Right
/ 8. Constitutional law
associate professor, Cand.Jur.Sci., Guseva A.,
associate professor, Cand.Jur.Sci., Danilova V.
Penza state university, Russia
To
a question of structure constitutionally - a legal mechanism of protection of
the rights and freedoms of the person and the citizen in the Russian Federation
The question of structure of the mechanism of
protection of human rights and the citizen as a whole in jurisprudence remains
open, debatable. In relation to this or that constitutionally consolidated
right scientists the features of structure seem. For example, the
constitutional legal mechanism of protection of a constitutional law on freedom
of business activity represents the difficult constitutional and legal
phenomenon which is turning on interstate and international mechanisms (forms
and means of protection, etc.). The
special importance in its structure, from our point of view, is occupied by
system of law enforcement agencies, and also certain means, ways and protection
forms by means of which subjects of human rights activity carry out protection
of the violated constitutional right.
The central place in rather big arsenal of human rights links of the
considered mechanism is taken by judicial protection. In turn realization of the right to judicial protection is
provided by the constitutional guarantees as which it is necessary to
understand legal conditions, means and the ways provided by the basic law of
the country by means of which there is a restoration of the violated rights.
It is necessary to emphasize, agreeing with the points
of view of some scientists that the Constitution of the Russian Federation
doesn't exhaust all means and mechanisms of legal protection of the
person. There are the means defined and
other laws. But all of them exist, are
obliged to exist in the constitutional field, in the constitutional framework
[4.C.8].
That the structure of a constitutional legal mechanism
of protection of the rights and freedoms of the person and the citizen during a
certain period of development of the economic, legal, social, political
relations can undergo changes is remarkable also, possessing features inherent
in it. As confirmation of the told the institutes of ombudsmen created now
serve: The representative on human rights, the Representative by the rights of
the child Authorized on protection of the rights of businessmen, etc. In
particular, A.P. Aleksandrova was repeatedly pointed to distinctive feature of
protection of the economic rights. So, with it is emphasized that the state,
municipal and public control which has to be accompanied by sufficient
financing [3.C.11].
In structure of the studied mechanism it is possible
to allocate: the international and interstate rules of law regulating
protection of constitutional laws and freedoms of the person; object of
protection – constitutionally fixed constitutional laws and personal freedoms;
forms and subjects of protection of constitutional laws of the person, system
of the last form the government bodies allocated with constitutional legal
status; public associations and organizations; self-defense; international
legal mechanism of protection of constitutional laws and freedoms.
The regulatory
base of the mechanism of protection of constitutional laws is made by the
Constitution of the Russian Federation, the federal legislation, the
constitution (charter) of the subject of Federation, laws of subjects of
Federation, the charter and normative legal acts of local governments. Also
this system joins Resolutions of the Constitutional Court on interpretation of
provisions of the Basic law of our state, recognition of these or those
regulations not corresponding to it, resolutions of the constitutional
(authorized) vessels of subjects of Federation on interpretation of the constitution
(charter) of the subject of Federation, and also on recognition not
corresponding laws of the subject of the constitution (charter) of the subject
of Federation. Considering that the principles and norms of international law
are included in structure of legal system of the Russian Federation, it should
be noted that they also enter into set standardly – a legal basis of the
constitutional mechanism of protection of the rights and freedoms of the person
and the citizen. As an example we can specify the European Convention on
protection of human rights and fundamental freedoms of 1950 (further - the
Convention).
According to M.I. Abdullaev, the most effective
mechanism of protection of human rights is created in Europe [2. C.194]. It
concerns, first of all, such institute, as the European Economic Union created
in 1949 after which education, in 1950 in Rome the European convention on
protection of human rights and fundamental freedoms was signed. In Art. 19 the
Convention defined bodies of jurisdiction independent of the participating
states, it is the European Commission on Human Rights and the European Court on
human rights. The Convention consolidates the right of the citizen to address
in the first supranational judicial authority – the European Court on human
rights. However, all control mechanism of the Convention is based now on
opportunity to address in the European Court with the individual complaint by
which consideration it is actually checked as far as the respondent state at
national level fulfilled voluntary assumed liability on ensuring the rights and
freedoms of the person and the citizen. Besides, directed to the European Court
on human rights the individual complaint will be recognized unacceptable if the
applicant didn't settle internal remedies (p.1 Art. 35. Convention), i.e.
didn't make attempt to call the state for the performance of obligations,
following from the international treaty. This provision of the Convention, in
our opinion, plays a positive role in a constitutional legal mechanism of
protection of the rights and freedoms of the person and the citizen as demands
from the state at interstate level of considerable efforts on realization of
the rights and freedoms.
It should be noted, agreeing with A.M. Nikolaev that
the great value in this regard gets formation of the interstate rules of law
corresponding to provisions the Convention, and also right applications by
competent authorities of the government.
Emergence of the interstate law-enforcement practice based on the
European standards is obviously important.
In other words, constitutional and legal nature of implementation of the
Convention in the Russian Federation is urged to provide recognition,
observance and protection of the rights and freedoms of the person at the constitutional
level in a context of its provisions [5.C.19].
It is indisputable that international legal protection
it is the difficult system of elements making it having special value for the
interstate mechanism of protection of the rights and freedoms of the
person. In a general view it can be
defined, how the international cooperation of the states recognized by the
Constitution of the Russian Federation and acts of the Russian Federation by
recognition, establishment, protection and protection of fundamental human
rights with use of the international mechanisms [6.C.243] that is fully
applicable to protection of any of the constitutional laws fixed in the
legislation and freedoms.
Literature:
1. Constitution of the Russian Federation. It is accepted on December 12,
1993.
2. Abdullaev M. I. Human rights and
law: Historical and theoretical
aspects. – SPb.: Legal Press Center
publishing house, 2004. Page 194.
3. Aleksandrova A.P. Protection
of the social and economic rights and freedoms: general-theoretical analysis. Kazan, 2002. Page 9-12.
4. Zorkin V.D. Rossiya and its Constitution//Magazine of the Russian right.
2003 . No. 11. Page 8.
5.
Nikolaev A.M. European convention on
protection of human rights and fundamental freedoms. Realization constitutional
legal mechanism in the Russian Federation. // Law and right. 2011 . No. 8. Page 19.
6. Stremoukhov A.V. Legal protection of the person. – SPb. : Publishing
house of SPb state unitary enterprise, 2007. Page 243.