The assistant
of Jurisprudence Chair, Baiyr-oll Evgeniya
Amur
State University (Birobidzhan Branch), Russia
Judicial
protection of the rights of minors
Every
citizen of the Russian Federation shall be guaranteed judicial protection of
his rights and freedoms (Article 46 of the Constitution of the Russian
Federation). This provision applies to all citizens, irrespective of their age
and it was enshrined in the current legislation. According to Articles 1, 8, 56
under the Family Code of the Russian Federation, Article 11 under the Civil
Code the judicial protection of civil and family rights and interests of a
child is the primary form of jurisdictional protection.
To
the means of judicial protection of the rights of a child should be attributed
the following: a claim (application, appeal), judicial resolution (judgment,
default judgment, writ, on approval of the amicable agreement), cassation and
supervisory complaints, application for review of a default judgment,
application for review of a case under new circumstances, the tutorship and
guardianship authorities’ participation in disputes connected with upbringing
of children, a child’s opinion in the settlement of the dispute. Types of
remedies are determined by the nature of the legal relationship, the stated
requirement, the legal status of a child, the order of appeal and content of
judicial decisions and other conditions.
So,
depending on the nature of the legal relationship, a claim, application and
complaint can be highlighted. A statement of a claim is filed in case there is
a dispute on the right. A statement of a claim is a means of realization of the
right to judicial protection and using of the method of judicial protection.
As
the civil procedural legal capacity occurs with age, and also form the time of
be legally emancipated, or from the date of marriage until the age of 18 years,
a child cannot commence a charge (claim, complaint). His parents (persons
substituting them), the Prosecutor, the tutorship or guardianship agency
possess this right. These persons have all the procedural rights and duties
stipulated by Civil Procedural Code of the Russian Federation.
However,
the child may apply to the court with a charge application, complain)
independently at the age of 14 years while the violation of his/her rights and
legitimate interests, including the failure or improper performance of the
parents (one of them) responsibilities for the upbringing, education or abuse
their parental rights (Article 56 under the Family Code of the RF), as well as
with the claim about the cancellation of adoption (Article 142 of the Civil
Code of the RF)and with the requirement to declare of being emancipated (Article
27 of the Civil Code of the RF). We should understand that a child in this case
does not only get the right to apply to the court with a lawsuit (claim,
complaint), but all other civil procedural rights and obligations: to get
acquainted with materials of cases, make notes from them, make copies,
challenge objections, submit evidence, participate in research evidence, submit
petitions, etc.
The
right of a child to express his opinion while discussing any point which
touches his interests and be heard while judicial proceedings (Article 57 of
the Civil Code of the RF) should be recognized as a means of judicial
protection. It should be noted that the views of a child aged 10 years must be
taken into account. Only when it is contrary to the interests of a child, the
court may not take into account his opinion.
Judicial
remedies, as has already been noted, are court orders which differ in the way
of appeal, content and subjects of a resolution, judgments by default,
resolution of cassation and supervisory instances, resolution on amicable
agreement. These procedural documents are combined because a way of protection
applied by the court to restore disturbed (disputed) civil and family rights of
a child is shown there. They are as a tool that eliminates the obstacles in the
implementation of the rights of the child. Among the judicial resolutions the
decision of the court takes a special place. In the legal literature a court
decision is seen as an act of judicial authority, as a resolution and as a
procedural document.
The
court decision has special requirements. It should be legal and reasonable,
fair, clear and specific.
Disabled
adult children also have the right to alimony according to Article 85 of the
Family Law of the Russian Federation. In order to implement this right parents
have to support their disabled adult children who need help.
Sick
adult children’s disability may be related to health state, for example, with
disability, including disability from birth, as well as with full-time
education in educational institutions of all types irrespective of their legal
form, including foreign educational institutions located outside the territory
of the Russian Federation, if the direction of the training was in accordance
with the international treaties of the Russian Federation except educational
institutions of further education, until they finish such studying, but not
longer than until they reach the age of 23 years. Disabled can be accepted and
others in accordance with the legislation of Russia.
Needs
in the help are one of conditions of occurrence of the right of invalid full
age children on receiving the alimony from parents. The size of a living wage
which is defined by the legislation, allows establishing some reference points
in definition of a degree of needs of the specific person. So, if the invalid
full age child does not possess the means necessary for purchase of the minimal
set of food stuffs, nonfoods and the services necessary for keeping his health
and providence of his ability to live, in this case, undoubtedly, he may be
recognized as requiring in the help. The information on size of a living wage
is published quarterly in official publications of the Government of the
Russian Federation and in official publications of enforcement authorities of
entities of the Russian Federation.
It
is useful to pay attention to the fact that occurrence of the right to be
supported by parents does not depend on, whether parents have enough means or
not (Article 85 of the Family Code of the Russian Federation). Between the
named persons the agreement on payment of the alimony can be concluded. In case
of absence of such an agreement the requirement about receiving maintenance is
maybe declared in court.
Invalid
full age children requiring the help can sue claims to get the alimony
independently. If they are recognized to be legally incapable their claims can
be sued by their lawful representatives.
In
cases of absence of the agreement on payment the alimony the size of it is
defined by the court. It must be paid monthly but depending on the economic and
family conditions and other deserving attention interests of parties (Item 2,
Article 85 of the Family Code of the Russian Federation). The economic
conditions are fixed according to the size of the average income of the family.
For
an objective assessment of the economic conditions in this situation it is
important to establish whether the adult disabled children in need of
assistance with claims to alimony from their parents, their own able-bodied
adult children or spouses who are required to support them by law. It must be
ascertained whether there are dependents in the parties to the dispute. If a
disabled adult child is actually married, the court has the right to refuse him
to get alimony from his parents.
In
case of vocational rehabilitation or stopping to be in need of adult children,
parents who pay money for their maintenance under a court order may apply to
the court for termination of such payments. Court rehabilitation or stopping of
being in need of alimony recipient are grounds for the termination of alimony
payments (Item 2, Article 120 of the Family Code of the Russian Federation).
A
form of alimony obligations of parents is their participation in additional
expenses for the children. This participation can be concluded.
In
case of the absence of an agreement and under exceptional circumstances
(serious illness, injury of minors or incapacitated adults and children in
need) every parent may be held to participate in additional costs caused by
these circumstances by the court (Article 86 of the Family Code of the Russian
Federation). Parties in this relation are the parents and their minor children
or disabled adult children who need help.
The order of the participation of parents in additional costs
and the amount of these expenses are determined by the court proceeding from
the economic and family conditions of the parents and children and interests
deserving attention in the stable sum which is paid monthly.
The court may oblige the parents to participate in actual
expenses and in additional expenses which may be in the future.
Financial conditions can be measured as the level of
economic well-being that allows (or prevents) bear the additional costs caused
by the exceptional circumstances.
Currently,
Russia is working to establish a new and specialized judicial and legal system
for the protection of minors, which is expected to be provided by both public
bodies engaged in juvenile justice, and non-governmental sectors, controlling
correction and rehabilitation of minors, social protection of the family and
children's rights.
The aim of singling out the juvenile justice from the common
system of law enforcement authorities is a necessity to follow a special order
of working with juveniles which ensure additional guarantees of the rights of
this category of persons.
This will be a juvenile justice system in accordance with
the conditions of life of the child and the parents. In such cases, social
workers and specialists-psychologists should be involved.
The
idea of a juvenile justice system in various forms is implemented in a large
number of countries. In some countries, juvenile justice is a part of the
juvenile system authorities and public organizations concerned with family and
children's rights in the broadest sense. In some cases, the priority of
interests of a child leads to the opposition of interests of the state
institute of the family that causes a sharp controversy in the society and an
ambiguous assessment of juvenile justice in general. The principles of juvenile
justice in Russia was first legislated in 1995, by the Presidential Decree (Mr.
Boris N. Yeltsin) No 942 dated from 14.09.1995 of the Russian Federation, who
approved “The national plan of actions for children’s interests”, which
included measures to strengthen the legal protection of children stipulates the
creation of a juvenile justice system.
The
federal law “On basic guarantees of the rights of a child in the Russian
Federation” was adopted in 1998, which introduced the concept “children in a
difficult life situation”. It included: children living in low-income families;
children with deviations, and children whose life activity is objectively
broken as a result of prevailing circumstances and who cannot overcome these circumstances
by themselves or with the help of their family.
The
turning point in the formation of the system of the juvenile justice in Russia
was the decision of the plenum of the Supreme Court of the Russian Federation
dated from February 14, 2000 No 7 “On judicial practice in cases concerning
crimes committed by juveniles”, in which courts are recommended to apply the
provisions of article 76 of the Criminal Code for juveniles, which provides
“relief from criminal responsibility in connection with reconciliation with
victims”.
The chapter 22 of the Family Code of the Russian Federation
adopted in 2008 provides exemption of children from the families, “which are in
a difficult life situation”, recognizing them left without parental care, and
their subsequent placement in special institutions for living in new families.
Article 156 of the Criminal Code of the Russian Federation
“On failure to carry out the obligations a minor’s upbringing” holds citizens
criminally responsible (up to three years of imprisonment) for non-execution of
responsibilities for the upbringing of a minor, cruel treatment. In fact this
article prohibits the practice of home punishment.
Some laws suggest developing an idea of a juvenile justice
system to the establishment of juvenile criminal courts, civil courts, a
special system of the juvenile punishment, solving of social problems connected
with minors deprived of parental care, including in cases of deprivation of
parental rights of the parents.
In some cases, empowering of social services is provided,
which in fact are delegated to control parents and the execution of their
parental duties, including children’s appeals.