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Courier of Kutafin Moscow State Law University (MSAL))

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No 4 (2021)
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A WORD TO THE READERS

UNIVERSITY CHRONICLE IN THE ANNIVERSARY YEAR

EXPERT OPINION

23-44 989
Abstract

The article is devoted to the issues of the role and meta of the Russian institute of human rights commissioners in the system of state bodies, its formation and development, the legal status of the state office of the Commissioner. The author comes to the conclusion about the unity of the two-level system of state human rights activity of the human rights commissioners; expresses his position on the ways of its further development. 

VECTOR OF LEGAL SCIENCE. Actual problems of the activities of the Commissioner on human rights in the Russian Federation

45-53 931
Abstract

The article analyzes various aspects of the legal nature of the institution of the Commissioner for Human Rights in the Russian Federation, emphasizes the versatility of its human rights activities in cooperation with public institutions. The effectiveness of such interaction is justified, including by the example of cooperation with the Scientific and Educational Center for Human Rights (REC) at the O. Е. Кутаfin University (MSLA). There are difficulties in the work of the commissioners, due to the fact that the increasing digital literacy of the population makes it relatively easy to send an appeal to the Commissioner for Human Rights in the Russian Federation, regional commissioners, and the capabilities of these bodies are quite limited. In this regard, some proposals are formulated. The author analyzes the possibilities for the implementation of human and civil rights and freedoms by the Commissioners with the support of civil society institutions, suggests developing such interaction in different directions, and considers the criteria for the effectiveness of the institution of commissioners, including such an indicator as interaction with civil society institutions.

54-63 725
Abstract

The results of the latest sociological studies indicate a sharp increase in the demand for justice and an emerging tendency for citizens to understand the category of justice in a human rights context. Based on the analysis of the work of the High Commissioner for Human Rights in the Russian Federation, approaches to the implementation of the principle of justice through the restoration of violated rights, lawmaking in the field of human and civil rights, international cooperation in the field of human rights and legal education on human rights and freedoms, forms and methods of their protection are revealed. The proposals on the need to improve legislation and law enforcement practice are substantiated.

64-75 398
Abstract

The article covers the activities of the Commissioner for Human Rights in the Russian Federation in the field of political rights. The current dynamic of the institution of political rights is emphasized not only by increasing the powers to exercise constitutionally enshrined political rights and by numerically increasing of the group studied, but also by broadening their objectives, for example, maintaining trust in authority. The author concludes that the prevention of risks in the field of political rights through legal education in the field of human rights, raising the level of legal awareness of citizens today is a relevant and necessary activity of the Commissioners for Human Rights in Russia. Ultimately, their educational activities — at first glance, indirect in terms of political rights, should be aimed at restoring confidence in public authority. Trust is the base for the sustainable development of the Russia and civil society, which is the basis for an active living position, manifested primarily in the field of political rights. On the base of the analysis of sectoral legislation, was formulated proposals for its reform and directions of activities within the stated topic.

76-84 486
Abstract

The main aspects of the protection of the rights of journalists by the Human Rights Ombudsman in the Russian Federation, presented in his reports from 1998 to 2019, are studied. It is revealed that the problem of violations of the rights of journalists was present in most of the reports of the Ombudsman, the Ombudsman considers attacks on them to obstruct the exercise of their professional duties, the termination of the activities of the media on grounds unforeseen by law, some forms of economic pressure on independent media, illegal restrictions on access to information, etc.

It is concluded that the protection of the rights of journalists should remain one of the priority areas of the activities of the Commissioner for Human Rights in the Russian Federation, the analysis of violations of the rights of journalists should be included in the section “Protection of the rights of certain categories of citizens.” To some extent, this proposal was embodied in the report of the Ombudsman in 2019, section 2.6 of which is designated as “Freedom of speech and protection of the rights of journalists”.

85-95 422
Abstract

The article addresses issues related to the development of international cooperation as one of the key areas of activity of the High Commissioner for Human Rights in the Russian Federation. The special features regulating the activities of the High Commissioner, including the novelty in the national legislation and international standards in this area have been presented. Special attention has been given to the directions and forms of cooperation of the High Commissioner with national human rights institutions of foreign states, universal and regional international organizations, integration associations of ombudsmen. Examples of the interaction of the High Commissioner with the United Nations and the Council of Europe at the present stage have been provided. The efforts of the High Commissioner to protect the rights of the Russian citizens and compatriots living abroad have been highlighted. The article presents the development and strengthening of such concept as “human rights diplomacy”. The aspects of the establishment and promotion of the Eurasian Ombudsman Alliance have been reflected.

In conclusion, the authors make recommendations on the extension of the competence of the High Commissioner.

96-104 361
Abstract

The article considers the formation of a culture of human rights as a guarantee of constitutional norm on the highest value of a person, his/ her rights and freedoms. Considerable attention is paid to the activities of the High Commissioner for Human Rights in the Russian Federation in this direction, including those directed to ensuring the right to know one's rights. A number of proposals for the Commissioner's further work in this area have been formulated.

VECTOR OF LEGAL SCIENCE. Human rights in the modern world

105-114 384
Abstract

The article provides an overview of international documents and Russian normative legal acts that establish the right to education. The rights and obligations of educational organizations to ensure the right to education in the context of digitalization are noted. The possibilities and conditions for the implementation of educational programs with the use of e-learning and distance learning technologies are shown. Attention is drawn to the legalization of educational standards of the latest generation of the implementation of educational programs using digital technologies. In the aspect of local rulemaking, the system of acts regulating distance learning of the Kutafin University (MSLA) is demonstrated.

It is concluded that in modern Russia, educational organizations have all the legal grounds to ensure the right of citizens to education through e-learning using distance learning technologies, but this subjective right is limited by the system of legal imperatives. The article presents the data of sociological studies conducted at the MSLA. Based on the analysis of their results, it was stated that the Kutafin University was ready for the digital challenges, providing students with the opportunity to realize the right to a high-quality higher education.

115-124 638
Abstract

The article deals with topical issues of restrictions on human and civil rights and freedoms in Russia in special circumstances of activity, primarily in the context of the COVID-19 coronavirus pandemic. The article examines the issues of restricting the rights and freedoms of a Russian citizen in a state of emergency. The authors of the article consider the issues of restricting the constitutional rights and freedoms of citizens in a high-alert and emergency situation. It is shown that the activities to protect the rights and freedoms of citizens in the context of a pandemic are based on Article 55 of the Constitution, according to which rights can be restricted by law only to the extent necessary to protect the health of citizens. Based on the analysis of changes in legislation in this area, the authors raise the problem of the relationship of the rights and freedoms of each person with the rights and freedoms of others, the interests of society. It is concluded that one of the forms of constitutional restrictions on rights and freedoms are constitutional obligations, which mean a measure of proper behavior of a person due to the need to correlate their interests with the interests of other persons, society, and the state.

VECTOR OF LEGAL SCIENCE. Practice of activities of authorized representatives on human rights in the regions

125-133 621
Abstract

In this article the author examines and critically evaluates the main approaches to understanding the effectiveness of the activities of the commissioners for human rights in the subjects of the Russian Federation. The author proposes its criteria and underlines the importance of assessing the coordinating function of the commissioners in the sphere of ensuring and protecting human rights, the implementation of systemic strategic documents of the subjects of the Russian Federation in this area.

134-141 276
Abstract

To date, in public opinion, as well as in the scientific community, there have been polar assessments of the activities of the ombudsmen in the constituent entities of the Russian Federation (hereinafter referred to as the Ombudsman): from “bureau for redirecting complaints” to “a unique institution for the protection of human and civil rights and freedoms”. The spectrum of opinions, as a rule, is formed through the study of analytical materials (annual and special reports), or it can be formed from the subjective experience of a researcher (respondent) addressing the Ombudsman, taking into account the results of a specific complaint consideration.

The activities of ombudsmen to ensure state protection of human and civil rights and freedoms are quite versatile.

Therefore, in this article, we made an attempt to analyze the human rights activities of the Ombudsman not from the standpoint of the effectiveness of decisions made on complaints received in a particular sphere of relations, but through the prism of its ability to generally influence the law enforcement practice of state authorities, local governments and organizations, performing publicly significant functions.

142-154 339
Abstract

The article considers the relevance of strengthening the mechanisms for protecting the rights of small indigenous peoples in connection with the amendments to the Constitution of the Russian Federation and the experience in protecting their rights on the example of the activities of the Commissioner for Human Rights in the Khanty-Mansi Autonomous Okrug — Ugra.

The article analyzes the experience of the subjects of the Russian Federation on the formation of the institution of commissioners for the rights of indigenous peoples. It offers some legal forms of interaction of regional human rights institutions and commissioners for human rights, which operate on the territory of indigenous peoples, and the establishment of a permanent collegiate body of the Federal Commissioner for human rights, who will act in the interests of the rights of indigenous peoples of Russia and contribute to the development of regional human rights institutions.

155-163 1154
Abstract

The article critically examines the changes of federal legislation concerning the human rights commissioners in the subjects of Russian Federation adopted in 2015 and 2020 in the framework of the Venice and Parisian principles. It analyses three main trends in the development of the institution of the human rights commissioners in the subjects of the Russian Federation — ensuring their independence at the regional level, expanding of their functions and competence, and integrating them into the system of ombudsmen in Russia. The author draws attention to the potential of this institution to promote the rule of law in Russia. The article concludes that changes in federal legislations have indicated the institualisation of the human rights commissioners at the regional level in Russia, have increased the authority of this post in the subjects of Russian Federation and have given a new impetus to development of this institute.

VECTOR OF LEGAL SCIENCE. Ombudsman Institution: Foreign Experience

164-176 550
Abstract

The article examines the institution for the protection of human rights (ombudsman) operating in Canada, represented by a variety of bodies, officials, and the specifics of their powers. Particular attention is paid to the Canadian Human Rights Commission — a human rights state body within whose jurisdiction is exercised control over public administration and private companies at the federal level on discrimination issues, as well as the Canadian Human Rights Tribunal, which, according to the author, performs a quasi-judicial role in exercising jurisdictional control. The author comes to the conclusion about the formation of a two-stage mechanism that ensures more effective protection of human rights.

The article thoroughly examines the legal and institutional features of the status and powers of human rights commissions and ombudsmen operating at the provincial and territorial levels. The study allowed the author to identify the following features of the institution for the protection of human rights (ombudsman) in Canada: the prevailing decentralization, which is expressed in the autonomy of the provinces and the Federation in the establishment and consolidation of the status of officials and bodies carrying out human rights activities; institutional plurality, characterized by a variety of structures (bodies, officials), the scope of their powers aimed at protecting human rights; development of specialization of state human rights institutions in various areas (discrimination, labor relations, housing and others); formation of a “local” model of the ombudsman in non-state corporations and institutions. The author proposes to use the experience of the Canadian Human Rights Tribunal when developing the concept of a human rights court in Russia.

177-184 238
Abstract

The article proposes an analysis of legislation and scientific research on the legal status of indigenous small peoples in foreign countries. Particular attention is paid to the types of public authorities and ombudsmen, the specifics of their legal status and the powers to protect the rights of indigenous peoples in different States. Specific mechanisms for the action of the law, in particular Aboriginal law based on the use of religious and moral traditions of small peoples, are proposed. Among the aspects of the legal protection of the child's interests are the discussion points of the independence of the legal status of the child and its implementation externally, including in the context of the implementation of parental rights. A special place is given to the problem of the law-making of public bodies created by indigenous peoples themselves.

185-192 332
Abstract

This article examines the experience of legal regulation and the activities of ombudsman offices in the field of local government in the Anglo-Saxon states. The author notes that institutionally this mechanism depends on the form of state structure, functioning either at the national or regional level, although recently the offices of the municipal ombudsman, have also been appearing. The request for the development of the ombudsman's control over municipal institutions is determined, inter alia, by the peculiarities of the corporate model of local government, which increases the opacity of the activities of municipal bodies. The author singles out a number of specific features of the Anglo-Saxon experience in the area under consideration, concerning primarily the functional component of the ombudsman's status, which are of interest for further study and possible reception.

193-203 409
Abstract

In many states, the implementation of the principles of open government is defined as the current common trend and political challenge since it includes the procedure of administrative reform, revising the regulations for public officials for better trust between the government and society. Pursuing the mechanism of open government, states adopt national plans, introduce specialized bodies, although often the process of implementing the principles of public administration and control over this process is entrusted directly to the bodies — participants in the experiment. At the same time, ombudsman institutions, which are represented in many countries, has all the initial prerequisites to play an essential role in the open government. The mission that ombudsmen can complete in open government is twofold. On the one hand, as an institutional entity within the state, ombudsman can apply all the principles of open government in his activities, which as close as possible to the philosophy of the principles of openness, transparency, accountability. In this case, ombudsman can serve as a testing ground or an example of the successful implementation of principles for other bodies in the state. On the other hand, ombudsman, by virtue of their direct powers, is entitled to monitor problems in public administration and participate in the implementation of administrative reform. The article describes the foreign practices of involving ombudsmen in open government process.

204-218 374
Abstract

The National Preventive Mechanism (NPM) is a unified system for monitoring the observance of human rights in places of detention, the system complies with international standards. In each State, the National Preventive Mechanism has its own characteristics. The article presents the results of a comparative legal study of the legislation of foreign states that have created the National Preventive Mechanism. Based on these results, identifies and analyzes three existing models of the National Preventive Mechanism in the world, identifies their advantages and disadvantages, and describes in detail all modifications of these models. The scientific work substantiates the author's position that the empowerment of National Preventive Mechanism functions to several decentralized bodies coordinated by one of them is optimal for the Russian Federation. Special attention is paid to the need to include in the National Preventive Mechanism of Russia an independent, regular and preventive public control over the observance of human rights in places of detention.

SCIENTIFIC RESEARCH

219-229 336
Abstract

The review notes the intellectual richness of the national science of constitutional law, the creators of which, on the eve of the anniversary of the Constitution of Russia, entered into a dialogue: a dialogue of generations; a dialogue of scientific schools; a dialogue of worldviews; a dialogue of individuals gifted with talent, an inquisitive mind, the ability to set nontrivial scientific problems and brilliantly solve them, involving statesmen, public leaders, politicians, practicing lawyers in the co-creation of the legal space of Russia. The constitutional dialogue initiated by the Saratov School of Constitutional Law has become an evidence that Russian state scholars are ready for the challenges of our time. They understand the full measure of responsibility that is assigned to the rulers of scientific minds in the era of large-scale changes, the era of choosing the path of further development of civilization. Reflecting the identity of representatives of various scientific schools, the continuity in the assessment of science as a path of service to the high truth, the novelty of ways to find answers to the burning questions of the modern constitutional construction of Russia, the reviewer draws attention to the fact that it brings together different positions, makes us look for a common denominator. This is the philosophy of the constitutional worldview, constitutional ethics, which has become the basis for the existence of public. 

TRIBUNE FOR YOUNG SCIENTIST

230-235 420
Abstract

The Institute of the Business Ombudsman in Russia has been functioning in the Russian Federation for more than eight years. His work is positively evaluated by the business community. The article outlines some issues of legal regulation of the status of the Business Ombudsman in Russia. The analysis of the indicators of the annual reports of the federal business Ombudsman allows us to draw a conclusion about the effectiveness and relevance of the institute under study. The author comes to the conclusion that it is necessary to further improve the legal regulation of the status of the federal business ombudsman.

236-244 313
Abstract

The article deals with the protection of property rights by the Commissioner for Human Rights in the Russian Federation. The author believes that the activities of the Commissioner contribute to the development of the institution of property in Russia. The text reveals the constitutional content and significance of the inviolability of property for the legal system of the state and the development of the rule of law. The author concludes that the relevant protection should be carried out in strict compliance with the principle of maintaining a balance of private and public interests, and in order to improve approaches to protection, it is necessary to consider the interpretation of this principle given by the Constitutional Court of the Russian Federation and the European Court of Human Rights. In support of these conclusions, the author reveals the corresponding approaches to the interpretation of the protection of property rights of the Constitutional Court of the Russian Federation and the European Court of Human Rights.

LAW IN HISTORICAL REFRACTION. Legal heritage

POST SCRIPTUM



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ISSN 2311-5998 (Print)
ISSN 2782-6163 (Online)