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.