Abstract work THE PROBLEM OF PROTECTION OF HUMAN RIGHTS AS THE MOST IMPORTANT DIRECTION OF THE JUDICIAL REFORM OF MODERN RUSSIA - Государство и право реферат
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Abstract work THE PROBLEM OF PROTECTION OF HUMAN RIGHTS AS THE MOST IMPORTANT DIRECTION OF THE JUDICIAL REFORM OF MODERN RUSSIA
Placing the problem of human rights on foreground of modern realization. The political rights in of the Islamic Republic Iran. The background principles of vital activity of the system of judicial authorities. The executive branch of the power in Iran.
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T he problem of protection of human rights as the most important direction of the judicial reform of modern Russia
Placing the problem of human rights on foreground of modern realization is the testimony of enormous transformations of the spiritual culture and morality. After disintegration of the USSR in Russia the idea of indissoluble relationship of civilization and progress with real participation of the person is being formed in decision of political, economic, social and cultural problems both the state, and in global world scale. All this occurs on the background of the sharpest political, economic and social-cultural crisis. The society has been over waved with legal nihilism, formed on the ground of lawlessness preceding years, there has fallen the prestige of rights and law-enforcement bodies, there is difficultly overcome the scornful attitude to rights and interests of the person. The state and the person are not considered equal participants of the social contact; the person invariably appears in the role of the suppliant even, when the problem on protection of legal rights and freedoms is decided.
The human rights has become a complex multivariate phenomenon. In different epochs the problem of human rights invariably remaining political and legal, has gained either religious or ethical, or philosophical meaning depending on social position of the classes being at power.
The question is whether it is actual today to speak of human rights of the person, individual, and society? Whether the society has not reached such level of development, under which the given questions do not appear? Analyzing the real political, legal, moral situations, forming in the Russian Federation and obstructing the processes of development and ensuring human rights, formation of the legal and social state, you begin to understand that the given subject becomes the priority problem of the state, society. The historical development shows that each generation should protect rights of the person and mankind does not know the situation, under which there should not be needed efforts for maintenance and protection of the rights and freedoms of the individual. Each generation in its own way answers the eternal call of historical development, connected with taking back of such great values, as freedom and human rights.
The human rights should find the leading place in political and legal doctrines and in practice of the modern Russia.
Our society will become free, democratic, humane and moral only when there is really incarnated in life the constitutional principle, fixed in Article 2 of the Constitution of the Russian Federation: "The person, his rights and freedoms shall be the supreme value. Recognition, observance and protection of rights and freedoms of a person and a citizen shall be the duty of the state".
Formation of the legal system, based on the idea of human rights, their insurance and protection by the state has begun in Russia with the judicial reform, carried out since 1991. It became at the beginning of 90-s. One of the most important problems, without decision of which real transformation of the society was impossible. The purpose of the judicial reform was determined "formation in Russia of the independent judicial authorities, whose activity is directed on protection of human rights, provision of social stability and mode of legality in the state, realized by means of measures of the legal nature". For achievement of the given purpose it was necessary to decide three problems: 1) adduction of competencies of courts in accordance with requirements of the legal state; 2) provision of independence of the judge "from influence of other branches of authorities, from pressure on the part of different political groupings and social groups so that the court could successfully execute its own functions"; 3) provision of legislative authorities.
On October 24, 1991 the concept of the judicial reform was adopted by the Supreme Soviet of the RSFSR. It provided: a) creation of independent judicial authorities, capable effectively to protect rights and freedoms of a person and a citizen; b) realization of justice on the bases of the principle of competitiveness and equality of the sides, liberation of the court from execution of the functions alien to its jurisdiction; c) participation of citizens in realization of the justice as jury-men; g) reinforcement of judicial control on the stage of preliminary examination; d) expansion of access to justice; e) ensuring the citizens with skilled legal aid.
The background principles of vital activity of the system of judicial authorities were stipulated in the Constitution of the Russian Federation of 1993: realization of the justice solely by court (Article 118), independence of judges and their subservience solely to the Constitution of RF and federal law (Article 120), realization of the justice on the bases of competitiveness and equality of the sides (Article 123), equality of all before the law and court (Article 19), tenure and inviolability of judges (Articles 121, 122).
The right of each person and citizen to judicial protection of rights and freedoms has been stipulated by the Law of the Russian Federation "About appeal in court of actions and decisions, violating rights and freedoms of the citizens" from April 27, 1993, according to the Law (with changes on December 14, 1995) each person has the right to apply with the complaint in court if considers that his rights and freedoms are violated with illegitimate action (decisions) of state bodies, bodies of local self management, institutions, enterprises and their associations, public associations or officials, state officials (Article 1).
To actions (decisions), which can be appealed in court, pertain collective and individual actions (decisions), including presentation of official information, which has become the reason for completion of actions (making decisions), as a result of which there are violated rights and freedoms of a person; created obstacles to realization by the person of his rights and freedoms; unlawfully on the person there has been entrusted the duty or he is unlawfully drawn to the responsibility (Article 2). Besides, citizens have the right to appeal the inaction if it has caused consequences, specified in Article 2. Each person has the right to receive, and officials or state officials are obliged to give him the opportunity of familiarization with the documents and materials, directly violating his rights and freedoms if there are no installed by the federal law restrictions to information, kept in these materials and the documents (Article 2). The citizen has the right to appeal the above mentioned actions (decisions), inaction, and information, being the reason for completion actions (making decisions), inactions, or this and that simultaneously (Article 2).
The termination of the first stage of the judicial reform has become the Federal constitutional law from December 31, 1996 "About judicial system in the Russian Federation". Vitally important positions of the given Law are the following: equality of all before the law and court; independence, tenure and inviolability of judges; compulsion of judicial resolutions; uniformity of the judicial system in RF; clear division of courts into federal and courts of the subjects in the Federation, comprising constitutional (charter) courts and justice of the peace and others Adoption of the Federal constitutional law "About judicial system of the Russian Federation" has become the serious stimulus for speedup of undertaking of the judicial reform, in particular, adoption of the federal laws "About justice of the peace in the Russian Federation", "About judicial department at Supreme Court of the Russian Federation", "About judicial police officers", "About executive proceedings" , etc. As a whole, during 1991-2007 there have been taken measures on formation of independent judicial authorities, which realize their own authorities for the purpose of "protection of rights and freedoms of a person and a citizen of the constitutional system, the uniform economic and legal space of the Russian Federation". There have come in force such new laws, as "About the Constitutional Court of the Russian Federation", "About courts of arbitration in the Russian Federation", "About judicial police officers", "About executive proceedings", "About justice of peace in the Russian Federation", "About bodies of judge's community in the Russian Federation", the Criminal, Criminal-Procedural, Criminal-executive codes of the Russian Federation, the Civil Procedural Code, the number of resolutions of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation, directed to reinforcement of judicial protection of the constitutional rights of a person and a citizen.
The special position in the federal judicial system is occupied by the Constitutional Court of the Russian Federation, created in 1991 The competence of the Constitutional Court of RF comprises four constitutional authorities:
- checking the laws, other statutory legal acts and agreements (statutory control), realized on three types of requests and complaints - from bodies of the power, citizens and courts;
- settlement of disputes about competencies;
- interpretation of the Constitution of RF;
- making the conclusion about observance of the order of accusation of the President of RF in high treason or completion of other felony.
The purposes of the Constitutional Court are protection of fundamentals of the constitutional system, of the fundamental rights and freedoms of a person and a citizen, provision of supremacy and the direct action of the Constitution of the Russian Federation on the entire territory of the Russian Federation.
In accordance with Article 96 of the Federal constitutional law "About the Constitutional Court of the Russian Federation" the right to apply to the Constitutional Court with the individual or group complaint on violation of the constitutional rights and freedoms shall possess the citizens, whose rights and freedoms are violated by the law, applied or subjected to application in the concrete case; associations of the citizens; foreign citizens; other bodies and persons, specified in the federal law, including the Plenipotentiary on human rights in RF and General Public prosecutor of RF.
The form of the written application to the Constitutional Court of RF can be different (the request, petition, complaint).
The complaint on the violation by the law of the constitutional rights and freedoms is admissible if: 1) the law violates the constitutional rights and freedoms of the citizens; 2) the law applied or is subjected to application in the concrete case, consideration of which is terminated or commenced in court or any body, applying the law.
Having admitted for consideration the complaint on the violation by the law of the constitutional rights and freedoms of the citizens, the Constitutional Court notifies the court or any other body considering the court, in which there has been applied or is subjected to application the appealed law. The notice does not entail the stay of proceedings of the case, however the court or any other body, considering the case, in which the appealed law has been applied or is subjected to application has the right to suspend the proceedings till decision making by the Constitutional Court. As a result of consideration of the complaint on the violation by the law of the constitutional rights and freedoms of the citizens the Constitutional Court of RF makes one of the following decisions: 1) about recognition of the law or its separate positions corresponding to the Constitution of RF; 2) about recognition of the law or its separate positions not corresponding to the Constitution of RF. In the event the Constitutional Court has recognized the law applied in the concrete case, not corresponding to the Constitution of RF, the given case is subjected to revising by the competent body in usual order. And recognition of the law or its separate positions not corresponding to the Constitution of RF entails indemnifying of judicial expenses of the citizens and their associations in the established order.
Mainly complaints of private persons and requests of state bodies are recognized correct that is "disputed lawful positions and positions of other statutory acts actually do not correspond to the Constitution of the Russian Federation". Annually the Constitutional Court of RF receives about 10 thousand applications, but only 2-3 % of them meet the requirements of the Federal constitutional law "About the Constitutional Court of the Russian Federation".
The cases on protection of rights and freedoms of the citizens, considered by the Constitutional Court can be divided into several groups - cases, connected with check of: 1) the criminal of criminal-procedural legislation; 2) constitutionality of administrative legislation, restricting the right to private property; 3) norms of electoral legislation, as well as 4) the cases on consideration of complaints on the violation of labor and social rights and freedoms; 5) the cases about restrictions of the housing rights of the citizens; 6) the cases, concerning questions of inheritance and citizenship of the Russian Federation.
As a whole, the Constitutional Court of RF protects from encroachment of the federal lawmaker, as well as lawmaker of the subjects of the Russian Federation the constitutional rights and freedoms of different categories of the citizens: depositors of the banks, pensioners, persons of free professions, businessmen, foreign citizens, persons, leaving abroad for permanent citizenship, persons, damaged from catastrophe at Chernobyl Power Station, rights subjected to repression and others The serious problem is considered performance of decisions of the Constitutional Court of RF whereas, in real practice there often occurs disrespectful attitude to decisions of the Constitutional Court on the part of bodies and officials, applying the laws, which violate constitutional rights and freedoms of a person.
According to the analysis of formation and ways of development of the judicial system in Russia over the last years as a result of undertaking of the judicial reform the role of justice has greatly increased both qualitatively and quantitatively. And it fully concerns the decision of the problem of protection of human rights.
Rights of a person and a citizen is bases of the stable development of the state, stability of the political system of the society, moral peg of the public consciousness of the developed civil society, the foundation on which the whole legal state is based.
At present Russia is on the way of construction of the legal state. And observance of rights of a person and a citizen is one of the main factors of the firm development of the Russian state.
Islamic Republic Iran occupies the unique place in constitutional history of foreign countries. First of all, on the whole modern constitutional development of Iran there lies the shade of the antishakh revolution of 1979, which interrupted the process of political and social-economic modernization of 1960s-1970s and which stopped by forcible action the action of Constitution of Iran of 1906.
In literature on constitutional law Iran is characterized as modernized theocratic state [1]. At the same time in condition of clerical-authoritarian political mode there is regularly conducted election the later which had significant public resonance presidential elections took place in 2009. The principles of the Islam in this state have found constitutional stipulation and are everyday realized in law-making activity. Thus Iran on ethnic composition does not pertain to Arabic countries, geographically being in their encirclement. Besides, it is the single state in the region, which avoided direct colonization of the European countries. Therefore the influence of the later on state-legal system Iran was solely mediated.
Being during thirty years in conditions of hard political opposition with the United States, the authorities of Iran support the radical Islamic groups in region, in particular, "Hezbollah", openly threaten existence of the State of Israel, pretend on special relations with the Russian Federation.
All these circumstances dictate the value and urgency of the study of the constitutional law of Islamic Republic Iran (IRI).
In the Soviet study of East countries there positively enough was valued the Iran legislation of 1960s in accordance with the program of reforms, approved on the referendum on January 26, 1963. In particular, they pertained the acts of the land reform of 1963-1969., nationalizing of timber lands, change of law about elections to Medzhelis, the law about participation of workers in profit of enterprises of 1963, the law about extension of rights of women's in the sphere of household relations of 1967 [2].
At the same time, the generalizing composition, published on the eve of Antishakh, Islamic revolution of 1979, contained absolutely invalid conclusion that "the objective development of the country, its modernization would bring to gradual fall of the role and influence of religion and clergy in the Iran society"[3] that did not correspond to the reality. The fact is that the leader of the Iran fundamentalist R.M. Homeyni came in opposition to the government in 1962, when on the order of the Shah there was liquidated the condition that all candidates to provincial assemblies should be Muslims, and witnesses in court obtained the right to give the oath not only on Koran, but also on other holy books. In 1963 he called not to participate in the referendum, which was to approve "the white revolution of" Shakh. Homeyni convicted the violation of Islamic and constitutional principles, political, economic and military cooperation of western with Iran, deprivation of a part of the representatives of clergy of the freedom of speech. All this assisted the uniting around him heterogeneous opposition forces and quick growing of the authority of the ayatollah in the country.
The separate aspects of the given subject have found their reflection in the works of modern domestic and foreign lawyers [4]. In particular, the authors of the study on evolutions of the political systems in the east considered the problems of modernization of state-political system of Iran with standpoint of correlation of traditions and democratization, beginning from 1920-1930[5]. In the opinion of V.E. Chirkin, in Iran the Koran is the part of "the constitutional block", put above the constitution and the rest parts [6]. The Russian lawyers refer Iran to the countries, where the Islamic Fundamentalism was confirmed on the state base [7]. They have made the conclusion that for the theocratic republic it is characteristic to have the legal stipulation of participation of the clergy not only in political life, but also in direct ruling of the state [8].
The working Constitution of Islamic Republic Iran of 1979 contains the preamble and 14 chapters, in whole 177 articles. In the given article we use the text of the Constitution, placed on the sight of the Law Faculty of Richmond University, USA [9].
Before the antishah revolution of 1979 Iran, in accordance with the first Constitution of the state of 1906 on the form of rule was the parliamentary monarchy. The Constitution of 1906 consisted of two statutory acts: the Main law of 1906 and Additions to the main law of 1907, which fixed the main civil rights, the principle of division of the powers alongside with conservation of the significant political prerogatives of the shah and shiit clergy [10]. In 1911 there was adopted the electoral law, in which there were fixed such principles of the electoral r law, as general, direct and secret elections on the proportional base, canceling the property requirement.
Article 2 of Additions to the Main Law provides the council from five ulems (the Islamic theologians), which task was realization of check on discrepancy of the adopted laws to the principles of Islam. In 1978, in conditions of the growing political crisis shah Mohammed Resa Pehlevi offered to found the given body, however this initiative failed. Quite often the head of the state applied the right of dismissal of the Iran parliament -Medszelis, whose legislative activity was under checking of the Shah government.
After the forcible dethronement of the dynasty Pehlevi on February 11, 1979 there was organized the referendum on the question of the future state system, on which results Iran on the April 1 of the same year was proclaimed Islamic Republic. The conceptual bases of such state have been worked by the leader of the anti-shah leader Ayatollah Ruholla Musavi Homeyni and in detail stated in the work “the way of ruling in the Islamic Republic". Here the author initially postulated the need of formation of the Islamic state possible in two variants. First provided leadership of the state on the part of "the hidden" imam Mahdi or niominated by him. In this case Homeyni did not motivate the choice of the form of ruling, as Mahdi "personally installs the laws, appoints executive and judicial bodies, leads the army and its arms, organizes the finance. He brings into operation whole mechanism of authorities, the whole administrative and financial system".
The second variant is connected with absence of the "true" imam, under which the most identical for Iran shiits, according to Homeyni, there can be solely the Islamic republic as the democratic system, the people possess the sovereignty, and the people express the general will to elect the state bodies and to deliver them the power. In this connection, in the printed additions of the study of the East there was noted that in this concept Homeyni has come into opposition with the leading concept of the shiit direction in Islam about hereditary nature of the power, which can possess solely descendants of the prophet.
For argumentation of the legitimacy of electoral bodies of the power Homeyni actively applied the theoretical arsenal of the Islam law and theologies:
- the thesis about that fetvs of those is worthy to stand them in accordance with Shariat to proclaim the Islamic resolutions, should be performed by all, who do not possess such qualities;
- the position about the council, according to which, when arising doubts on any question should be put on discussion;
- the key position about the supreme mission about the Islamic lawyer of high rank"), according to which, those who correspond to the rank of mudzhtechid [11] and possesses the brilliant ability of interpretation of fundamentals of Islam, is given “the right of authorities on the part of property and citizens of the society". In spite of the fact that this power is not equivalent to authorities of "the true" imam, it is wholly sufficient for governing affairs of the society;
- the thesis about the necessity to do well and to remain from evil action. Homeyni noted that its details are stated in the book of fikchs, in which there are considered conditions, borders and the spheres of its application.
R. Homeyni classified the bodies of power in the Islamic republic as follows: the body of decision making, founded on the Shariat; the consultative body; the executive body of the power. The body of decision making was made as the specific symbiosis of the legislative body and the body of the constituent power, consisting of the most authoritative theologian. The decisions in the form of unanimously taken fetvs in the established order should be founded solely on the Islamic firsthand books (Koran, Sunne), to regularize them and to bring into action. After decision making on the disputable question the rest standpoints were necessary to be given to oblivion moreover supporters of these or that mudzhtechid should not know, to whom from the composition of this body the project of the decision belong.
The consultative body was provided as strictly parliament, which deputies "were elected by the people". On the bases of fetvs, taken by the body of decision making, parliament must discuss "different projects of the state affairs", to take them in accordance with needs of the country and to send them to the executive body. In composition of the parliament there was reserved representation of the Islamic theologians (not less than five deputies) so that "all the laws became firmly established under their control and did not leave for frames of the prescriptions of the Islam".
The executive body was planned as the government of the Islamic republic, whose competence was nominating to the low state posts, performance of the programs, confirmed by the supreme authorities, taking the executive orders, checking functions.
R. Homeyni did not select the judicial bodies as the separate branch of authorities, having considered that in the Islamic state justice should be realized solely by the Moslem theologians: all employees of the bodies of justice from the Minister of Justice up to judges of low courts should be mudzhtehids or fakichs[12]. From the number of the clerics there should be nominated ministers and their assistants, who "order citizens of the country": chief of the police responsible for mobilization into army, governors.
During the last period of activity of "the leader of the Islamic revolution" Homeyni there was revealed the necessity of certain changes in his state-legal doctrine. On the one hand, he became to aspire to the role of the leader and the sovereign judge of the whole Moslem world. In particular, he released the fetv, containing the statutory prescription to each Moslem to execute the author of the book "Satanic poetry" by S.RUSHDI.
On the other hand, in accordance with the letter of Homeyni from April 24, 1989 there was created the Counil on reassessment of the Constitution of the Islamic Republic Iran in composition of 20 members for revising of some positions of the Main Law. The most complex problem of this body was determination of the criteria of the successor of Homeyni. According to the Constitution of 1979, the spiritual leader must possess the public authority, however in the Shiit tradition there exist no statutory rules of the determination of the authority. As a result of the reached compromise there was worked out the formula, on which the functions of the spiritual leader were separated from the functions of the "authoritative leader". Accordingly from the spiritual leader of the country there was required only sufficient life and political experience, his post was decided to install as life. To elect it had the Council of experts, which composition was formed on results of the general voting.
In the adopted Constitution of the Islamic Republic Iran of 1979 there found the reflection practically all conceptual installations of R. Homeyni. In the vast preamble to the Constitution there are stated the main stages of the "great Islamic revolution", which led to dethronement of "authorities of internal tyranny and founded on its foreign mastery". The essence of the Main law is denominated in position that "the Constitution of Islamic Republic of Iran on the bases of Islamic determinations reflects cultural, social, political and economic institutes of the Iranian society, which are the entailment of the sincere longings of the Islamic nation" [13].
The sources of the constitutional law of Islamic Republic of Iran are determined in position of the preamble that lawmaking, which reflects the principles of social control, is found within the framework of Koran and Sunny. "Therefore there is necessary serious and intent checking on the part of equitable, righteous and dedicated Islamic theologians". Coming from it the hierarchy of the sources looks as follows: Koran, Sunna - interpretations of Islamic theologians - the Constitution of Islamic Republic of Iran - mundane legislation.
The bases of constitutional system are stated as a whole in the number of articles, beginning from Article 1, according to which the form of rule in Iran is installed as "the Islamic republic, for which there has voted the Iran nation by majority in 98,2 % at the referendum, which was organized after the Islamic revolution under the leadership of the Great Ayatollah Imam Homeyni". The principles of construction of the Islamic republics are prescribed solely from theological positions: common religion, on the bases of which there are installed the laws of shariat; the divine revelations applicable for interpretation of the laws; the terrible court; the divine fairness; receivership of the rule of Imams and others (Article 2). Article 4 installs that the Islamic values should be the bases of all laws and decisions in the field of the civil, criminal, financial, economic, administrative and the other law. The action of this article spreads both on articles of the Constitution, and on the laws and all other acts. The Fakihi in the Council of keepers of the Constitutions check execution of the given positions.
The Ideologem of the Islamic nation was shown in Article 11, containing the norm-purpose: "In accordance with from Holy Koran, the Moslims are considered the united nation, the government of Islamic Republic of Iran must conduct its general politician on the ground of unity and solidarity of Islamic nations, as well as strive to realization of political, economic and cultural alliance in the Islamic world" [14]. The snalysis of the given article quite often brings the specialists to the conclusion that the Constitution of IRI was formed as the prototype of the future Main law for the whole Islamic world. The attempt of the export of ideas and determinations of the "Islam
Abstract work THE PROBLEM OF PROTECTION OF HUMAN RIGHTS AS THE MOST IMPORTANT DIRECTION OF THE JUDICIAL REFORM OF MODERN RUSSIA реферат. Государство и право.
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