Margatova A.
4th year student, "International Law"
Faculty of International
Relations
Al-Farabi Kazakh
National University
Scientific adviser:
Candidate of Law, associate professor Tussupova A.Zh.
Rights and liberties of man and citizen: methods of protection
Nowadays the understanding of some problems
while providing human rights, supremacy of law and freedoms of man as the basis
of law-based state is gradually forming in Kazakhstan.
The
constitution of the Republic of Kazakhstan 1995 has established not only the
underlying principle: “The man, his rights and liberties are higher value”, but
simultaneously settled the obligation of state to admit, adhere and protect
rights and freedoms. Recognition of rights and
liberties of man and citizen as foreground principle has become important and
significant condition for the legal and moral foundation of democracy, distinct
determination of the individual’s legal status in Kazakhstan. In accordance
with article 12 of the Constitution of the Republic of Kazakhstan, rights and
liberties of man and citizen are recognized and maintained in our country. They
are adherent, absolute and unalienable. They define the purview and application
of law and other regulations as well as the function of organs of government
and local authorities, provided by public justice. The significance of these
norms cannot be overestimated as far as they emphasize the priority of rights
and liberties of man compared to other values.
Meanwhile,
the level of democratic development of society is defined not only by formal
admission the priority of rights and liberties of man and citizen, including its
implementation into domestic law and proclamation of customary rules and
principles of international law in the field of human rights as a part of
national legal system. Efficient state legal mechanism of the safe-keeping and
protection of rights and liberties has to be created in a society which will
allow the individual to take advantage of already existing legal and
organizational procedures for the purpose of actual implementation of its
rights and liberties.
Constitutions of
democratic states provide the opportunity of a man to protect its rights and
liberties by all not prohibited by law means. Under “protection” of human
rights not only its protection against all possible violations is implicated
but also the creation of all necessary conditions for that the man could enjoy
its rights without any unlawful obstacles.
It is known that
a need in human rights mechanism is rising up while the rights are violated.
Besides the work of state’s organs on the protection of citizens’ rights, human
rights mechanism comprise the struggle for materialization rights and liberties
granted by the legislation.
Types of human
rights of a man are the following:
1) remedy from the organs of public authority;
2) citizens’ remedy from public associations;
3) self-protection of human rights, including:
-
resort to governmental bodies and
local authorities;
-
appeal of actions (inactivity) of
officials, breaking citizens’ rights;
-
resort to mass media and human
rights organizations, public associations;
-
public speaking of citizens in
defense of their rights;
-
resort to international bodies on
human rights.
In the legal
state one of the most efficient and wide-spread means of protection of rights
and liberties is judicial defense.
Constitutional
right on judicial defense of natives of the Republic of Kazakhstan as well as
of many foreign states includes two types of legal power. Firstly, material
content of this law (law of a compliant on compensation of damage or harmful
consequences, caused by offence or unlawful acts of governmental bodies or its
officials). Secondly, its procedural content (the right on lawsuit, on
individual and collective compliance).
In 2002 in the Republic of Kazakhstan a new state
institute was established- Commissioner for human rights, in international law
it is customary to define it as ombudsperson (ombudsman). In connection with
the increase of state’s penetration in social spheres of society’s life, the
growth of administrative establishment, the necessity of extra mechanisms has
appeared to provide the balance between a society and state itself. That has
given occasion to the creation of ombudsman institute in Kazakhstan.
Undoubtedly, there have always existed different institutes of the protection
of human rights and liberties. It should be mentioned that the significant
amount of national institutes on human rights and liberties’ protection are
presented by such organizations as follows:
1) Human Rights
Commission;
2) Ombudsmen;
3) Specialized
national institutes on the protection of attackable communities (children,
women etc.).
Fix in detail on the ombudsman institute. It first
emerged in human rights body system in 1809 in Sweden when the newly created
post of specialized parliament inspector for the legitimate activity of administration.
However peculiar title of this institute was developed in many countries. For
instance, «human rights commissioner» in Russian Federation and Kazakhstan,
«parliamentary human rights commissioner» in Great Britain, «parliamentary
mediator » in France and «people’s defender» in Spain [1]. Currently ombudsman
institute exists in more than 100 countries of the world. The principal reason
of this human rights institute appearance is that in the second part of XX
century earlier existing social-economical human rights mechanisms were not
sufficiently effective to release the new type of state- person conflicts.
Generally speaking, this human rights institute appeals to protect citizens
against incompetent work of administrative bodies, educe and analyze faulty
operations of government agencies, develop some recommendations with respect to
their human rights activity improvement. As it’s well known, human rights and
their protection are governing not only by domestic law but international law
as well. The right to appeal to interstate bodies emerges only in cases when
all intrastate human rights means of protection are depleted. Universal
declaration on human rights 1948 which is only of moral and politic nature
admits the right of every person to «efficient resumption in rights by
competent national courts» [2].
Developing this
provision, European commission on human rights and fundamental freedoms 1950
consolidates the right of every person to «fair trial in reasonable time by
independent and impartial court established on the legal basis» [3].
Accordingly in pursuant of national law all legally capable subjects
habituating on the territory of European Soviet states in course of depletion
of all opportunities of their rights protection are able to apply to European
court on human rights.
Moreover, one of
the most significant achievements in international regulation of human rights
is establishment and functioning of interstate protection mechanism. Currently
according to provisions of international treaties certain system of interstate
bodies has been settled to vest with international control of states’ activity
in respect of human rights. Such a control is provided at multiple levels. For
instance, central and subsidiary UN bodies are realized at universal level,
European Soviet and other European countries institutes – at regional level.
Some international human rights institutes have been created among the former
Soviet republics within the frame of Commonwealth of Independent States.
Thereby, every person
is to have an opportunity to freely select the means of his violated rights
protection. Meanwhile the state has to ensure the equal right of everyone
regardless of faith, race, and place of residence, age and sex to take
advantage of these protection means. Otherwise the tendency of the modern state
to democracy, legitimacy, freedom, equality, humanity, law-based state
expressed in constitutional norms and principles would remain only a
declaration of such intentions.
List of resources used:
1. http://study-5.ru/folder-kurs/sposoby_zaschity_prav_svobod_cheloveka_grazhdanina.htm