No. 1 (2021): Russian Law: Education, Practice, Research. 2021. № 1

HUMAN RIGHTS

Krylatova I. Yu.

Legal Transformation of Human Dignity

Human dignity is a complex legal category with large percentage of non-legal nature. Moral and ethic norms are a core stone of human dignity making the dignity concept extremely flexible. This can be seen in biomedical sphere and in the latest challenges of biotechnologies where people have become active users of their somatic rights. Comprehensive understanding of human dignity concept is a matter of understanding the limits of enjoyment of somatic human rights which are currently in focus of biotechnological achievements. With this respect the international principle of inherent dignity should be the key principle of national rule of law and legislation. Intense national debate about human dignity focuses on various cultural and historical traditions and should not reduce the international understanding and international guaranties of human dignity protection.

This paper reviews legal transformation of the issue of human dignity and the essence of this category in the light of biomedical breakthrough. The discussion will turn to human dignity as it is understood in international law, domestic constitutional law of foreign countries and constitutional doctrine. Starting with the analysis of various approaches of stipulation of dignity at international and domestic level, the paper indicated the risk of setback to the achievements in reaching international consensus of inherent dignity. The author overviews the most important constitutional amendments focused on human dignity as a key concept of legal system in foreign countries after adoption the Oviedo Convention.

Based on the analysis of the practice of the Constitutional Court of the Russian Federation and separate opinions of its judges in the sphere of surrogacy motherhood and organ donation the author makes the conclusion about the interdisciplinary transformation process of the human dignity concept and its nature.

Keywords: human dignity, international regulation of rights and freedoms, national regulation of rights and freedoms, the Constitutional Court of Russia, Convention on Human Rights and Biomedicine, somatic rights

 

INTERNATIONAL LAW

Badretdinov V. R.

The Problem of Determining the Limits of Realization of the Right to Freedom of Expression (Exemplified by Child's Rights)

For determining the limits of the implementation of the right to freedom of expression, the paper provides an analysis of the philosophical and legal aspects of freedom, intellectual freedom and the right to freedom of expression. The understanding of this right depends on understanding of the social value of freedom itself. In particular, some philosophers consider freedom as a creative energy, others believe it is a part of human being. In a philosophical sense, the expressed opinion does not require regulation, since it is not directed to the objective world. At the same time in a legal sense, the freedom of expression is as part of intellectual freedom; intellectual activity requires a legal determination. For correct legal regulation, an analysis of such a category as «person» is required, since its development affects the attitude of law to a person.

The author investigates the regulation of a child’s right to freedom of expression in international legal acts and in the relevant judicial practice. The author concludes that there is no protection of a child’s active right to freedom of expression, and also analyzes the reasons for a protection of his right exclusively from a passive point of view.

Keywords: right to free expression of opinion, intellectual freedom, rights of a child, ECHR, freedom of speech

 

Smetanin N. V.

Unilateral Declarations of States on the Internet: Limits of Bindingness

Due to the development of information technologies unilateral declarations of states made via the Internet become an integral part of international relations. The author examines the criteria for the validity of unilateral declarations of states and assesses their applicability to statements made on social media.

The following criteria are distinguished: the presence of a textual component in the unilateral declarations; commission of an act by an authorized representative of the state; the accuracy and clarity of the wording in the declaration; expression by the state of its intention to be bound by a declaration. Since Internet communication involves the transfer of information in the textual form, all declarations of states on the Internet can be considered as unilateral acts of states. By virtue of their functions, heads of state, heads of government, and ministers of foreign affairs are competent to formulate unilateral declarations. Other persons representing the state may be authorized to impose obligations on the state. Therefore, to unambiguously resolve the issue of powers, it is necessary to refer to the norms of national law. The legal consequences of the declaration must be derived from its text since if the wording is unclear, the alleged legal consequences become unattainable. Finally, the intention of a state to be bound by a declaration is established through the context and circumstances in which such a declaration is made. The author comes to the conclusion that the form and method of transmission of states’ declarations cannot be used to limit their legal force, and international law does not exclude legal consequences for such declarations.

Keywords: unilateral act of state, unilateral declaration of state, validity of unilateral acts, international treaty, intention (will) of state, Internet communication

 

PROCEDURAL LAW

Melnik N. N.

Issues of Exclusive Jurisdiction of Russian Courts Over Legal Persons Subject to Sectoral Sanctions of the USA and the European Union

The problem of finding ways to protect the rights and interests of legal persons involved in the United States and the European Union sectoral sanctions arose out the unpredictability of the United States and EU sanctions policy. For this reason, the changes were made to the Russian arbitration proceedings. The article analyzes the resent amendments to the Arbitration Procedural Code of the Russian Federation. The new norms provide for exclusive jurisdiction of Russian arbitration courts over disputes involving subjects of sectoral sanctions and disputes arising out of the United States and European Union sectoral sanctions. The amendments also include anti-suit injunction that allows a sanctioned person to preclude the other party from starting or continuing foreign court or arbitration proceedings.

It was concluded that the changes in the arbitration proceedings that have come into force correspond to the trend generated by the recent amendments to the Constitution of the Russian Federation, which actually established the supremacy of the Constitution and Russian law over the relevant provisions of international law.

Keywords: US sanctions, EU sanctions, exclusive jurisdiction, arbitration clause, sectoral sanctions

Koroleva E. V.

Appeal to the President of the Court with a Request to Speed Up the Consideration of the Case

The author reveals the concept, goals and significance of the institute of speeding up case consideration, enshrined in the procedural legislation and scien-tific doctrine. A significant role in the consideration of a relevant petition is played by the court chairman, who acts as a guarantor of the reasonableness of time lim-its of court proceedings and ensures that the judges act in accordance with the procedural legislation (in terms of time limits for consideration of a case).

It is determined whether the institute under study complies with the princi-ples of independence of the judiciary and the inadmissibility of interference in the activities of a judge. The author identifies the peculiarities and procedural prob-lems of application of the institute of speeding up case consideration. The motives for denial of applications for speeding up case consideration are outlined.

Keywords: chairman of the court, judicial proceedings, justice, procedural legislation, institute
of speeding up case consideration, reasonable time for legal proceeding

 

CRIMINAL LAW

Evdokimov V. B., Khomyakova M. A.

Criminal Law Protection of Human Rights in the Field of Organ and Tissue Transplantation

The right to life and health, like any other right guaranteed by the Constitution of the Russian Federation often becomes an object of criminal encroachments. The paper is devoted to the issue of illegal transplantation of human organs and tissues. There exists a duality of Russian medical law in the field of transplantation: two federal laws contradict each other regarding the presumption of consent to the post-mortem removal of human organs and tissues for donor purposes. The practice of the Constitutional Court of the Russian Federation is analyzed (the Rulings of December 4, 2003 № 459 on the Refusal to Accept for Consideration the Request of the Saratov Regional Court to Review the Constitutionality of Article 8 of the Law of the Russian Federation «On Transplantation of Organs and (or) Tissues» and of February 10, 2016 № 224 on the Refusal to Accept for Consideration the Complaint of the Citizens Biryukova Tatiana Mihailovna, Sablina Elena Sablina and Nellie Stepanovna on the Violation of their Constitutional Rights by Article 8 of the Law of the Russian Federation «On Transplantation of Organs and (or) Tissues», etc.).

The authors propose the creation of a unified digital database that records the consent or disagreement of citizens of the Russian Federation to the posthumous seizure of organs and tissues for donor purposes. In order to avoid criminal acts of medical workers (failure to help the patient) in order to obtain human organs for selfish purposes, it is recommended to make this information available only after death of a citizen.

The analysis of the legislation also showed that, despite the ban on the sale of human organs and tissues, there is no article in the Criminal Code of the Russian Federation providing for punishment for such transactions.

Keywords: human organs and tissues, transplantation, donation, presumption of consent, Constitutional Court of the Russian Federation

 

COMPARATIVE LAW

Kokotova M. A.

The Formation of the Territorial Body Management (Russia) and the Citizen Counsels, Quarter Counsels (France)

The paper investigates the problem of the public involvement at a local self-government on the example of the territorial body management (Russia) and the citizen counsels, the quarter counsels (France). The methodology is based upon comparative legal studies. The aim is to identify and explain the difference between the methods of legal regulation used by the national authorities for ensuring the optimal composition of the forms of citizen participation under study. The following methods are identified: 1) the methods stimulating the involvement of citizens, such as simplification of the procedure of admission; unlimited period of admission; minimal requirements for participants; 2) the methods of selection of candidates such as leaving the formation of organization to the discretion of its future partners, limited number of participants, different categories of participants from different social groups.

The author concludes that there is some difference between the methods used by French and Russian legislators caused by the difference of their tasks. The number of the participants of the citizen counsel is limited, that’s why there is a necessity in the methods permitting to choose the participants when some candidates are excessive or lacking. Such methods are not necessary for Russian territorial body management because the members are not limited in number, but
it can be interesting for other organs (for example, civic chambers).

Keywords: local self-government, citizen participation in local self-government, territorial body management, citizen counsels, quarter counsels

 

HISTORY OF THE STATE AND LAW

Zhabreev M. V.

Legal Regulation of Entrepreneurial Activity in the Russian Empire and the Urals in the Late XIX – Early XX Centuries

The author analyzes the regulation of the entrepreneurial activity in the Russian Empire and the Urals in the late XIX – early XX centuries from the historical and legal standpoint. Russian legislation concerning organization of functioning of the mining and metallurgical industries, as well as the definitions of the concepts of the handicraft industry, craft and trades were studied. The paper indicates the organizational legal forms and procedures for the creation of industrial enterprises, including special restrictions for foreign nationals associated with the production of weapons and ammunition for the Russian army. Examples of the opening and functioning of industrial enterprises in the Ural region, including enterprises with the participation of foreign investors, are indicated.

It was concluded that during the period under review the formation of the legislative framework in industry at the national level was taking place. This contributed to the rapid growth in the number of factories and manufactories, which in turn was a key factor in the commercial and industrial development of Russia.

Keywords: entrepreneurship, Russian empire, Ural region, legal regulation of the mining and metallurgical industries

 

Shamsumova E. F.

The Transformation of the Soviet Legal Education in the 1920s
and Mid-1940s and its Reflection in Domestic Literature of Those Years

The search for the optimal organization of the training of legal personnel in the young Soviet state was proclaimed one of the primary tasks in the conditions of the new ideological construction. The article shows the main directions of the transformation of Soviet legal education in the
1920s – mid-1940s. The reflection of these processes in the special literature of that time, in particular, in specialized periodicals, is also analyzed. The most important publications were contained in
the journals «Weekly Soviet Justice» and «Socialist Legality». Their authors were representatives
of the leading scientific community and statesmen, who revealed the needs of the educational process in the new conditions.

The aim of the undertaken work, among other things, is an attempt to objectively assess the problems of legal education in the first decades of Soviet power. It was then that its goals and objectives were formulated, political and legal, ideological, organizational and managerial, scientific and methodological structures were determined. Reforms in the field of legal education began in
1918, but they were hampered by both the lack of the material base and the experience of
scientific and theoretical research on this topic.

In the study, the author uses problem-chronological, system-structural, system-functional, formal-legal and comparative methods.

Keywords: higher education, legal education, training of legal personnel, legal institutes, educational plans, Soviet government, Soviet law, years of war, legal scholars