Право/8.Конституционное право.

Shaldybayeva D.D.

Academician Y.A. Buketov Karaganda State University,Kazakhstan

Legal rights of personality

Rights and freedoms of citizens according to declaration have to be provided in various spheres of public life: political, economic and personal. But before considering nature of these rights and freedoms we should to define concept of words “freedom” and “right”. In totalitarian, autocratic and other non-democratic modes of right and freedom of citizens are considerably limited or they are absent at all. Here connection of freedom and right as totalitarian “right” can deprive the person of freedom is most visually visible.

Rights, freedoms, duties, that is legal status of personality, divided on personal, political, economic or social.

All spheres of legal status in unity of rights and duties — the “freedom space” based on a freedom of choice and responsibility of personality in front of society and the fellow citizens [1]. Complete and real idea of rights and freedoms can’t be received, without considering them as a part of legal status of personality.

Firstly, this category has collective, universal character. It incorporates legal statuses: citizen: foreign citizen; stateless people; refugee; displaced person.

Secondly, this category reflects specific features of the person and real situation in system of the diverse public relations.

Thirdly, rights and freedoms, making a basis of legal status of the personality, can’t be realized without other its components: without the legal duties corresponding to rights, without legal responsibility in necessary cases, without legal guarantees, without legal capacity and capacity as the defining traits of strong-willed and conscious behavior of the person.

Fourthly, the category of legal status allows to see rights, freedoms, duties of personality in a complete, systemic form, gives the chance to carry out comparison of the statuses, opens ways of their further improvement.

Legal status of personality — legal status of the person reflecting an actual status in relationship with society and state. Legal status of personality in the most general view can be characterized as system of rights and duties, legislatively fixed with states in constitutions, international legal acts of human rights and others standard and legal acts. By G. V. Maltsev: “The system of rights and duties - core, the center of legal sphere, and here lies a key to the solution of the main legal problems” [2].

In modern legal literature there are views of scientists who accept concept “legal status of personality” in more profound and broadest aspect. By N. I. Matuzov and A.V. Malko: “Legal status is the difficult, collective category reflecting all complex of communications of person with society, the state and staff with following structure:

• legal norms;

• legal standing;

• basic rights and duties;

• legal interests;

• citizenship;

• legal responsibility;

• legal principles;

• legal relationship of general type” [3].

Classification of legal statuses of personality, first of all, is carried out on a coverage and structure of legal systems. There are general (international), constitutional (basic), industrial, patrimonial (special) and individual legal statuses of the personality.

General (international) legal status of personality includes freedoms, duties and guarantees developed by the international community and fixed in international legal documents. Its protection is provided by both the domestic legislation and international law.

Constitutional (basic) status of personality unites the main rights, freedoms, duties and their guarantees fixed in constitution. Its characteristic sign is stability which is caused by features of the most human life and assumes establishment in society of a normal law and order, the predictable and reasonable changes providing preservation of a genepool of the country, rates of production of material and cultural wealth, free development of personality. As any basis on which new qualities are formed, constitutional status has to possess stability, its existence has to last until the main public relations don’t change in a root and the majority.

Industrial status of personality consists of competences and other components mediated by separate or complex branch of legal system — civil, labor, administrative law, etc.

Patrimonial (special) status of personality reflects specifics of a legal status of separate categories of people who can have some additional subjective rights and duties: military personnel, pensioners, disabled people, etc.

Individual status characterizes features of position of the specific person depending on his age, sex, profession, participation in administration of state affairs, etc [4].

Legal status of the personality is considered as a generic term which acts as:

1) legal status of the citizen;

2) legal status of the foreigner;

3) legal status of the stateless person (apatride).

Legal status of the citizen is comprehensive. It means that the citizen possesses all completeness of rights and freedoms established in the legislation.

Right for life, personal advantage, for freedom and immunity, personal privacy, personal and family secret, judicial and other protection of the honor and a reputation, for secret of correspondence, telephone conversations, post, cable and other departures belongs to the personal rights and freedoms. Restriction of these rights is allowed only on the basis of the judgment made by independent court according to the law.

Law forbade collecting, storage, usage and distribution of information on private life of the person without its consent. Dwelling of the citizen is inviolable. Nobody has right to hang in the dwelling against the will of people living in it, except cases established by the law or on the basis of a judgment. For example, making search by open criminal case. Each citizen has right to define and specify the nationality. Nobody can be forced to definition and indication of the nationality.

Political rights of the citizen: right to choose and be elected in public authorities, a freedom of worship, religions, freedom of thought, word, press, freedom of obtaining information, right of stay at the state position, right of creation of the political organizations (parties, movements), right for carrying out demonstrations, meetings, pickets and others.

Political freedoms assume also political activity of citizens having impact on activity of government bodies, on public events.

Economic freedoms include right of a private property, that is right to own, use and dispose of any property, except forbidden by the law. Thus the owner has right to dispose of property as individually, and together with other people.

Nobody can be deprived of property, except as by a court decision. Citizens have right to be engaged in business activity, freely to dispose of the abilities to work, to choose a kind of activity and profession. Citizens also have right for social security in old age, education, medical care and others.

However, despite fixing of rights and freedoms of citizens in Constitution, other legislation, in practice there are a lot of cases when these rights and freedoms are broken by government bodies, officials, public and other organizations, certain citizens.

Therefore legislatively, as a rule, guarantees of ensuring rights and freedoms are fixed in Constitution. The main guarantee of realization of the granted rights and freedoms is protection in independent court, including in Constitutional court. Decisions and actions of bodies of the state, public and other organizations, citizens violating rights and freedoms of the person can be appealed in court which is obliged to consider the complaint and to solve business according to the law.

The importance in protection of rights and freedoms of citizens has not only declarative independence of court, but also his real independence in the solution of questions. Courts use the greatest independence at division of the authorities when courts represent independent judicial authority. It is necessary to consider essence of the elements making legal status — legal rights and duties.

Rights of personality is its social opportunities determined by economic living conditions of society and legislatively fixed by the state. Measure of freedom which is objectively possible for personality at a concrete historical stage of development of society is expressed in them. Within this formally consolidated freedom self-determination of personality is carried out, conditions of real use of the social benefits in various spheres of political, economic, social and cultural, and private life are established. Certainly, rights of personality are extremely diverse according to the contents, volume, ways of realization. However fixing of this or that subjective right in the legislation in the conditions of a socialist system means real possibility of the individual freely to use a certain benefit in borders and as it should be, designated in the law.

The state affirms rights of personality not randomly; set of right, their volume are always caused by the level of economic development of society. The legislator can affirm only such rights for which implementation social and economic and political prerequisites following from the real public relations were created.

Any person can’t exercise at the same time practically all subjective rights following from the law. Forms, ways and stages of realization of each subjective right are defined by its essence, mechanism of transfer to practical behavior of people, and also those real conditions which are provided in the law.

The state can’t and shouldn’t force citizens to use of rights. At the same time normal functioning of political system of socialism, improvement of the socialist public relations are impossible without active use of those broad rights and freedoms which follow from a being of a socialist system and make the integral element of socialist democracy. Proclaiming rights and personal freedoms, the state guarantees their implementation not only legal, but also economic, political, ideological, cultural means. As the person with his interests and requirements represents the main value of socialist society, eventually the social production, cultural and educational and ideological activity of the democratic state, all links of government and officials is subordinated to ensuring its rights and freedoms.

Assuming liabilities on ensuring rights of citizens, the state has right to demand from them lawful behavior which would correspond to the standards recorded in legal norms. Without organization and discipline, without coordination of behavior of citizens with the legal instructions expressing the state will it is impossible to solve the most important historical problems of the state. Therefore the state formulates the requirements to citizens in system of duties, establishes measures of legal responsibility for their non-performance. The state as the carrier of the political power has special mechanisms of ensuring rights of citizens and performance of duties by them.

Duty — both necessary, and possible behavior. Personality makes the choice not only in the sphere of legal requirements and instructions. The state specifies expedient, socially useful and necessary option of behavior in system of duties. However, as it was already noted, freedom of choice includes a set of factors and doesn’t become isolated within legal standards. Therefore the behavior which is based on other standard orientation. The personality can choose the norms contradicting the requirements concluded in duties.

So, the Citizen possesses a large number of rights and freedoms. Non-citizens, as a rule, can’t participate in vote when forming government bodies, be elected in bodies of the state, do military service, work in the Ministry of Internal Affairs, work in other law enforcement agencies. According to decisions of judicial authorities the citizens who made offenses can be deprived of some rights. For example, rights of freedom, participation in elections, etc.

Bibliography:

1. Общая теория государства и права. М.Н.Марченко. М. «Зерцало» 2008. Т-1.-C.245.

2. Мальцев Г.В. Права личности: юридическая норма и социальная действительность // Конституция СССР и правовое положение личности. - М., 1997. - С. 50.

3. Чистяков Н.М. Теория государства и права: учебное пособие / Н.М. Чистяков. - М.: КНОРУС, 2010. – C.237.

4. С.С.Алексеев — Государство и право, 2003г.- C.192.