Law/8.
Constitutional law
Ll.d.,
professor Ibrayeva A.S., Almassova Sh.B., Nurdauletov A.D.
Al-farabi Kazakh national university,Kazakhstan
Human rights and freedoms in a legal state: formulation of the question.
Annotation.
Human rights is a
difficult, multidimensional phenomenon. They are fixed in the Constitution of
the Republic of Kazakhstan and international treaties ratified in our country.
So, the basic human rights - these are the rights and freedoms that are
essential for the characteristics of the legal status of the individual in
society. For Republic of Kazakhstan there is one of the main tasks is
providing these rights.
Keywords: law, ensuring law, international treaties and
human rights legislation.
The development of
ideas and doctrines of the legal statehood is inseparable from the formation of
ideas about human rights and freedoms which, ultimately, it became the central
element which around and in whose name the developing and organizing principles
of the rule of law.
The Concept of
Legal Policy of Kazakhstan 2010-2020 emphasizes: "The construction of a
legal state in Kazakhstan requires further development of specialized
institutions related to the protection of the rights and freedoms of citizens.
An important mechanism in the system of protection of the rights and freedoms
of man and citizen was the institution of the Commissioner for Human Rights.
The creation of the state human rights institution was a major step to deepen
democracy in Kazakhstan.
Experience
shows that it is necessary to consider enhancing the effectiveness of this
institution. The leading role in the system of human rights institutions play a
advocacy, which is the core of the system of providing legal assistance to
citizens. Implementation of the citizens of the constitutional right to
qualified legal assistance is a condition and guarantee of access to justice. Mechanisms of realization of
this right need to be improved. The introduction of jury trials, the
transfer to courts authorization of arrest had a positive impact on the
role of the legal profession. However, the procedural rights of a lawyer as an
active participant in the criminal process requires effective legal mechanisms
for implementation. Improve the system itself requires the provision of legal
aid. First of all must be improve the system of providing legal assistance to
low-income " [1].
Human rights is a
complex, multidimensional phenomenon. In the formation of Human Rights and
Freedoms has played a huge role the doctrine of natural rights, which are
independent of discretion and arbitrariness of state power. The purpose of
natural law doctrine - to limit the claims of the state to decide on the scope
of rights and freedoms, regardless of the need for the normal life of an
individual set of rights.
Natural
law theory is opposed to the positivist approach to nature of human rights.
That human rights, their scope and content determined by the state, which
"gives" them man. The constitutional practice of developed countries
to a certain extent withdrew the opposition natural law and positivist
approaches to human rights on the basis of the constitutional consolidation of
fundamental rights and freedoms.
Depending on the
time of the declaration of various human rights and freedoms, many scientists
divide them into three generations. The first group includes civil and
political rights, which are referred to as "negative." The second
attribute of socio-economic rights, which are called "positive",
because they require specific action of the state. This division of human
rights in the "positive" and "negative" can be accepted
only conditionally.
By the third
generation, many scientists attribute the collective or "solidarity"
rights. Other authors refer to this generation, mainly the "new" law,
ie those that have been declared by various governmental and non-governmental
organizations or individual researchers in the years after the adoption of the
Universal Declaration and the International Covenants on Human Rights.
Differences human
right to "positive" and "negative", many authors have
traditionally highlighted the civil and political rights, emphasizing the
crucial importance of personal freedoms. Some include social and economic
rights to the so-called imaginary rights and argue that the provision of these
rights can not be without prejudice to the civil and political rights and
freedoms of many citizens.
In recent years, an
increasing recognition of the point of view that the so-called collective or
solidarity rights belong to peoples and nations and it should be classified as
a right of peoples [2-3].
Some of them have
already enshrined in international instruments, others require development and
subsequent legal registration. For example, an American professor L. Son
writes: "International law recognizes not only the inalienable rights of
individuals, but also some collective rights, which are implemented jointly by
individuals, united in large groups of people, including the people and the
nation. These rights are human rights ... " [4,c. 94-95].
International
agreements on human rights, should be divided into three groups. The first
group includes such international instruments as the Universal Declaration of
Human Rights, the Covenants on Human Rights et al., which contains principles
and norms relating to human rights generally in conditions of peace. The second
includes the international conventions on protection of human rights during
armed conflicts. These include the
provisions of the Hague Conventions of 1899 and 1907 respecting the Laws and
Customs of War, as well as four 1949 Geneva Conventions on the protection of
war victims and the Additional Protocols thereto, adopted in 1977.
The third group includes
international documents, which regulated criminal liability for violation of
human rights, both in peacetime and during armed conflicts. This group includes
the Nuremberg Charter and Judgment of the International Military Tribunal at
Nuremberg and Tokyo. It also includes
Convention about the prevention of genocide and punishment for it, the
Convention on the non-applicability of statutory limitations to war crimes and
crimes against humanity, the Convention on the suppression and punishment of
the crime of Apartheid for him and others.
Basic human rights
are the rights and freedoms that are essential for the characteristics of
the legal status of the individual in society.
In the present
conditions for fundamental human rights, in our opinion, it is understood the
rights contained in the constitution of the state and international legal
instruments on human rights, in particular in the International Bill of Human
Rights, as well as the European Convention on Human Rights (1950), the European
Social Charter (1961). Selecting the
category of basic human rights does not mean other rights referring to the
"second-class" less significant, requiring less effort of the State
to enforce them.
The most important
foundation of all human rights and freedoms is the life. In turn, the
foundation of all human and civil rights is the right to life. The right to
life is not proclaimed, or provide to person by anyone, or to a certain extent.
Nature gave man this right, and it is an integral part. At its core, the right to life requires recognition
and respect on the part of all members of society, because it is a value which
recovery is impossible.
Ensuring the right
to life means that one should not and can not be deliberately or arbitrarily
infringe on a person's life. Often the perpetrators of violations of the right
to life is the state and society. The deprivation of life by the state occurs
by the death penalty. The death penalty is opposed to the idea of the dignity
of the person and itself notion of human rights. Human rights imply that the human person is higher
than that of state power. But, the fact of giving to the state the right to
kill people, even if it is bad, we put the state above the individual, thus
crossing out the idea, which is incorporated in the Universal declaration of
human rights and freedoms and the Constitution of the Republic of Kazakhstan.
In many states,
there are different positions to death. In the Republic of Kazakhstan since
2003 imposed a moratorium on the death penalty, we believe that the attitude
towards the death penalty is an indicator of the degree of humanism and justice
of society. Accordingly, in our country the right to life not only stated in
the Constitution but in various international treaties ratified by our republic. In international law
distinguish between individual and collective human rights. For example, trade
union rights and the right of peoples to self-determination - is a collective
right. Usually followed by the classification established by the Covenants on Human
Rights. There are economic rights, social, cultural, civil and political. Many
prefer the term personal rights, but we think it is wrong, because they mostly
personal, individual. What we call personal rights are civil rights.
In the circle of
participants in relevant international standards agreements are regional and
universal. Universal standards are recognized worldwide. They contain, in
particular, the Covenant on Civil and Political Rights. Regional standards
operate within a certain area (for example, the Protocol number 6 to the
European Convention on Human Rights on 28 April 1983).
Basic standards in
the field of civil and political rights enshrined in the Covenant on civil and
political rights, the Convention about prevention the genocide crime and
punishment for it , the Convention on the suppression of the ñrime of
apartheid and punishment for it, the Convention against torture and other
cruel, inhuman or degrading treatment or punishment, and several other acts.
In the Republic of
Kazakhstan in the basic law fixed the broad scope of the rights and freedoms of
man and citizen. Among them: the right to freedom of thought, conscience and
religion, the right to freedom of opinion and expression, which "includes
freedom to seek, receive and impart information and ideas through any media and
regardless of frontiers"; the human right to an acknowledged legal status,
regardless of its location (v. 6); equality of all people before the law, and
others.
All the norms of
the Constitution of the Republic of Kazakhstan, bilateral international
treaties (agreements) of Kazakhstan with other countries and other
international obligations of Kazakhstan in the sphere of human rights
consistent with generally accepted international standards.
In the process of
modernization of the constitutional institutions in the country particularly
important sequential improvement mechanism to ensure and implementation
the rights and freedoms of man and citizen.
International
agreements of the Republic of Kazakhstan with other countries are the
confirmation of Kazakhstan's commitment to following and observance of the
rights and freedoms of man and citizen.
The obvious fact
that aspirations of the Republic of Kazakhstan to achieve international
standards in the field of protection and respect for human rights and freedoms
is to join the international conventions concluded August 12, 1949: "On
the amelioration of the condition of the wounded and sick in armies in the
field", "On amelioration of the condition of the of wounded, sick and
shipwrecked members of armed forces at sea, "" On handling with
prisoner of war "," On protection of civilian population in time of
war. "
June 29 1998 The
Republic of Kazakhstan has also acceded to the International Convention
"On the elimination of all forms of racial discrimination" on march 7
1966, the Convention against torture and other cruel, inhuman or degrading
treatment or punishment on 10 December 1984, the Convention "On the
elimination all forms of discrimination against women "from 18 December
1979, Convention "On
prevention of the crime of genocide and punishment for it" in December
9,1948. December 9, 1998 The Republic of Kazakhstan became a member of another
international legal act - the Convention on the legal status of 1951.
Among the most
important initiatives in the field of human rights is possible to note regular
consultations between the Republic of Kazakhstan and the OSCE Human Dimension,
joint projects in the field of democratization, human rights, elections and
others. The next level out contacts of Kazakhstan with the Office for
Democratic Institutions and Human Rights Organization for Security and
cooperation in Europe (ODIHR / OSCE).
In connection with
this change in attitude and to the legal support of human rights. It is based
on the principles universally recognized by the international community in the
past to ignore the Soviet legal system. Among them, we pay special attention
such as the principle of the irrevocable and inalienable: the rights and
freedoms of the individual, the principle of limited restrictions on rights and
freedoms, the principle of mutual responsibility of the state and the
individual, the principle of priority of the rights and freedoms of the
individual, etc.
The Republic of
Kazakhstan is committed to the creation of the legal system, aimed at ensuring
the protection of human rights and freedoms and the relevant rules of
international law. It is the correct position that the separation of powers is
a guarantee of the rights and freedoms of the individual. Therefore, the
government should have some limits, that it is not right to violate. And these limits are
inalienable and inherent rights and freedoms. For Kazakhstan science is a
completely new provision, as in the Soviet period it was believed that the
rights and freedoms of the citizen gives state. Ultimately, it is for the
welfare and protection of inalienable human rights and freedoms and to create a
state.
List of references
1. Concept of legal
policy of the republic of Kazakhstan
for the period from
2010 to 2020 // Decree of the President of the Republic of Kazakhstan dated
august 24, 2009 ¹ 8582
2. Tuzmukhamedov
R.A. "Third-generatiof human rights" and the right of peoples // the
Soviet state and the right. - 1986. - ¹ 11. - P. 106-113.
3. Kartashkin
V.A. Human Rights and ideological struggle // the Soviet state and the right. -
1987. - ¹ 1. - P. 120-127.
4. The General
Conference of UNESCO. Twenty-fourth session. - Paris, 1987. - 105 p.