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14THE RIGHT TO HUMAN DIGNITY: PECULIARITIES OF CONTENT AND PROTECTION
Abstract
The problem of protection of the right to human dignity is actual at the present time, but definitions of the category of human dignity are different, contradictory and abstract. The purpose of the paper is to analyze and characterize the right to human dignity, its structure and place in the system of human rights. The leading research method is system-structural. The author studies doctrinal definitions of the category of human dignity, legal statements on human dignity in national legislation of different countries and international normative legal acts, and concludes that the considered category characterizes personal legal status. The right to human dignity is the basic personal right that has complex structure and includes other constitutional rights. The materials of the paper can be useful to scientists studying the constitutional law, to students studying law and masters of law.
Keywords
the right to human dignity, structure of a subjective legal right, grundnorm, personal legal status, constitutional rights, non-material value, discrimination
AUTHOR
Svetlana V. Orlova
Senior lecturer, History of State and Law sub-faculty, Law faculty Siberian Federal University. 4, Mayerchaka st., Krasnoyarsk, 660075, Russia.
E-mail: SvetlanaV.Orlova@gmail.com
Introduction
Human dignity is a specific category which can have different meant. S. Riley and G. Bos write, "The mercurial concept of human dignity features in ethical, legal, and political discourse as a foundational commitment to human value or human status." In the author's point of view "it is this potential to bridge different fields of regulation—human rights, bioethics, humanitarian law, equality law and others - that we might take to be the most important function of human dignity in international law." (Riley and Bos)
Ethical definition of human dignity includes two aspects. On the one hand, it means the value of human beings in contrast to nonhuman animals. (Riley and Bos) On the other hand, it requires respecting everybody. That is to say, "we are to respect each other not for our relative standing, our initial dignity, but given that and insofar as non-interference or support for beings that happen to have this standing is required by cosmic or divine principle." (Riley and Bos)
Also the category of human dignity is interdependent with personal characteristics. "This principle specifies what we should value IN the individual. As such, it specifies a type of dignity that comes closer to the inner significance view, which in turn may be, but does not necessarily require, an expression in terms of schemas that advance ideas of human elevation." (Riley and Bos)
Philosophical conception of human dignity has a long history. This category has been considered since ancient time. For example, "Confucian tradition should be understood in terms of dignity's achievement through virtuous conduct, rather than in terms that make it independent of one's character and conduct. (Luo, 2014; Riley and Bos) This would touch on the issue of universality, unconditionally, alienability and overridingness. In Confucian tradition, dignity (qua 'worth') can be seen as a universal human potential that we may fail to cultivate: it is therefore universal but not unconditional; it can also be self-alienated and overridden." (Riley and Bos)
According to Plato and Aristotle conception "human dignity is thus predicated on the actual use human beings make of their rational capacities", i. e. dignity is "a potential, lay within the nature of the human being as such, its actualization was seen as owed to contingent subjective achievements." (Dierksmeier, 2015)
Another conception of human dignity was formulated in Middle Ages by Thomas Aquinas. Dignity "encompassed every person, regardless of their worldly achievements" because "every man and every woman is created in the image of God." (Dierksmeier, 2015)
Later, the dignity of the human being was defined neither through comparisons with animal life, nor with God. Modern positions on dignity were based on the categories of self-definition, self-image and freedom. (Dierksmeier, 2015)
One of other definitions of the category of dignity was given in "Leviathan" by T. Hobbes. He writes, "Human worth (...) is special power or ability for something that he or she is worth, this special ability is usually called suitability or adaptability." (Hobbes, 1651:111; Vaisvila, 2009)
A. Vaisvila notes, "Philosophical literature summarizing the research on the topic in question basically advocates the ... conception of passive dignity: it defines human dignity as personal awareness of own social value, as the right to request respect from society based on human worth accepted by the society." (Filosofskaya entsiklopediya, 1962:58; Vaisvila, 2009)
The category of human dignity has also a political meant. First of all, human dignity is an internationally-recognized category. As S. Riley and Bos note, "There is credibility to an interstitial reading of human dignity that links international law, politics and morality in supporting a more individual-focused, less state-focused account of international relations. This, in turn, strengthens a link between human dignity and (moral and institutional) cosmopolitanism given that the value of individuals transcends state boundaries." (Riley and Bos)
No law contains definition of the category of human dignity. Different and contradictory definitions are formulated in legal theory. This fact entails unclearness of content of the right to human dignity and mechanism of its realization.
The purpose of the research is the analysis and characteristic of the right to human dignity in legal doctrine and practice.
The following tasks were set to achieve the purpose:
- to investigate national and international normative legal regulation of the right to human dignity;
- to view the legal conceptions on the considered right;
- to analyze structure of the right to human dignity;
- to define place and role of the considered right in the system of human and citizen rights.
The object of the research is law-making and law-enforcement practice aimed to recognize and protect the right to human dignity. The subject of the research is national and international normative legal acts, and legal theory. The major concepts used in this paper are "structure of a subjective legal right" and "personal constitutional legal status".
The structure of a subjective legal right was defined by E.A. Glushkova. In the author's point of view, structural elements of a subjective right are possibility for the subject to implement a right at his will by his own actions; presence of the corresponding obligation to a right; presence of the possibility to obtain protection by claims to competent bodies regarding violations of rights on the part of the person having this right. (Glushkova, 2015:87) Personal constitutional legal status means constitutional legal rights, freedoms and duties, citizenship, legal personality, legal guaranties of realization of rights, freedoms and duties, and principles of personal legal status. (Nevinskiy, 2000:20)
Methodological Framework
The methodological basis of the paper is the general methods such as historical, logical, analysis and synthesis, classification, and a number of private-scientific methods such as formal legal, comparative and method of typology. Historical method allows seeing development of the idea of human dignity in different periods. Logical method is used in order to consider realization the right to human dignity in social relations. Analysis and synthesis are used for identification of features of the right to human dignity as a basic human right, as a subjective right which is realized in different fields of social relations, and as a principle of state politics. Comparative method is used for consideration of normative legal recognition of the right to human dignity in national law of different states. Methods of typology and classification allow defining the main ways of legal recognition of the right to human dignity and mechanism of its protection, and formal legal method is used for analysis of concrete legal norms. The main approach to the research is a system-structural method that allows analyzing the structure of the right to human dignity and its place in the system of human rights.
Literature Review
The following sources of national law were studied: the Constitution of the Russian Federation (1993), the Constitution of the United States of America (1787), the Basic Law of Israel: Human Dignity and Liberty (1992), Arab Charter on Human Rights (2004), Cairo Declaration on Human Rights in Islam (1990), American Convention on Human Rights (1969), the Constitution of South Africa (1996), the Constitution of the Republic of Namibia (1990), the Constitution of Kenya (2010), the unanimous Declaration of the thirteen united States of America (1776), the Criminal Code Act of Australia (1995), the Criminal Code of Canada (1985), the Criminal Law of the People's Republic of China (1979), the United States Code, Australian Crimes Act (1914), Canadian Charter of Rights and Freedoms (1982), Australian Age Discrimination Act (2004), Disability Discrimination Act (1992), Racial Discrimination Act (1975), Sex Discrimination Act (1984), the Criminal Code of the Russian Federation (1996), the Civil Code of the Russian Federation (Part One 1994: Part Four 2006), the Criminal-Procedural Code of the Russian Federation (2001), the Criminal Code of the Republic of Armenia (2003), the Civil Procedural Code of the Russian Federation (2002), the Civil Code of Japan (1896), the Code Of Administrative Offences of the Russian Federation (2001), the Labor Code of the Russian Federation (2001), the Civil Code of the Socialist Republic of Vietnam (1995), the Civil Code of the Philippines (1949), the Civil Code of Czech (2012), and other normative legal acts.
International legal documents that were used for the research are Universal Declaration of Human Rights, European Social Charter, the Charter of Fundamental Rights of the European Union, International Covenant on Civil and Political Rights, the Helsinki Final Act, and other documents.
Theoretical basis of the paper are the works of Russian, American, Lithuanian, Australian, British, Netherlandish, and German scientists studying human dignity and corresponding right in its different aspects. In particular, S. Riley, G. Bos, and C. Dupré analyze meant of the category of dignity in legal context. A. Vaisvila overwrites human dignity and the right to dignity in terms of legal personalism. C. McCrudden studies human dignity and juridicial interpretation of human rights. C. Dierksmeier considers different conceptions on human dignity and historical evolution of such conceptions. T. Soutphommasane analyses problems of freedom, dignity and discrimination in multicultural society. J. Ober overwrites peculiarities of realization of the right to human dignity in democratic states. S. Bronitt considers comparative perspectives of the category of human dignity in the modern world. D. Kretzmer and E. Klein analyze tHE CONCEPT OF HUMAN DIGNITY IN HUMAN RIGHTS DISCOURSE. S.A. Drobyshevskiy and T.V. Protopopova study human dignity as a general principle and a human right.
Results
4.1. The right to human dignity in national legislation
There are different ways of recognizing the right to dignity in national legal systems of the world. For example, the Constitution of the Russian Federation (1993) contains the considered right as one of the basic human rights. According to Article 21(1) "Human dignity shall be protected by the State. Nothing may serve as a basis for its derogation."
The similar provisions are included in Israeli basic legislation. One of the Basic Laws is named "Human Dignity and Liberty" (1992). The purpose of the Basic Law is "to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state." The named Law is preserves and protects life, body, dignity, property, personal liberty, right to privacy and intimacy, and right to leave Israel and right of entry into Israel from abroad.
Article 28 of the Constitution of Kenya (2010) states, "Every person has inherent dignity and the right to have that dignity respected and protected." According to Article 57 "The State shall take measures to ensure the rights of older persons - (a) to fully participate in the affairs of society; (b) to pursue their personal development; (c) to live in dignity and respect and be free from abuse; and (d) to receive reasonable care and assistance from their family and the State."
Article 10 of Chapter 2 of the Constitution of South Africa (1996) states, "Everyone has inherent dignity and the right to have their dignity respected and protected." According to Article 8(1) of the Constitution of the Republic of Namibia states, "The dignity of all persons shall be inviolable."
Moreover, the human dignity may be entrenched in constitution as the supreme value and as general principle. This is another way of recognizing the right. In particular, Article 10(2) of the Constitution of Kenya (2010) states, "The national values and principles of governance include ... human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized." Also according to Article 19(2) "The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings." Article 20(4) states, "In interpreting the Bill of Rights, a court, tribunal or other authority shall promote - the values that underlie an open and democratic society based on human dignity, equality, equity and freedom."
Article 2 of the Constitution of the Russian Federation (1993) states, "Man, his rights and freedoms are the supreme value." This provision characterizes status of any person.
The similar provision is contained in the Constitution of South Africa (1996). According to Article 7(1) of Chapter 2 "This Bill of Rights ... enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom."
Preamble of the Constitution of the Republic of Namibia (1990) states, ".recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace," and also ".we the people of Namibia ... desire to promote amongst all of us the dignity of the individual and the unity and integrity of the Namibian nation among and in association with the nations of the world."
Also the respect for human dignity may be recognized in legislation as a principle of different branches of law. For example, according to Article 16 of the Civil Code of France (2013) "Legislation ensures the primacy of the person, prohibits any infringement of the latter's dignity and safeguards the respect of the human being from the outset of life. Article 2 of the Civ'l Code of Japan (1896) states, "This Code must be construed in accordance with honoring the dignity of individuals and the essential equality of both sexes." According to § 3 (2) of the Civil Code of Czech (2012) Private law is based mainly on the principle that everyone has the right to protect their life and health, as well as freedom, honor, dignity and privacy. Article 2 of the Labor Code of the Russian Federation (2001) states, "Proceeding from the generally accepted principles and norms of international law and pursuant to the Constitution of the Russian Federation, the main principles of the legal regulation of labor relations and other relations directly associated with them shall be ... ensuring the right to employees to protect their dignity in the period of their work." According to Article 1.6(3) of the Code of Administrative Offences of the Russian Federation (2001) "When taking administrative coercive measures, decisions or actions (failure to act) abasing human dignity shall not be allowed."
Thus, consideration of protection the right to human dignity as the general principle reflects the wide sense of this right. The right to human dignity in such sense is main right in the system of human rights and freedoms.
Furthermore, the right to human dignity may be considered as a subjective personal right in different fields of social relations, i. e. in a narrow sense. In particular, in Russia the category of human dignity is entrenched in the Civ'l Code, Criminal Code, Criminal-Procedural Code, Civil Procedural Code, and Labor Code.
Article 150 (1) of the Civil Code of the Russian Federation (Part One, 1994) states, "The life and health, the personal dignity and personal immunity, the honor and good name, the business reputation . and the other personal non-property rights and nonmaterial values, possessed by the citizen since his birth or by force of the law, shall be inalienable and nontransferable in any other way." According to Article 152 the citizen shall have the right to claim through the court that the information, discrediting his honor, dignity or business reputation be refuted, unless the person who has spread such information proves its correspondence to reality; by the demand of the interested persons, the citizen's honor and dignity shall also be liable to protection after his death.
The Criminal-Procedural Code of the Russian Federation (2001) protects human dignity of the participants in the criminal court proceedings. During the course of criminal court proceedings shall be prohibited the performance of actions and the adoption of decisions, degrading the honor of the participant in the criminal court proceedings, and treatment humiliating his human dignity or creating a threat to his life or health. No one of the participants in criminal court proceedings shall be subjected to violence or torture or to other kinds of cruel or humiliating treatment, degrading his human dignity (Art. 9). In obtaining the samples for a comparative study, the methods presenting a threat to the life and health of a person or humiliating his honor and dignity, shall not be applied (Art.
202 (2)). Conducting the judicial proceedings in camera shall be admissible on the ground of a court ruling or resolution, if ... an examination of the criminal cases on the offences of the sexual immunity and sexual freedom of the personality and on other crimes may lead to an indulgence of the information on the intimate aspects of life of the participants in the criminal court proceedings or of information humiliating their honor and dignity (Art. 241 (2)).
The Civil Code of the Socialist Republic of Vietnam (1995) states that an individual's honor, dignity and reputation shall be respected and shall be protected by law. No one may infringe on the honor, dignity and reputation of another person (Art. 33). Where a party participates in a civil transaction in order to avoid damage to life, health, honor, reputation, dignity, [it] shall have the right to request a court to declare such civil transaction to be invalid. (Art. 142 (1)).
The right to human dignity is entrenched in legislation as a subjective right in Australia where the Constitution does not contain the right to human dignity. But, as S. Bronitt notes, "the absence of a prescriptive positive right to human dignity in Australian (or indeed English) constitutional law does not mean that human dignity, as a legal value, is unprotected: there are countless examples where the importance of human dignity finds expression both in legislation but also in the judgments of our courts." (Bronitt, 2008:2) For example, an Act relating to Offences against the Commonwealth (1914) (Cth) in section 23Q states that a person in police custody must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment. (Bronitt, 2008:11) Also the Criminal Code Act of Australia (1995) defines "outranges upon personal dignity" as war-crimes (art. 268.58, art. 286.74).
Attention is given in Australia to protection of person against discrimination. Age Discrimination Act (2004), Disability Discrimination Act (1992), Racial Discrimination Act (1975), and Sex Discrimination Act (1984) are enforced in Australia. Such laws protect the right to human dignity too, because, if people are equal to each other, all of them have equal dignity.
The similar approach is realized in the USA. Analysis of the Constitution and the United States' Code shows that these documents tell nothing about the term of di gnity. But the idea of equality is expressed in preamble to the unanimous Declaration of the thirteen United States of America (1776): "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness."
Also Title 18 (Part I) of the noted Code contains the wide list of crimes against civil rights includes such activity as "conspiracy against rights" that means injuring, oppressing, threatening, or intimidating any person in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or prevention or hindering one's free exercise or enjoyment of any right or privilege so secured (§ 241); "deprivation of rights under color of law" that means deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States (§ 242); "discrimination against person wearing uniform of armed forces" (§ 244); "deprivation of relief benefits" that means deprivation or attempting to deprive any person of any employment, position, work, compensation, or other benefit provided for or made possible in whole or in part by any Act of Congress appropriating funds for work relief or relief purposes, on account of political affiliation, race, color, sex, religion, or national origin (§ 246); "damage to religious property; obstruction of persons in the free exercise of religious beliefs" that means, in particular, intentional defacing, damaging, or destroying any religious real property because of the race, color, or ethnic characteristics of any individual associated with that religious property, or attempting to do so (§ 247); "hate crime acts" that means
offenses involving actual or perceived race, color, religion, or national origin (§ 249). It seems to be evident that mentioned crimes break human dignity.
4.2. The structure of the right to human dignity and its place in the system of human rights
The structure of the right to human dignity is similar to structure of any subjective legal right. The first element includes possibility for the subject to implement a right at his will by his own actions. It includes right to self-identification i.e. indication personal gender, age, nation, religion, use of native language etc. Also this element includes right to self-actualization and self-expression.
The second element is presence of the corresponding obligation to the right. Such obligation can be understood in a narrow sense and a wide sense. In such sense it belongs to other persons and includes nonhumiliation the dignity. A person can require nondiscriminatory conduct from other people. Besides, this element includes possibility to pursue respect of others.
Corresponding obligation of a state includes making and protection living conditions that are necessary for dignified existence. Such conditions are guarantying equitable cost of labor for satisfaction of basic needs such as nutrition, clothes, housing, and also protection of family, maternity and childhood, guarantying safety, protection of enabling environment, respect of political rights and freedoms, making conditions for self-development.
It should be noted that the corresponding state obligations are important as well as the similar obligations of people. Such conclusion can be made as s result of analysis of legal practice in different countries. For example, the greatest form of offence against human dignity is making such conditions of human life that make one to commit suicide. Criminal codes of the most of states contain articles about punishment for incitement to suicide. Article 110 of the Criminal Code of the Russian Federation (1996) states, "Incitement of a person to commit or attempt to commit suicide by means of threats, cruel treatment of a person, or systematic denigration of the human dignity of the victim shall be punishable by restraint of liberty for a term of up to three years, or by compulsory labor for a term of up to five years, or by deprivation of liberty for the same term."
The similar statement is contained in the Criminal Code of the Republic of Armenia (2003): "Causing somebody to commit suicide or make an attempt at a suicide by indirect willfulness or by negligence, by means of threat, cruel treatment or regular humiliation of one's dignity is punished with imprisonment for the term of up to 3 years. The same act committed in relation to a person in financial or other dependence of the perpetrator, is punished with imprisonment for the term of up to 5 years."
The articles above provide for penalty for humiliation of one's dignity by other people, i. e. for breaking the corresponding obligation of somebody to respect human dignity of another human. At the same time, the World Health Organization forms the statistics of suicides, and notes, "75% of global suicides occur in low - and middle-income countries" (the official site of WHO, 2017), i. e. the standard of life can conduce to rising a number of suicides. Also the statistics shows that number of suicides grows in the periods of economical or political factors. J. Kitanaka writes, "There is an undeniable impact caused by the high suicide rate on social, political, and economic affairs in the country." (Targum, and Kitanaka, 2012)
The third element is presence of the possibility to obtain protection by claims to competent bodies regarding violations of rights on the part of the person having this right. The following fact should be taken into account. The right to human dignity can be determined by court as a constitutional principle or as a subjective right, and as an
independent right, or as a daughter-right (Barak, 2015). If a court recognizes human dignity as a right, the right is enforced, and if dignity is recognized as a principle, it is necessary to identify breaking a specific right. If the right is recognized as an independent, it can be protected separately from other rights. If it is recognized as a daughter-right of any another right such as the right to life or freedom (Barak, 2015), only an independent right is protectable.
Under Russian legislation the right to human dignity is independent, and it may be protected through three ways: under constitutional law when unconstitutional law is abrogated, under civil law when compensation for breaking the right is paid to person, or under administrative or criminal law when subjects who break the right are punished. For example, item 4 of the first part of Article 24 of the Criminal-Procedural Code of the Russian Federation states, that a criminal case cannot be instituted, and or instituted criminal case shall be subject to termination on the ground of death of the suspect or of the accused, with the exception of cases when the proceedings on the criminal case are necessary for the rehabilitation of the deceased. According to the first part of Article 254 the court shall terminate the criminal case in a court session if during the judicial proceedings are established the circumstances, pointed out in Items 3-6 of the first part, second part of Article 24. These provisions were ruled unconstitutional by the Constitutional Court of the Russian Federation inasmuch as the considered provisions allow terminating a criminal case on the ground of death of the suspect or of the accused without consent of his (her) immediate relatives because a fact of termination of a criminal case upon non-rehabilitating ground can humiliate human dignity of the suspect or of the accused. (Postanovlenie Konstitutsionnogo Suda RF, 2011)
The Code of Administrative Offences of the Russian Federation (2001) provides for responsibility for slander and insult. Slander is the dissemination of wittingly false data besmirching the honor and dignity of another person or assaulting the reputation thereof (Art. 5.60 (1)). Insult, that is, abasement of honor and dignity of another person demonstrated in an indecent manner (Art. 5.61 (1)).
Article 1100 of Part Two of the Civil Code of the Russian Federation (1996) states, "The moral damage shall be compensated regardless of the guilt of the inflictor of damage in cases where . damage has been inflicted by the spread of information denigrating the honor, dignity and business standing; in other cases provided for by the law."
According to Article 310 (3) of the Civil Code of the Socialist Republic of Vietnam (1995) "A person causing mental suffering to a person by infringing upon the life, health, honor, dignity [and] reputation of another person must provide monetary compensation to the injured person in addition to terminating the violating acts, making a public apology [and] effecting a public retraction." Also Article 609 states, "Anybody who intentionally or unintentionally infringes upon the life, health, honor, dignity, reputation, property, [or] other legal rights and interests of an individual, infringes upon the honor, reputation, [or] property of a juridical person or other subjects and thereby causes damage [and/or] injury, must compensate."
Article 26 of the Civil Code of the Philippines (1949) states, "Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: prying into the privacy of another's residence; meddling with or disturbing the private life or family relations of another; intriguing to cause another to be alienated from his friends; vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition."
At the same time, if the right to human dignity is considered in the wide sense, i. e. as the main right in the system of human rights, it includes different other rights. For
example, mentioned Article 26 of the Civil Code of the Philippines (1949) contains a list of acts that influence on human dignity negatively.
Also criminal codes of different states contain a chapter on crimes against human dignity. According to part XIX of the Penal Code of the United Kingdom of Great Britain (1983) libel is the crime against human dignity. The Criminal Code of Canada (1985) contains the part on "Offences against the person and reputation" that includes "defamatory libel" (sections 297-317) and "hate propaganda" (sections 318-320). Chapter 17 of the Criminal Code of the Russian Federation (1996) "Crimes against the freedom, honor, and dignity of the person" provides for penalty for abduction (Art. 126), illegal deprivation of liberty (Art. 127), human beings' trafficking (Art. 127.1), using slave labor (art. 127.2), illegal placement in a mental hospital (art. 128), and libel (Art. 128.1). The Criminal Law of the People's Republic of China (1979) contains the chapter on "Crimes of Infringing Upon the Rights of the Person and the Democratic Rights of Citizens" (Chapter IV) that includes such crimes as humiliation a woman by violence, coercion or other means, forcing, molesting or humiliation (Art. 237), openly insulting others using force or other methods or those fabricating stories to slander others (Art. 246), provoking ethnic hatred or discrimination (Art. 249), publishing materials that discriminate or insult minority nationalities (Art. 250). Also humiliation is aggravating circumstance when deprivation of person's freedom is committed (Art. 238). The Criminal Code of the Republic of Armenia (2003) contains chapter 17 "Crimes against human freedom, honor and dignity" that determines such crimes as kidnapping (Art. 131), trafficking (Art. 132), illegal deprivation of freedom (Art. 133), illegal placing or keeping in a psychiatry hospital (Art. 134), libel (Art. 135), insult (Art. 136), and threat to murder, to inflict heavy damage to one's health or to destroy property (Art. 137).
It is evident that the lists of crimes against dignity have different content, and it would be incorrect to say that such difference is imperfection of legislation. Different crimes against life, health, freedom, property, privacy etc. break the right to human dignity because any of them influences person's being negatively.
Moreover, some normative legal documents declare that the right to human dignity includes different other rights. For example, Article 24(1) of the Constitution of Kenya (2010) states, "A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose."
Thus, human dignity is the central category of the system of personal rights in any state irrespective of the way of its recognition in national legislation under the following reason. The right to dignity is universally recognized right entrenched in international legal documents. In particular, the category of human dignity and the corresponding right are interpreted in the wide sense in the Universal Declaration of Human Rights (1948). In particular, Preamble of the Declaration states, "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, ... Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person." The right to human dignity is considered as the general principle in these sentences. Furthermore, according to Article 22 "Everyone, as a member of society, has the right to social security and is entitled to realization,
through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality." This prov'sion means that the right to human dignity includes all other rights. The international principle of recognition of dignity as the supreme value is implemented through national constitutional law.
In contrast, at ancient time in many countries of the world some social groups had not any rights. For example, in Ancient Rome such social group was named "slaves". They had status of things and could be sold and bought. (Kostina, 2011)
Thus, human dignity is the supreme value, and it characterizes personal legal status. The corresponding right includes all other rights and, in particular, the subjective personal right to dignity as non-material value in separate fields of social relations. The right to dignity as non-material value in concrete social relations is protected under legislation of corresponding branches. At the same time, protection of any human or civil right is aimed to protect the right to human dignity as basic right and to protect human dignity as the supreme value.
Discussions
The category of human dignity is analyzed by authors in the past and at the present time. Different aspects of the right to human dignity are considered in theory and in practice.
5.1. The problems of legal interpretation of the category of human dignity
Legal interpretation of human dignity is scientific and practical problem for three causes. First, a lot of normative legal acts mention this category without its definition. In such situation definition of the category is formulated in practice or in doctrine. For example, A. Vaisvila writes, "Lithuanian laws in force do not define the concept of dignity. This function has been left for the competence of legal doctrine and legal practice. The Senate of Judges of the Supreme Court of Lithuania defined honor and dignity in their Ruling No. 1 of 15 May 1998 as "person's self-evaluation that is determined by society's evaluation." (Vaisvila, 2009)
Besides, C. McCrudden notes, "There are significant differences relating to the extent to which dignity should be regarded as related to national liberation and self-determination (Arab Charter on Human Rights (2004), Art. 2(3)), as an appropriate limit on freedom of speech (Cairo Declaration on Human Rights in Islam (1990), Art. 22), as grounding a basis for protecting honor and reputation (American Convention on Human Rights (1969), Art. 11(1)), as grounding individual duties to the community as well as rights (Protocol of Buenos Aires (1967), Art. 43(a)), as requiring the provision of socio-economic rights in general (or particular socio-economic rights such as workplace rights, or the right to property) (European Social Charter (1996), Art. 26), as related to the role of dignity in the context of rights of women (Cairo Declaration on Human Rights in Islam (1990), Art 6(a)), and as relevant to freedom of religion." (Cairo Declaration on Human Rights in Islam (1990), Art. 1(a)). (McCrudden, 2008)
The second cause making legal interpretation of human dignity difficult is the interdependence between the law and the morality in its content. C. McCrudden writes, "Some jurisdictions use dignity as the basis for (or another way of expressing) a comprehensive moral viewpoint, 'a whole moral world view', which seems distinctly different from region to region (Shultziner, 2003; McCrudden, 2008) In this sense, to speak of human dignity is a shorthand way of summing up how a complex, multi-faceted set of
relationships involving Man is, or should be, governed: relationships between man and man, man and God, man and animals, man and the natural environment, man and the universe. (McCrudden, 2008)
Mariusz Jablonski, as A. Vaisvila notes, "basically repeats a definition proposed by the Supreme Court of Poland: "(...) dignity is that field of personality that is specified by human being's understanding of own worth and waiting for respect from other human beings (...)."(Jablonski, 2001; McCrudden, 2008)
The third problem of legal definition of the right to dignity was noted by A. Vaisvila. As the author notes, "dignity has often been inseparable from the right to dignity, the right itself is not differentiated in the terms of suability and subjective right; dignity and its origin has been rarely linked to the cultural human activity. It strengthens the indetermination of the concepts of dignity and of the right to dignity and makes their application in practice more difficult." (Vaisvila, 2009)
As C. Dupre notes, "EU's charter of fundamental rights (2000) contains dignity's clearest textual definition in title 1, including the right to life (Art. 2), the right to physical and mental integrity (Art. 3), the prohibition of torture and inhuman or degrading treatment or punishment (Art. 4), and the prohibition of slavery, forced labor and human trafficking (Art. 5)." (Dupre, 2011) According to the Preamble of the International Covenant on Civil and Political Rights (1966) rights "derive from the inherent dignity of the human person" and whose animating principle is "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family [as] the foundation of freedom, justice and peace in the world." (Riley and Bos)
Russian law theorists S.A. Drobyshevskiy and T.V. Protopopova formulated one of the modern definitions of human dignity. In the authors' point of view, "Human dignity as complex and many-sided phenomenon is a person's self-esteem, one's moral and fair self-concept, aspiration for pursuing respect from other people, and necessity to respect them." (Drobyshevskiy and Protopopova, 2016:105)
5.2. The structure of the right to human dignity
A. Vaisvila overwrites two levels of human dignity: "Relating dignity to the cultural activity of a person, a possibility to distinguish two levels of human worth appears: 1) worth that originates from each person's recognition as a subject of law in general and that, as it has been mentioned, is the same to everyone because is acquired from the society without personal effort (performance of duties), and 2) individual social worth of a person that can be created by the person only through fulfillment of obligations in respect of one's neighbor which, following the logics of swap, commits other persons to reversible services". In the author's point of view "For the process of acquiring dignity it is important if, by fulfilling duties, the person acquires the proprietary right to the good that he or she has created by fulfilling duties and that would be by the right protected from other persons' infringement to gratuitously use or embezzle it". So, "The unity of rights and duties is a legal formula of human dignity." (Vaisvila, 2009)
As C. McCrudden notes, "Andrew Clapham has usefully suggested concern for human dignity has at least four aspects: (1) the prohibition of all types of inhuman treatment, humiliation, or degradation by one person over another; (2) the assurance of the possibility for individual choice and the conditions for 'each individual's self-fulfilment', autonomy, or self-realization; (3) the recognition that the protection of group identity and culture may be essential for the protection of personal dignity; (4) the creation of the necessary conditions for each individual to have their essential needs satisfied." (Clapham, 2006:545-546; McCrudden, 2008)
C. McCrudden also analyze the structure of the right to human dignity. In the author's opinion, human dignity has "a basic minimum content", and its content includes three elements. "The first is that every human being possesses an intrinsic worth, merely by being human. The second is that this intrinsic worth should be recognized and respected by others, and some forms of treatment by others are inconsistent with, or required by, respect for this intrinsic worth. The third element is "the relationship between the state and the individual. This is the claim that recognizing the intrinsic worth of the individual requires that the state should be seen to exist for the sake of the individual human being, and not vice versa (the limited-state claim)." (McCrudden, 2008)
5.3. Protection of the right to human dignity
C. McCrudden writes, "The concept of 'human dignity' plays an important role in the development of human rights adjudication, not in providing an agreed content to human rights but in contributing to particular methods of human rights interpretation and adjudication." (McCrudden, 2008) At the same time, the author considers the problem of enforcement of the right to dignity in different jurisdictions. For example, "In some jurisdictions, human dignity is recognized as a right enforceable by an individual in the same way as any other right. In others, human dignity is a principle which stands behind other individual rights but does not give rise to enforcement by an individual. In Germany, there is a continuing academic debate as to what particular status human dignity has in this respect, (Kretzmer, and Klein, 2002:145,147) although in that context the significance of the debate may be less than it appears, since 'in all cases before the Constitutional Court in which questions of human dignity arose the alleged violation of human dignity went along with alleged violations of other individual rights so that access to the Court never depended on the qualification of human dignity as an individual right." (Proceedings of the UniDem Seminar, Montpellier, 1998)
C. McCrudden writes, "This multi-faceted approach to the role of dignity is well captured in Dawood V. Minister of Home Affairs, a South African Constitutional Court decision. ... Dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labor." (McCrudden, 2008)
Protection of human dignity can be understood as protection against discrimination. J. Ober notes, "Nonhumiliation of human dignity is having respect as moral equal." (Ober, 2012:828) Dr. T. Soutphommasane, Race Discrimination Commissioner of Executive Council of Australian Jewry, writes, "The rationale of laws against ra cial vilification is basically the same: the law in a liberal democratic society must make an assurance that members will enjoy a right to equal dignity". Thus, if dignity must be equal, any discrimination is against dignity. Also he notes that human dignity can be understood as status and as treat. On the one hand, "as a social and legal status, it has to be established, upheld, maintained, and vindicated by society and the law, and this ... is something in which we are all required to play a part". On the other hand, "dignity is not only about status. It is also about treatment: to treat someone with dignity is to treat that person with the proper respect." (Soutphommasane, 2013)
5.4. The place of the right to human dignity in the system of human rights
The human dignity as a legal category can have different meant and wide content. It entails discussions about the role of the right to human dignity with reference other human rights and about its place in the system of legislation. This problem was considered by S. Riley and G. Bos.
On the one hand, "Human dignity could be conceived as a REGULATIVE IDEA, providing the trajectory of politics but not necessarily central to its practice. Slightly differently, human dignity could be treated as providing a conception of good politics and implying practical side-constraint within political systems. More directly, human dignity might be identified with the good, which would give human dignity a more clearly normative and perhaps perfectionist role." (Boylan 2004; Riley and Bos)
On the other hand, "the idea of human dignity seems an ideal candidate for a kind of Grundnorm or secondary rule in law: a norm giving validity to legal systems as a whole or a principle governing the application of all norms within a system. However, this is difficult to defend as anything other than a loose generalization. In principled terms, legal systems treat justice as their foundational norm and this means that consistency, rather than moral defensibility, guides adjudication. And, in practice, it is not at all clear how human dignity can or should function as a 'higher' norm. There is, in other words, something of a mismatch between the putative function of the concept and its actual potential." (Riley and Bos)
In A. Barak's point of view, the right to human dignity is a daughter-right of some other constitutional rights. For example, "in Canada human dignity could have been derived as a daughter-right of the right to life, liberty and security of the person," (Canadian Charter of Rights and Freedoms (1982), Art. 7; Barak, 2015) and "in the United States human dignity could have been derived as a daughter-right of the independent right to liberty." (the 14th Amendment of the US Constitution; Griswold v. Connecticut, 1965; Barak, 2015:141)
The opinion about importance of civilistic interpretation of this right is also correct. T.V. Protopopova truly notes that entrenching the right to human dignity in civil legislation is very important. (Protopopova, 2001)
As A. Vaisvila notes, "The right to dignity is nowadays accepted as "the highest human right", "the source of rights." (Segado, 2001:179; Vaisvila, 2009) Thus, the right to human dignity is "foundation legitimating and creating the system of human rights." (Vaisvila, 2009) Moreover, "The Helsinki Final Act 1975 says that human rights "derive from the inherent dignity of the human person", and "recognition of dignity (...), equal sovereign rights shall be foundation for freedom and justice." (Human Rights. Collection of regional international documents, 1993: 232; Vaisvila, 2009)
In contrast, "In slaveholding and feudal societies only the noble were taken as dignified; the right to dignity was not recognized for slaves and villains "born free and equal in dignity and rights" and "created by the same God"- the latter people were only granted a status of "talking labor instruments." (Vaisvila, 2009)
C. McCrudden writes that the analysis of legal texts shows "significant differences in the ways in which human dignity has been incorporated into positive law." In particular, "in many of the instruments, dignity is to be found in the preamble, whereas in others it is used to explicate particular rights. In some it is referred to as foundational in some sense; in others not. In some, human dignity is a right in itself (and in some systems, a particularly privileged right), whilst, in other jurisdictions, it is not a right but a general principle." (McCrudden, 2008)
The carried out analysis of literature showed that the level of study of the subject is incomplete. Nowadays there is no the generalizing research devoted to the characteristic of the structure of the right of human dignity, and its place as complex legal category.
Conclusion
The right to human dignity was considered as one of the basic principles of national and international system of human rights, and also it was analyzed as a subjective right in different fields of social relations.
The right to human dignity is specific right. On the one hand, human dignity belongs to a person. On the other hand, it characterizes universally recognized legal personal status. Corresponding principle is implemented through national legislation.
Recommendations
The materials of the paper can be useful to the scientists investigating the constitutional law, students studying law and masters of the right.
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