system of the Russian Federation is composed of federal courts, constitutional courts and justices of the peace of the constituent entities of the Russian Federation.
Federal courts include:
The Constitutional Court of the Russian Federation (on complaints about violations of the constitutional rights and freedoms of citizens, on checking requests from the courts about the constitutionality of laws applied in specific cases);
The system of federal courts of general jurisdiction: the Supreme Court of the Russian Federation, the supreme courts of the republics, regional and regional courts, courts of federal cities, courts of an autonomous region and autonomous okrugs, district courts, military (in cases of military crimes, disciplinary offenses and civil cases, referred to their competence) and specialized courts;
The system of federal arbitration courts: the Supreme Arbitration Court of the Russian Federation, federal arbitration courts of districts, arbitration courts of the constituent entities of the Russian Federation (in cases of protection of violated or disputed rights of citizens in the field of entrepreneurial and other economic activities).
The courts of the constituent entities of the Russian Federation include: constitutional (charter) courts of the constituent entities of the Russian Federation; justices of the peace who are judges of general jurisdiction of the constituent entities of the Russian Federation.
The Constitutional Court of the Russian Federation, being a part of the federal judicial system, at the same time occupies a special position in it. Its competence is established in the Constitution of the Russian Federation.
The objectives of the Constitutional Court as a specialized body of constitutional control are to protect the foundations of the constitutional order, fundamental human and civil rights and freedoms, to ensure the supremacy and direct action of the Constitution of the Russian Federation throughout the territory of the Russian Federation. The Constitutional Court of the Russian Federation, on complaints of violation of the constitutional rights and freedoms of citizens and at the request of the courts, verifies the constitutionality of the law applied or to be applied in a specific case.
Constitutional legal proceedings are carried out on the basis of the principles of independence, collegiality of consideration and resolution of cases, the state language, publicity, orality and continuity of proceedings in the case, adversarial and equal rights of the parties, In particular, the principle of adversarialness of the parties means that each party must independently collect, present and prove those circumstances , to which she refers as the basis of her claims and objections.
The right to appeal to the Constitutional Court of the Russian Federation with an individual or collective complaint about violation of constitutional rights and freedoms belongs to citizens whose rights and freedoms are violated by the law applied or to be applied in a particular case, and to associations of citizens, as well as general courts of any instance (on complaints and inquiries about violation of constitutional rights and freedoms of citizens by law). In this case, the concept of "citizens" is interpreted broadly, ie. these are not only the actual citizens of the Russian Federation, but also other individuals located on the territory of Russia.
A written appeal to the Constitutional Court of the Russian Federation may take the form of a request, petition or complaint. A complaint is an appeal by a citizen or an association of citizens with a requirement to verify the constitutionality of a law applied or to be applied when resolving a case by a law enforcement body and violating the fundamental rights and freedoms of citizens. The Law on the Constitutional Court of the Russian Federation establishes general requirements for an appeal, and determines the conditions for the admissibility of a complaint.
A complaint about violation of constitutional rights and freedoms of citizens by law is admissible in two cases:
firstly, if the law affects the constitutional rights and freedoms of citizens, i.e. exactly those rights and freedoms that are enshrined in the Constitution of the Russian Federation;
secondly, if the law has been applied or is subject to application in a specific case, the consideration of which has been completed or begun in a court or other body applying the law. It should be borne in mind that only those normative acts that are laws - federal or subjects of the Russian Federation can be appealed to the Constitutional Court.
So, for example, the Constitutional Court of the Russian Federation in connection with the complaints of citizens V.P. Malkova and Yu.A. Antropov, in his Decree of December 27, 1999, No. 19-P, recognized the provision of paragraph 3 of Article 20 of the Federal Law "On Higher and Postgraduate Professional Education" as inconsistent with the Constitution of the Russian Federation. This paragraph provided for age restrictions for persons filling the positions of heads of departments in state and municipal higher educational institutions.
At the same time, the Constitutional Court of the Russian Federation did not begin to check the compliance individual items Model regulations on an educational institution of additional professional education (advanced training) of specialists, approved by the RF Government Decree of June 26, 1995 No. 610, applied to the citizen Yu.A. Antropov from the point of view of their compliance with the Russian Constitution. The Resolution emphasizes that the Constitutional Court of the Russian Federation, on complaints from citizens, checks the constitutionality of only laws applied or subject to application in a particular case.
The complaint, in addition to the listed documents, must be accompanied by a copy of an official document confirming the application or the possibility of applying the contested law when resolving a specific case. Officials or a body that applied to the applicant (in his opinion, unlawfully) this or that law, are obliged to issue copies of such a document at the request of the applicant.
The appeal may be accompanied by lists of witnesses and experts who are proposed to be summoned to the session of the Constitutional Court of the Russian Federation, as well as other documents and materials.
Citizens submit the necessary documents with copies in the amount of three copies.
A citizen's complaint to the Constitutional Court of the Russian Federation is paid by a state fee in the amount of one minimum wage.
An appeal received by the Constitutional Court is first considered by the Secretariat of the Court, which verifies its compliance with the requirements of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”. In case of non-compliance of the application with the requirements of this Law, the Secretariat shall notify the applicant about it. After elimination of the shortcomings of the appeal, the applicant may re-submit it to the Court.
The Constitutional Court may refuse to accept an appeal for consideration in cases where
resolution of the issue raised in the appeal is not within the jurisdiction of the Constitutional Court;
an appeal in accordance with the requirements of the law on the Constitutional Court is not admissible;
on the subject of the appeal, the Constitutional Court previously issued a resolution that remains in force.
Based on the results of consideration of a complaint about a violation of constitutional rights and freedoms of citizens by law, the Constitutional Court of the Russian Federation makes one of the following decisions:
1) on the recognition of the law or its individual provisions as consistent with the Constitution of the Russian Federation;
2) on the recognition of the law or its individual provisions as inconsistent with the Constitution of the Russian Federation.
If the Constitutional Court of the Russian Federation has recognized the law applied in a particular case as inconsistent with the Constitution of the Russian Federation, this case is subject to review by the competent authority in the usual manner. Thus, the violated constitutional rights of citizens are restored or the threat of the application of a law that is contrary to the Constitution of the Russian Federation is prevented.
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The Constitutional Court of the Russian Federation decides exclusively on legal matters The Constitutional Court cannot be used by the parties for political statements and declarations, the participants in the process must not allow offensive statements against the other party, state bodies, public associations, officials and citizens.
The decision of the Constitutional Court of the Russian Federation is final, not subject to appeal and takes effect immediately after its announcement. It cannot be canceled either by the Constitutional Court itself or by other state authorities.
Annually, the Constitutional Court receives up to 10 thousand applications, but only 2-3% of this number meet the requirements of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation."
The protection of constitutional rights and freedoms occupies a significant place in the activities of the Constitutional Court. 2001, 2002, 2003 and until March 31, 2004, out of 73 decisions, they accounted for 52, that is, 71.2%. In the overwhelming majority of cases, complaints from private individuals and requests from state bodies are recognized as correct: the contested statutes and provisions of other regulatory acts do not really comply with the Constitution of the Russian Federation.
A considerable part of complaints and inquiries concern outdated provisions of judicial procedural legislation: in 12 resolutions certain provisions of the Criminal Procedure Code of the RSFSR were declared unconstitutional, in two - the Civil Procedure Code of the RSFSR and in one - the Arbitration Procedure Code of the Russian Federation.
The Constitutional Court defended the constitutional rights of bank depositors, tenants of state residential premises, pensioners leaving for permanent residence across the border, persons of the free professions, private traders and entrepreneurs, foreign citizens from encroachments of both federal and constituent entities of the Russian Federation. The court defended the constitutional rights of victims of the Chernobyl disaster, prevented the authorities from trying to improve their financial affairs by illegal taxation of citizens, etc.
Several cases resolved by the Constitutional Court are related to problems in the electoral legislation. The court opposed the establishment of additional or increased qualifications for presidential candidates in individual republics, confirmed the constitutionality of a number of provisions of the federal electoral legislation, as well as the electoral legislation of the constituent entities of the Federation.
The execution of decisions of the Constitutional Court of the Russian Federation remains a very acute problem. The law states that non-execution, improper execution or obstruction of the execution of the decision of the Constitutional Court of the Russian Federation entails liability established by federal law. However, to date, no laws have been adopted, there are no mechanisms that determine sanctions and the procedure for imposing penalties on persons and bodies that do not comply with the decisions of the Constitutional Court of the Russian Federation. In practice, there is often a disrespectful attitude towards decisions of the Constitutional Court of the Russian Federation on the part of bodies and officials applying laws that violate constitutional human rights and freedoms. Thus, the Federal Assembly does not always follow the decisions of the Constitutional Court, providing for the need to urgently fill the gaps in law that arise as a result of the repeal of certain unconstitutional legal provisions by the Court. The authorities of the Udmurt Republic complied with the judgment of the Court only after the intervention of the President of the Russian Federation.
When applying to the Constitutional Court of the Russian Federation, the state duty is transferred.
According to the Constitution of the Russian Federation, the Supreme Court of the Russian Federation is the highest judicial body for civil, criminal, administrative and other cases, court cases of general jurisdiction, exercises judicial supervision over their activities in the procedural forms provided for by federal law and provides clarifications on issues of judicial practice. The RF Constitution establishes its main functions.
The Supreme Court of the Russian Federation exercises judicial jurisdiction throughout the territory of Russia, is the final court of law in all cases within its competence; has the right to review by way of supervision any decision of a lower court, including military courts and specialized courts, in any case; directs judicial practice, giving clarifications on the application of legislation; has the right to initiate legislation; makes a conclusion on the presence of signs of a crime in the actions of the President of the Russian Federation.
The Supreme Court of the Russian Federation can remove any civil case from a lower court and accept it for its proceedings as a court of first instance. The Supreme Court of the Russian Federation considers the following cases at first instance in civil proceedings:
on challenging the non-normative acts of the President of the Russian Federation, the Federal Assembly of the Russian Federation, the Government of the Russian Federation, the Normative acts of the federal ministries and departments concerning the rights and freedoms of citizens;
decisions to terminate the powers of a judge;
on the suspension and termination of the activities of all-Russian and international public associations; on challenging the decisions and actions of the Central Election Commission on the preparation and conduct of a referendum, elections of the President of the Russian Federation and deputies of the Federal Assembly; to resolve disputes between public authorities.
The Supreme Court of the Russian Federation has jurisdiction over criminal cases attributed to its jurisdiction by federal law, as well as cases of special complexity or special social significance, which it has the right to accept for its proceedings on its own initiative or on the initiative of the Prosecutor General of the Russian Federation if there is a petition from the accused.
According to the established practice, a criminal case, in which a death sentence was passed, is requested by the Supreme Court of the Russian Federation for verification by way of supervision, even in the absence of a complaint from the convicted person.
The Supreme Court of the Russian Federation is receiving citizens who appeal against court decisions that have entered into legal force. Registration of citizens for an appointment is carried out by the deputy head of the reception department and a senior consultant. They also explain to citizens the procedure for appealing against court decisions and which state body is empowered to resolve their complaint. Reception is conducted by judges. If at a personal reception questions are raised that do not belong to the competence of the Court or cannot be resolved by the host, then the visitor is given an explanation of where he should contact.
Complaints from citizens are accepted against receipt with the attachment of duly executed court materials:
copies of the decision (verdict, ruling) of the first instance court;
copies of the cassation ruling;
responses to supervisory complaints;
powers of attorney in a civil case, if the person does not participate in the case.
If the applicant does not have the necessary documents with him, the procedure for obtaining them is explained to him. In the event that a citizen is deprived of the opportunity to collect the necessary documents, he is invited to leave the complaint with the Court to make a decision on the complaint without a personal appointment.
Written replies about the adopted decision on complaints are handed to the applicants on the day of admission. If the complaint is not satisfied, the documents attached to it are returned to the applicants.
Properly executed supervisory proceedings on complaints considered at a personal reception, within three days, are transferred to the appropriate judicial composition, the Secretariat of the Presidium or to the department for reviewing court decisions in the manner of supervision.
District courts - since 1997 the name of the main link in the system of general courts in the Russian Federation. Before the adoption of the Federal Constitutional Law "On the Judicial System of the Russian Federation" of December 26, 1996, they were called "people's courts". District courts, within the limits of their competence, consider cases as courts of first and second instance.
The higher court has the right to remove from the lower one any criminal or civil case and consider it as a court of first instance. He can also take up any matter that falls within the jurisdiction of a lower court.
In 2004, the district courts considered 486,810 criminal cases (in 2003 - 466,375 cases) against 507,022 people and passed sentences. The number of civil cases considered by district courts also increased: from 116,319 in 2003 to 120,043 in the past. In 2004, the average monthly workload in district courts was 24.9 cases per judge.
Justices of the peace considered 465,095 cases (in 2003 - 456,312). They passed sentences to 383,881 defendants (311,418 in 2002). In addition, the justices of the peace last year considered 126,750 administrative cases.
Thus, judicial protection of human rights in Russia should not be idealized, but it should not be neglected either. Despite all the shortcomings, the judicial system, the protection of human rights and freedoms through legal means is the most effective mechanism restoration of violated rights. The judiciary is the main structure for the protection of human rights at the national level.
The transition from administrative command management of the economy to state regulation by new methods of market relations created objective conditions for abandoning the system of state arbitration and for the formation of arbitration courts.
The activities of arbitration courts are regulated by the Constitution of the Russian Federation, the Arbitration Procedure Code adopted in 2002, and the Federal Constitutional Law of 28.04.95 No. 1-FKZ "On Arbitration Courts in the Russian Federation". According to Art. 2 of the Arbitration Procedure Code, one of the tasks of legal proceedings in arbitration courts is to protect violated or contested rights and legitimate interests of persons engaged in entrepreneurial and other economic activities.
The system of arbitration courts in the Russian Federation consists of:
The Supreme Arbitration Court of the Russian Federation;
federal arbitration courts of districts (arbitration courts of cassation);
arbitration courts of appeal;
arbitration courts of first instance in republics, territories, regions, cities of federal significance, autonomous regions, autonomous regions.
Let's give an example of the protection of violated socio-economic rights in the Supreme Arbitration Court.
“The Presidium of the Supreme Arbitration Court of the Russian Federation has considered the protest of the Deputy Chairman of the Supreme Arbitration Court of the Russian Federation against the decision of the Moscow Arbitration Court dated 16.12.98 in case No. A40-38693 / 98-48-554.
Having heard and discussed the judge's report, the Presidium established the following.
Closed Joint Stock Company Industrial and Investment Company Evroresursy (hereinafter referred to as the company) applied to the Moscow Arbitration Court with a claim against the Joint Stock Commercial Bank Diamant (hereinafter referred to as the bank) for the recovery of USD 104,828,615 in the value of the unjustifiably retained shares and losses from them unjustified withholding.
In the course of consideration of the dispute, the plaintiff dropped the claim for $ 3,533,985 and increased the amount of the claims to $ 160,866,015.
By the decision of 16.12.98, 20210691 rubles 92 kopecks of the value of shares and 155919152 US dollars of losses were collected from the bank. In respect of USD 3,533,985, the proceedings were terminated.
In the protest of the Deputy Chairman of the Supreme Arbitration Court of the Russian Federation, it is proposed to cancel the decision in respect of losses and send the case in this part for new consideration. The rest of the decision is left unchanged.
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The Presidium considers that the protest is subject to satisfaction on the following grounds.
The company owns 977641 shares of Nizhnevartovsknefgegaz OJSC.
In March 1996, the company transferred the said shares to the bank as security for the fulfillment of obligations arising from the loan agreement.
In May 1997, the loan was repaid, as a result of which the grounds for holding the shares by the bank ceased, but the company's shares were not returned.
The unjustified retention of shares was established by the court, which obliged the bank, in accordance with Article 1102 of the Civil Code of the Russian Federation, to return the shares to the company (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.10.98 N 6202/97).
In connection with the bank's non-return of shares, a real dispute arose.
In the course of the consideration of the case, it was established that the shares were out of the possession of the bank, therefore the court rightly, on the basis of Article 1105 of the Civil Code of the Russian Federation, ordered the bank to reimburse their value to the company.
The company asks to recover losses in the form of loss of profits, which, in its opinion, have arisen as a result of the bank's holding of shares.
In particular, the company refers to the impossibility of implementing two contracts: for the supply of oil from 15.01.96 N ER / 12-1 and the purchase and sale of shares dated 02.12.97.
The contract dated 15.01.96 N ER / 12-1 was concluded for the supply of oil in 1996-1997 under the condition that the company had the title to the shares of the oil seller - Nizhnevartovskneftegaz OJSC.
So, despite the fact that ownership of shares was a condition for the execution of the contract dated 01.15.96 N ER / 12-1, in March 1996 the company transfers the shares to the bank under the contract for the sale and purchase of shares concluded with it dated 04.03.96 N 403 / 96.1 , which will only later be challenged in court.
The contract for the sale and purchase of shares dated 02.12.97 was concluded by the company with Remington Resources Ltd during the period when the shares were held by the bank and disputes over the right to them were resolved in court.
When recovering losses, the court did not check whether they are causally related to the bank's holding of shares and whether the above actions of the company itself during the period of the conclusion and execution of the above agreements contributed to the formation of losses.
The legal grounds for collecting damages have not been examined by the court either.
In accordance with Article 1107 of the Civil Code of the Russian Federation, the company, as a victim of an unjustified retention of shares, has the right to demand income that the bank has obtained or should be derived from the possession of shares, whereas in this claim the company requires the recovery of income not received from its own transactions with shares.
The circumstances of formation and the legal grounds for the recovery of losses shall be established upon a new consideration of the claim for them.
Considering the above, and guided by Articles 187-189 of the Arbitration Procedure Code of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation ruled:
to cancel the decision of the Moscow Arbitration Court of 16.12.98 in case No. А40-38693 / 98-48-554 in respect of losses. The case in this part should be sent for new consideration to the same arbitration court.
In the rest of the decision of 16.12.98 in this case, leave unchanged "
2.3 The role of the ombudsman in the implementation of the socio-economic rights of citizens
The law specifies that the State Duma must appoint a Commissioner for Human Rights in the Russian Federation no later than 30 days from the date of its entry into force.
The Federal Constitutional Law "On the Commissioner for Human Rights in the Russian Federation" dated 02.26.97 No. 1-FKZ defines the status of the Commissioner, his competence, the procedure for appointment and dismissal, establishes that the Commissioner in his activities is independent and not accountable to any state bodies and officials.
The post of the Commissioner for Human Rights in the Russian Federation was established in order to ensure guarantees of state protection of the rights and freedoms of citizens, their observance and respect; government agencies, local governments, officials and government officials.
The activities of the Ombudsman are intended to supplement the existing means of protecting the rights and freedoms of citizens; it does not apply and does not entail a revision of the competence of state bodies that ensure the protection and restoration of violated rights and freedoms.
The main activities of the Commissioner for Human Rights in the Russian Federation are:
consideration of complaints and appeals on violations of human and civil rights and freedoms, taking measures to restore them;
analysis of the legislation of the Russian Federation in the field of human and civil rights, preparation of recommendations for its improvement and bringing it in line with generally recognized principles and norms of international law;
development of international cooperation in the field of human rights;
legal education on human rights and freedoms,
forms and methods of their protection.
To ensure the activities of the Ombudsman, a working apparatus has been created that provides legal, organizational, scientific and analytical, information and reference and other support for the activities of the Ombudsman.
Any citizen of the Russian Federation can file a complaint with the Commissioner, regardless of the state in which he is located. The Commissioner also examines complaints from foreign citizens and stateless persons if they are located on the territory of the Russian Federation.
The Ombudsman considers complaints about decisions or actions (inaction) of state bodies, local self-government bodies, officials, civil servants, if the applicant has previously appealed these decisions or actions (inaction) in a judicial or administrative procedure, but does not agree with the decisions taken on his complaint ... This provision of the law means that the Ombudsman does not consider complaints as a first instance. The applicant must first make efforts to protect the violated rights through a court or other procedure. If he believes that the decisions made in the case have not restored his rights and does not agree with such a decision, then it is possible to file a complaint with the Ombudsman.
The Commissioner does not consider complaints against decisions of federal and regional (constituent entities of the Russian Federation) legislative (representative) bodies of state power.
The complaint must be submitted to the Commissioner no later than one year after the violation of the applicant's rights and freedoms or from the day when the applicant became aware of their violation.
1. Preliminary use of judicial or administrative mechanisms for the protection of rights;
2. Filing a complaint within a year from the date of the alleged violation of the applicant's rights and freedoms.
In addition, the complaint is subject to fairly standard formal requirements: the complaint must contain the last name, first name, patronymic and address of the applicant, a statement of the essence of decisions or actions (inaction) that violated or violate, in the opinion of the applicant, his rights and freedoms, as well as be accompanied by copies decisions taken on his complaint, considered in a judicial or administrative order.
The law provides for special conditions for filing complaints for persons in places of detention. Complaints addressed to the Commissioner by such applicants are not subject to review by the administration of places of detention and are sent to the Commissioner within 24 hours.
A complaint sent to the Commissioner is not subject to a state fee.
Having received a complaint, the Commissioner has the right to:
1) accept the complaint for consideration;
2) explain to the applicant the means that he has the right to use to protect his rights and freedoms;
3) transfer the complaint to a state body, local self-government body or an official, whose competence is to resolve the complaint on the merits;
4) refuse to accept the complaint for consideration.
The Commissioner must notify the applicant of the decision taken on the complaint within ten days. If the applicant is denied to accept the complaint for consideration, then the Ombudsman must give reasons for his refusal. Refusal to accept a complaint for consideration is not subject to appeal.
If the complaint is accepted for consideration, then the Ombudsman informs about this not only the applicant, but also the state body, local government body or official whose decisions or actions (inaction) are being appealed.
Having started the consideration of the complaint, the Commissioner has the right to apply to state bodies with the relevant competence or officials for assistance in conducting an examination of the circumstances to be clarified.
The inspection cannot be entrusted to that body or official whose decisions or actions are being appealed.
The Ombudsman has broad powers to conduct an investigation on a complaint. He has the right:
1) freely visit various state and public institutions and organizations, regardless of organizational and legal forms and forms of ownership, military units, places of detention;
2) request and receive from the organizations involved in the case information, documents and materials necessary for the consideration of the complaint;
H) receive explanations from officials and civil servants, excluding judges, on issues to be clarified during the consideration of the complaint;
4) to check the activities of state bodies, local self-government bodies and officials;
5) instruct state institutions to conduct expert studies and prepare opinions on issues related to the complaint;
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6) to get acquainted with criminal, civil cases and cases of administrative offenses, decisions (sentences) on which have entered into legal force, as well as with cases and materials terminated by proceedings, on which the initiation of criminal cases was refused. These rights of the Commissioner are protected by the Code of Administrative Offenses ...
Interference in the activities of the Ombudsman, failure by officials to fulfill the duties established by the law on the Ombudsman, as well as obstruction of the activities of the Ombudsman in any other form entails an administrative penalty in the form of a fine.
Since the Ombudsman is not a court of law, does not have the power to directly resolve a complaint, the law provides him with the right to influence violators (bodies and officials) through other state bodies that ensure the protection and restoration of violated rights and freedoms of citizens. Based on the results of consideration of the complaint, the Commissioner has the right to:
1) apply to the court with a statement in defense of the rights and freedoms violated by decisions or actions (inaction) of a state body, local self-government body or an official, as well as personally or through his representative to participate in the process in the forms established by law;
2) apply to the competent state authorities with a petition to initiate disciplinary or administrative proceedings or a criminal case against an official, whose decisions or actions (inaction) are seen as violations of human and civil rights and freedoms;
3) apply to a court or prosecutor's office with a petition to check a decision, court judgment, ruling or ruling of a court, or a judge's decision that has entered into legal force;
4) present their arguments to an official who has the right to make protests, as well as be present at the judicial examination of the case in the order of supervision;
5) apply to the Constitutional Court of the Russian Federation with a complaint about the violation of constitutional rights and freedoms of citizens by the law applied or to be applied in a specific case.
Complaints to the Ombudsman can be sent not only by mail, but also through the reception of the Ombudsman in Moscow. Here you can get all the necessary advice on the procedure for filing and filing complaints.
In 2004, the Commissioner received about 23 thousand individual and collective complaints and appeals from citizens about violations of their rights and freedoms. This is almost 3 times more than in the six months of 2003. More than 1.5 thousand applicants applied directly to the Ombudsman's office in Moscow.
Of the total number of complaints and appeals of citizens received in 2004, 36.7% were accepted for consideration; explained to the applicant the means that he has the right to use to protect his rights and freedoms - 51.9%; denied acceptance for consideration - 11.4%.
The fact that more than 60% of complaints were rejected by the Ombudsman testifies, unfortunately, to the low legal culture of the applicants, ignorance of the forms and methods of protecting their rights.
On 20% of the complaints accepted for processing by the Commissioner, a positive decision was reached, i.e. the violated rights were restored in accordance with the applicant's expectations.
The subjects of cases accepted for proceedings by the Commissioner in 2004 were distributed as follows (as a percentage of the total number):
Constitutional and administrative law - 5.6%;
Criminal, criminal procedural and criminal executive law - 31.3%;
Civil law - 21.8%;
Housing law - 10.7%;
Labor law - 14.1%;
Land law and environmental protection - 1.2%;
International law - 1.3%;
Rights of people with disabilities, labor veterans, issues of pensions and benefits - 6.7%;
Rights of servicemen and members of their families - 5.4%;
Refugee and IDP rights - 1.6%;
Others - 0.3%.
In addition to working with individual applicants and providing specific assistance in restoring the violated rights and freedoms of individuals, the Ombudsman has the opportunity to improve both legislation and law enforcement practice in the field of human and civil rights and freedoms. Thus, the Commissioner can prevent typical, massive violations of human rights in general in the Russian Federation.
The practice of the Ombudsman's activities revealed a number of problems related to the imperfection of the current legislation and the need to develop the legal framework of the Ombudsman's own institution.
According to the current Ombudsman V.P. Lukin. The Federal Constitutional Law “On the Ombudsman for Human Rights in the Russian Federation” is in dire need of some adjustment, since a number of provisions of this law unreasonably limit the Ombudsman's capabilities. The main problems are related to the lack of the Ombudsman's right to initiate legislation, as well as to the limited possibilities for applying to the Constitutional Court of the Russian Federation (including on the interpretation of current legislation and international treaties).
An obvious constraint on the deployment of an effective structure of state human rights protection covering the entire Federation is the provisions of Article 5 of the law, which do not establish a clear framework for interaction between federal and regional commissioners. Many constituent entities of the Russian Federation (including remote ones - Primorye, Kamchatka) are receiving requests to appoint regional representatives of the Ombudsman, which is not provided for by law. Insufficiently regulated in the law issues related to the conditions of activity and the structure of the Ombudsman's office, the procedure for the appointment of his deputies is not provided.
CONCLUSION
The new Russia, following the course of reforms, has adopted the basic requirements, principles and standards of the world community in the humanitarian sphere, assumed certain obligations to respect human rights, agreed that these rights are natural and inalienable, given to man by nature, obligatory for all , and, above all, for the authorities themselves, designed to guarantee their unhindered implementation. It unconditionally recognized the relevant international legal acts in this area, adopted its own Declaration of Human and Citizen Rights. The Constitution of the Russian Federation enshrines the provision that human rights are the highest social value, that their observance is the primary duty of the state. For the first time in Russian history, a special post of the Commissioner for Human Rights was introduced, i.e. a new human rights institution has emerged.
Not only personal and political, but also socio-economic human rights are important. Human rights should be inseparable, since they form a single whole, and a person can be free only when he is protected from arbitrariness and poverty. Western countries have succeeded in political democracy, but not social democracy, which often negates many of their achievements. Only recently has immeasurably more attention been paid to the social side of people's lives.
As for Russia, today in the field of the theory of human rights and freedoms there is progress, albeit small, but nevertheless, especially in terms of their legislative design, public attention, political and philosophical understanding, scientific groundwork. Social and economic rights are devoted to Art. 34-44 of the Constitution of the Russian Federation. These provisions are concretized in various areas of sectoral legislation: the Criminal Code, the Civil Code, the Labor Code, the Housing Code, the Fundamentals of Legislation on the Protection of Citizens' Health, etc.
However, legal scholars pay attention to the other side of the issue. “The Constitution is not a literary work, but a strict legal document. Its meaning is not to saturate the text to the limit with beautiful phrases from international legal acts on human rights. The constitution should be based on the traditions and realities of your own country, its norms, especially when it comes to human rights; it is really designed to give a person the opportunity to live by the standards of the civilized world. Otherwise, the entire legal system will remain flawed and defective. "
The author of the work believes that at present in Russia only political rights and freedoms are more or less fully realized. As for socio-economic rights, everything is, to put it mildly, more complicated. For a significant part of the population, higher education, medical care, recreation, housing, medicines, and sanatorium treatment have become inaccessible. Unemployment, lack of adaptation to market relations makes itself felt. The situation is aggravated by the stratification of society into “very rich” and “very poor”. The difference between 10% of the former and 10% of the latter has reached a 25-fold limit (in Western countries, on average, 8-10 times).
The Russian pre-revolutionary lawyer P.I. Novgorodtsev wrote that among the rights that are usually placed in declarations, there is not one that, according to all data, should have found a place in the creed of modern legal consciousness: this is the right to a dignified human existence. The recognition of this right has not only moral but also legal significance.
In our time, such a right is enshrined in the relevant international documents. In particular, the 1948 Universal Declaration of Human Rights states: “Everyone who works has the right to just and satisfactory remuneration ensuring an existence worthy of a human being for himself and his family” (Article 3). “Everyone has the right to a standard of living, including food, clothing, housing, medical care, social services, which is necessary to maintain the health and well-being of himself and his family members, and the right to security in the event of unemployment, illness, disability or other the case of loss of livelihoods due to circumstances beyond his control ”(Article 25).
Unfortunately, such a right is not clearly spelled out in the current Constitution of the Russian Federation. It only says that the Russian Federation is a social state, the policy of which is aimed at creating conditions that ensure a decent life and free human development. As you can see, the above international standards for this important position are not met. The reasons are clear - the state is not yet able to fulfill these requirements. On the contrary, it constantly encourages its citizens to “live within their means”. In addition to the insecurity and lack of guarantees of rights, they are also grossly violated both by criminals and by the government itself, its representatives.
The problem of social and economic human rights is complex and multifaceted, but the main thing in it today is not a theoretical development, not legislative consolidation, not disputes about definitions (although such a task, of course, is not removed), but the creation of the necessary conditions, guarantees, prerequisites, mechanisms realization of the rights of the individual. This is the weakest link in the problem, and it is on this that the efforts of science and practice should be directed.
LIST OF USED LITERATURE
ILO Forced and Compulsory Labor Convention, 1930
Constitution of the Russian Federation.
Civil Code of the Russian Federation. Part I. 30.11.94 No. 51-FZ.
Civil Code of the Russian Federation. Part II. January 26, 1996 No. 14-FZ.
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Civil Code of the Russian Federation. Part III. 26.11.01 No. 146-FZ.
Housing Code of the Russian Federation of December 29, 2004 No. 188-FZ.
Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ.
The Criminal Code of the Russian Federation of 13.06.96 No. 63-FZ.
The Criminal Procedure Code of the Russian Federation of December 18, 2001 No. 174-FZ.
Federal Law of the Russian Federation "On Labor Pensions in the Russian Federation" dated 17.12.2001 No. 173-FZ.
Federal Law of the Russian Federation "On Employment of the Population in the Russian Federation" dated 10.01.03 No. 8-FZ.
Federal Law of the Russian Federation "On Political Parties" dated 23.06.03 No. 85-FZ.
Federal Law of the Russian Federation "On the budget of the Social Insurance Fund of the Russian Federation" dated 30.12.03 No. 202-FZ.
Federal Constitutional Law "On Arbitration Courts of the Russian Federation" dated 28.04.95 No. 1-FKZ.
Federal Constitutional Law "On the Constitutional Court of the Russian Federation" dated 21.07.94, No. 1-FKZ.
Federal Constitutional Law "On the Judicial System of the Russian Federation" dated 31.12.96 No. 1-FKZ.
Federal Constitutional Law "On the Commissioner for Human Rights in the Russian Federation" dated 02.26.97 No. 1-FKZ.
Law of the Russian Federation "On Education" dated 10.07.92 No. 3266-1.
Fundamentals of legislation on the protection of public health as amended on 30.06.03 No. 86-FZ.
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 22, 2001 N 7598/00 // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2001 - No. 9.
Resolution of the Constitutional Court of 05/17/95, No. 5-P.
Resolution of the Constitutional Court of 23.06.95 No. 8-P.
Resolution of the Constitutional Court dated 16.12.97 No. 20-P.
Resolution of the Constitutional Court of 12.05.98, No. 14-P.
Resolution of the Constitutional Court of December 27, 1999 No. 19-P.
Decision of the Judicial Collegium for Civil Cases of the Armed Forces of Russia dated 04.06.97. Bulletin of the Armed Forces of Russia No. 22/98.
Report on the activities of the Commissioner for Human Rights in 2004.
Aliev M. Human right to material security in old age, in disability or in case of loss of breadwinner. // Law - theory and practice. 2005. No. 1.
Baglai M.V. Constitutional law of the Russian Federation: Textbook for law schools and faculties. M., 2004.
A.A. Bezuglov, S.A. Soldatov Constitutional law of Russia: Textbook for legal. universities (full course). In 3 volumes. M., 2001.
Voevodin L.D. The legal status of a person in Russia. M., 2005.
State law of the Russian Federation: A course of lectures for legal institutes and faculties. Volume I / Ed. O.E. Kutafina. M., 2003.
State law of the Russian Federation: A course of lectures for legal institutes and faculties. Volume II / Ed. O.E. Kutafina. M., 2004.
Dmitriev Yu.A., Zlatopolsky A.A. Citizen and power. M., 2004.
A.V. Zinoviev Constitutional law: Lecture notes. SPb., 2006.
Ignatenko G.V. Constitution and human rights: international legal aspect // Legal problems of Eurasian cooperation: global and regional dimensions. Yekaterinburg, 2004.
Ilyin I.A. On the essence of legal consciousness. M., 2003.
Koveshnikov E.M. Constitutional law of the Russian Federation: A short course of lectures. 2nd ed. M, 2000.
What right belongs to the group of social and economic human rights? The answer is easy to give if we turn to the Constitution of the Russian Federation and the Universal Declaration of Human Rights. They declare that every individual from birth has inalienable rights and freedoms. Articles 1-33 of the basic law of the Russian Federation declare the fundamental rights of the individual - the right to life, personal freedom, inviolability of the home, freedom of speech and conscience, participation in government.
For their practical implementation, a certain economic basis is required. To create it, citizens need to enter into economic and social relations with each other, with society and with the state. The block of rights related to economic and social relations is called socio-economic rights.
Definition
When defining which right belongs to economic human rights, jurists and economists clarify that these are rights arising from the economic activities of citizens. Such rights arise on the basis of any material or intellectual object and are associated with its production, acquisition or sale.
Basic economic rights
What law is related to economic human rights? The principles common to all human rights apply to economic rights. These principles guarantee equality of rights for all and everyone and the inadmissibility of infringement of rights on any grounds. The main economic rights are:
- private property right. This includes ownership of land and real estate, as well as intellectual products;
- the right of inheritance. Ensures the continuity of economic activity and additional motivation of members of society to work for its benefit;
- freedom of entrepreneurial activity. Protects the economic initiative of citizens from the arbitrariness of the state and groups of individuals;
- freedom of labor;
- the right to strike.
These are the fundamental rights enshrined in Articles 34-37 of the Constitution.
What right belongs to the group of socio-economic rights, except for the basic ones?
What right applies to both economic human rights and social rights? These rights act as development or varieties of fundamental rights:
These rights are described in Articles 38-41 of the Basic Law. The social responsibility of the state to citizens and society to its members provides confidence in the future and enables people to work with full dedication. The Constitution equally protects the rights of both employed and entrepreneurial people.
We have considered briefly which law is related to economic human rights.
Successful implementation and reliable protection of your rights!
“Everyone, as a member of society, has the right to social security and to exercise the rights necessary to maintain his dignity and for the free development of his personality in the economic, social and cultural fields through national efforts and international cooperation and in accordance with the structure and resources of each state. "
“Socio-economic rights concern the maintenance and normative consolidation of the socio-economic conditions of an individual's life.
Economic rights provide a person with free control over the main factors of economic activity. These include: the right to work; the right to property; the right to entrepreneurship; the right to strike, etc. In addition, workers and employers have the right to conclude collective agreements; the right to freely associate in national or international organizations to protect their interests.
Social rights provide a person with a decent standard of living and social security. One of the most important is the right to social security, including social security, pensions and health care. "
"1. The right to social security, including social insurance . Every person, as a member of society, has the right to receive the necessary support in accordance with the structure and material resources of each state. Economic growth, whatever it may be, cannot provide equal welfare for all members of society. In Belarus, the social security system includes social insurance, which includes free medical care, benefits in case of illness, disability, pregnancy and childbirth benefits, etc.
2. The right to work, free choice of work, equal pay for equal work, fair and favorable working conditions, remuneration that ensures a decent human existence. Everyone has the right to work, to free choice of work. This means that he has the freedom to conclude and terminate a contract, can work regardless of education, previous profession, political beliefs, nationality, skin color, etc.
A person has the right to just and favorable working conditions, which means working conditions that would promote efficiency and high productivity; on equal pay for equal work without any discrimination (when paying you must proceed from what was done and how, and not by whom); for a fair remuneration that would provide him with a dignified existence. The amount of wages established in the state must be sufficient for the normal existence of the employee and his family.
Labor problems in Belarus are regulated by a special set of laws - the Labor Code of the Republic of Belarus.
3.The right to rest and leisure... This article guarantees the right to a limitation of the working day and to paid periodic leave. There are generally accepted (albeit optional) norms: 7 - 8-hour working laziness, 5 - 6-day working week, annual leave with preservation of the place of work and earnings.
4. The right to a standard of living necessary to maintain. health and well-being, including food, footwear, clothing, medical care and necessary social services. The worker and his family must have sufficient means of subsistence, ensuring a normal living standard. A normal living standard is defined in different countries in different ways, but everywhere it includes the ability to meet basic needs for food, housing, household items, utilities, and health care and education.
5. The right to the highest attainable standard of physical and mental health.States should take the measures necessary for the healthy development of children, the reduction of stillbirth and infant mortality, for the improvement of the environment, the observance of occupational hygiene, the prevention and treatment of epidemic, occupational and other diseases and the fight against them, to create conditions that would provide all the necessary medical assistance and medical care in case of illness.
6.The right to protection of family, motherhood andchildhood. Particular attention is paid to the protection of the family as the basic unit of society, the protection of motherhood and childhood, which especially require additional attention and support from the state. "
The rights and freedoms united in this group are essentially the basis of all other rights and freedoms. Their implementation forms the basis of the material life of society, the state and every person. They allow you to solve the problem formulated in Art. 7 of the Constitution, which, having proclaimed the Russian Federation a social state, requires the state to pursue a policy aimed at creating conditions that ensure a dignified life and free human development. In the same article, which is included in the content of the foundations of the constitutional system of Russia, the provisions defining all economic, social and cultural rights of man and citizen are enshrined. “In the Russian Federation,” it is emphasized in Part 2 of Art. 7 of the Constitution, - the body and health of people are protected, a guaranteed minimum wage is established, state support for family, motherhood, fatherhood and childhood, disabled people and elderly citizens is being provided, social services, state pensions, benefits and other guarantees of social protection are established ”.
1. The right to entrepreneurial activity. It was first enshrined in the 1993 Constitution, which establishes that everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law (part 1 of article 34).
Restrictions on the use of this freedom of activity are due to the need to protect the legal rights and interests of others, enshrined in the norms of civil, labor, economic, commercial and criminal law.
Part 2 of Art. 34 of the Constitution also stipulates that “economic activity aimed at monopolization and unfair competition is not allowed”. The content of this norm is specified in the acts of sectoral legislation. The Civil Code of the Russian Federation is of particular importance here.
2. The right to private property. Unlike all earlier socialist-type Russian constitutions, the 1993 Constitution consolidated the institution of private property. Determining the foundations of the constitutional system, the Constitution of the Russian Federation included in their content the recognition of private property, including land and natural resources, and its equal protection with other forms of property.
The right to private property is protected by law. Everyone has the right to own property, own, use and dispose of it both individually and jointly with other persons. No one can be deprived of their property except by a court decision. Compulsory alienation of property for state needs can be carried out only on condition of prior and equivalent compensation (Article 35 of the Constitution).
In addition to this article, the constitutional regulation of the rights to entrepreneurial activity and private property is contained in Art. 8, 45, 17, 18, 52, 53, etc.
Along with private property, the Constitution of the Russian Federation establishes and guarantees the right of inheritance, the legal regulation of the implementation of which is carried out by the norms of civil legislation - part of the third Civil Code of the Russian Federation.
3. The right to land. For the first time in the history of constitutional construction in the Russian Federation, the 1993 Constitution secured the right of citizens and their associations to have land in private ownership.
The possession, use and disposal of land and other natural resources is carried out by their owners freely, if this does not harm the environment and does not violate the rights and legitimate interests of other persons.
The conditions and procedure for the use of land are determined by federal law (RF LC, Federal Law No. 101-FZ dated July 24, 2002 "On the turnover of agricultural land", etc.).
Securing the right to private ownership of land does not exclude collective, municipal, state ownership of land and natural resources.
4. The right to free labor. Free labor is the basis for the well-being of individuals and the state as a whole. Article 37 of the Constitution states: “Labor is free. Everyone has the right to freely dispose of their abilities for work, to choose their type of activity and profession. "
The constitutionally enshrined right, as already noted, is the ability to perform certain actions, the ability to choose behavior. The choice of the type of activity and profession is determined not only by the desire of a person, but also by his abilities, education, social need for this profession or type of activity, etc.
The RF Constitution also states that “forced labor is prohibited”. This led to the exclusion of the definition of labor as a legal obligation of a citizen, which previously existed in our Constitution.
The Constitution of the Russian Federation has enshrined guarantees of social protection of a person in connection with work. "Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than the minimum wage established by federal law, as well as the right to protection from unemployment" (Article 37) ...
The Constitution also recognizes the right to individual and collective labor disputes using the methods of resolving them established by federal law, including the right to strike. The procedure for exercising this right is contained in the Labor Code of the Russian Federation and numerous regulatory legal acts.
5. The right to rest. The right to free work is inextricably linked with the right to rest. Both of these rights are enshrined in one article of the Constitution (Art. 37).
Everyone has the right to rest. A person working under an employment contract is guaranteed the duration of working hours, days off and holidays, and paid annual leave established by federal law.
The exercise of the right to rest is regulated by national, sectoral and departmental acts of labor law, primarily Section 5 of the Labor Code of the Russian Federation.
6. Family protection. State support for family, motherhood, fatherhood and childhood, enshrined as one of the foundations of the constitutional system of Russia, led to the establishment in Art. 38 of the Constitution stipulates that motherhood and childhood, the family are protected by the state. Taking care of children and their upbringing is an equal right and responsibility of parents. Able-bodied children over 18 years of age must take care of disabled parents.
The mechanism and guarantees for the implementation of this right are regulated by the RF IC, Federal Laws of May 19, 1995, No. 81-FZ “On State Benefits to Citizens with Children”; dated July 24, 1998 No. 124-FZ "On the basic guarantees of the rights of the child in the Russian Federation", etc.
7. The right to social security. The state takes care of those who completely or partially lose their ability to work. As recorded in Art. 39 of the Constitution, "everyone is guaranteed social security by age, in case of illness, disability, loss of the breadwinner, for raising children and in other cases established by law." The law establishes state pensions and social benefits for these categories of citizens. Along with the state, voluntary social insurance, the creation of additional forms of social security and charity are encouraged.
The procedure for the implementation of this right is enshrined in numerous regulatory legal acts, the content of which will be considered when studying the relevant legal branches.
8. The right to housing is one of the most important human rights. Everyone has the right to housing. No one can be arbitrarily deprived of the latter. State authorities and local self-government bodies encourage housing construction, create conditions for the exercise of housing rights (Article 40 of the Constitution).
The Constitution enshrines a different approach to ensuring this right for various categories of the population. The poor and other citizens specified in the law who need housing are provided free of charge or for an affordable fee from state, municipal and other housing funds in accordance with the norms established by law.
9. The right to health care. In accordance with the social policy of the state, the Constitution of the Russian Federation enshrines in Art. 41 that everyone has the right to health care and medical care. Medical assistance in state and municipal health care institutions is provided to citizens free of charge at the expense of the corresponding budget, insurance premiums, and other receipts.
The right to health care and medical care is regulated by the Federal Law of November 21, 2011 No. 323-FZ "On the Basics of Health Protection of Citizens in the Russian Federation" and other acts.
The Constitution is characterized by a broad, comprehensive approach to ensuring this human right. In the Russian Federation, federal programs for the protection and promotion of public health are financed, measures are being taken to develop state, municipal, private health systems, activities that promote human health, the development of physical culture and sports, environmental and sanitary-epidemiological well-being are encouraged.
Concealment by officials of facts and circumstances that pose a threat to life and health of people entails liability in accordance with federal law (Article 41).
10. The right to a healthy environment. This right is closely related to the right to health care. It is enshrined in Art. 42 of the Constitution; its essence lies in the fact that everyone has the right to a favorable environment, reliable information about its condition and to compensation for damage caused to his health or property by an environmental offense.
In detail, the implementation of this right is regulated by the Federal Law of January 10, 2002 No. 7-FZ "On Environmental Protection", as well as Federal Laws of April 24, 1995 No. 52-FZ "On the Animal World"; dated March 14, 1995 No. ЗЗ-ФЗ "On specially protected natural areas"; dated November 23, 1995 No. 174-FZ "On ecological expertise"; dated May 4, 1999 No. 96-FZ "On the protection of atmospheric air", etc.
11. The right to education. According to Art. 43 of the Constitution, everyone has the right to education. The availability and free of charge of preschool, basic general and secondary vocational education in state or municipal educational institutions and enterprises are guaranteed.
Everyone has the right, on a competitive basis, to receive a higher education free of charge at a state or municipal educational institution and at an enterprise.
Basic general education is compulsory in the Russian Federation. Parents or their substitutes ensure that children receive basic general education, including non-state education.
The Russian Federation sets federal state educational standards and supports various forms of education and self-education.
The basic principles of the organization and functioning of the education system are established by the Federal Law of December 29, 2012 No. 273-FZ "On Education in the Russian Federation" and other acts.
12. Freedom of creativity. In the Russian Federation, according to Art. 44 of the Constitution, every person is guaranteed freedom of literary, artistic, scientific, technical and other types of creativity and teaching. Intellectual property is protected by law.
All citizens have the right to participate in the cultural life of the country, to use cultural institutions, and to have access to cultural values.
Each person is obliged to take care of the preservation of the historical and cultural heritage, to protect the monuments of history and culture.
Guarantees for the implementation of these constitutional rights and freedoms are enshrined in the Fundamentals of the Legislation of the Russian Federation on Culture of October 9, 1992 No. 3612-1, Federal Law of December 18, 2006 No. 231-FZ "On the Enactment of Part Four of the Civil Code of the Russian Federation" and etc.
