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2LEGAL ASPECTS OF VIOLATION OF EQUALITY OF RIGHTS AND FREEDOMS OF MAN AND CITIZEN IN MODERN RUSSIAN CRIMINAL LAW
Abstract
The present study legal analysis of the legal aspects of violation of the RA-equality of the rights and freedoms of man and citizen in modern Russian criminal law, which is currently, despite the urgency of the problem, little studied in the direction from the point of view of the theory and from the practical point of view.
Keywords
human rights, criminal law, violation of equality of rights and freedoms of the individual in modern Russian criminal law
AUTHORS
Andrey Andreevich Tumanov
PhD, Associate Professor, Murmansk State University of the Arctic, Murmansk, Russia.
E-mail: sir.tumanov2015@yandex.ru
Tatyana Vitalyevna Kapelko
PhD, Associate Professor, Murmansk State University of the Arctic", Murmansk, Russia.
E-mail: kapelko@yandex.ru
Introduction.
The urgency of the problem. During the research, we focused on the theoretical and practical challenge: to interpret and to make recommendations on the application of standards of the Russian criminal law in the protection of equal rights and freedoms of man and citizen, which are currently often are declarative and loosely applied in practice, due to lack of proper attention to this issue from the officials, authorsed to interpretation of the law.
Materials and Methods.
The main methods of the research was the analysis and synthesis undertaken with the consideration of norms of different branches of Russian law with the aim of solving problems. In the study, were obtained the following results.
Results.
Discrimination under article 136 of the criminal code refers to the violation of rights, freedoms and legitimate interests of man and citizen depending on sex, race, nationality, language, origin, property and official status, place of residence, attitude to religion, convictions, belonging to public associations or any social group, committed by a person using his official position.
The object of the crime is the relationship, first established by law in relation to the inalienable rights and freedoms of man and citizen, and rights and freedoms, settion of the special rules of various branches of Russian law.
The prohibition of discrimination is initially installed and secured by international law. For example, it is provided by article 14 of the European Convention for the protection of the rights and freedoms of man and the foundations of those freedoms of 4 November 1950 [1]. The same prohibition guaranteeing protection of the rights and freedoms of the individual, and is established by the Russian legislation (the Constitution of the Russian Federation, work and Family a codec themselves, other legal acts). Earlier similar provisions were enshrined in the universal Declaration of human rights (1948) [2].
According to article 19 of the Constitution, the state guarantees equality of rights and freedoms of man and citizen, regardless of sex, race, nationality, language, origin, property and official status, place of residence, attitude to religion, convictions, belonging to public associations and other circumstances. Prohibits any form of restriction of the rights of citizens on social, racial, national, linguistic or religious-of nadleznosti. Man and woman have equal rights and freedoms and equal opportunities for their reaverage sales. In addition, one of the fundamental constitutional principles is the equality of citizens before the law and the courts [3].
The objective side of the crime form the actions (inactivity) expressed in discrimination (violation) of rights, freedoms and legitimate interests of man and citizen depending on race, national origin, gender, language, etc. an Example would be dismissal on the grounds of belonging to a certain political party or social group, the denial of admission to school on grounds of nationality, religion, etc.
Types of violations can be diverse and depend on the nature and violate the freedom, rights, legitimate interests, etc., but it seems that all of them can be combined in the concept of handicapped in improving implementation of existing rights, etc.
Violation of equality of citizens in some cases may appear also in humiliation of honor and dignity associated with belonging to a particular race, religion or belief. However, in cases where the actions of the perpetrator are associated with the incitement of national, racial or religious hatred, responsibility for them should come under a special norm - article 282 of the criminal code [4].
The violation of the rights, freedoms and legitimate interests of man and citizen depending on other circumstances or on other grounds not provided for in the disposition of this article, the composition of the crime does not form.
As well as the required elements of the crime must be present injury, represents a specific danger to the public.
In addition, the number of legal acts directly points to circumstances which cannot be considered as discrimination. For example, in the article. 3 of the Labour code expressly States that not constitute discrimination establishing differences, exceptions, preferences and restrictions of the rights of workers which are defined peculiar to this type of labor requirements established by Federal law or due to the special care of the state of the persons requiring enhanced social and legal protection (e.g. young workers), or installed in accordance with the law on legal status of foreign citizens in the Russian Federation to ensure national security maintain optimal balance of labor resources, promote priority employment of Russian citizens and to solve other problems internal and foreign policy [5].
The composition of this crime is formal. It is considered ended from the moment of implementation of the action restricting equality on the grounds specified in the law, regardless of the consequences occurring. Acts can be committed, as in the form of the action, and the bar pulled out of work damage.
As a practical example consider acts can result in cases of failures, or Vice versa, the protective action in admission or employment, enrolling or from Chislennye of educational institutions, the cases related to the conclusion or failure to conclude an SDE-Lok, housing, social services, medical care, etc.
Also, discrimination can manifest itself in the sphere of labor relations, for example, in cases of the transfer to the lower or lower-paid position, refusal to provide turn-tion vacation, etc. actions in cases where they were due to professional or personal qualities of the victims, and circumstances, listed in the disposition of the article.
The subjective party the crime is characterised by fault in the form of direct intent. For the characterization of an act the motive and purpose do not matter, however, they may be taken into account by the court when sentencing.
The subject of the crime - a sane natural person who has attained 16 years of age. Note that previously, in the old edition of the criminal code was provided in part 2 of this article establishing liability for the same act committed by a person using his official position. Currently, the abuse of officials of bodies of state power or local self-government, violating the equality of citizens, classified under articles 285 or 286 of the criminal code.
Discussions.
Previously, such problems in his works such researchers of the Russian criminal law, as Professor L. D. Gaukhman [6], Professor V. S. Komissarov [7], however, in their is-the studies they betrayed little consideration of aspects such as a comprehensive analysis of the provisions of the criminal law, together with norms of other branches of Russian legislation, the emphasis in the research.
Conclusion.
In conclusion, I would like to note that, unfortunately, in the current judicial practice there are very few criminal cases in this category, is over the imposition of blame-tive sentence. This is largely due to fear and indecision of the authorities of the preliminary investigation and trial in the application in practice, the provisions of this article of the criminal code. With the purpose to make progress in this area was conducted presents a comparative study and indicated the results.
Recommendations.
As recommendations, I would like to draw the attention of representatives of Russian power structures and justice at the practical conclusions given in this study and recommend to not be afraid to apply them in practice.
REFERENCES
1. Convention for the protection of human rights and fundamental freedoms, ETS N 005 [Text] : [ Rome 04.11.1950 g.: Rev. and extra from 11.05.1994 G.] // collected legislation of the Russian Federation. -2001. - No. 2. - St. 163.
2. The universal Declaration of human rights [Text] : [adopted by resolution 217 A (III) of the General As-of the Assembly of the United Nations on 10 December 1948 ] // the Russian newspaper. - 1995. - No. 11. - S. 10.
3. The Constitution of the Russian Federation [Text] : [adopted by popular vote December 12. 1993 : as of 30 Dec. 2008] // collected legislation of the Russian Federation. - 2009. - No. 4. - St. 445.
4. Criminal code of the Russian Federation [Text] : Feder. the law : [adopted by the State. The Duma on 24 may 1996, № 63-FZ of 13.06.1996 G.] : as amended by Feder. law 13.07.2015 g. / / meeting of the legislation of the Russian Federation. - 1996. - No. 25. - St. 2954.
5. The labour code of the Russian Federation [Text] : Feder. the law : [adopted by the State. Duma on December 21. 2001 No. 197-FZ of 30.12.2001 g.]: ed Feder. law of 05.10.2015, / / collected legislation of the Russian Federation. - 2002. - No. 1. - St. 3.
6. Criminal law. Special part : Textbook / Under the editorship of Professor L. D. Gauhman and Professor S. V. Maksimova. - 2nd edition, revised. and add. - M. : Eksmo, 2005. - 704 p.
7. Russian criminal law. Special part : Textbook / Under the editorship of Professor V. S. Komissarov. -SPb. : Peter Press, 2008. - 720 p.
