FORMS OF PROTECTION OF CHILD'S RIGHTS IN THE RUSSIAN FEDERATION
The protection of children's rights in the Russian Federation is one of the most pressing problems. In accordance with the Constitution of the Russian Federation, a child from birth belongs to and is guaranteed by the state the rights and freedoms of man and citizen established by the Constitution of the Russian Federation
Having declared the priority of the rights and freedoms of man and citizen, including children, the Russian Federation also assumed the responsibility to protect the rights of citizens of any age, to protect them from any unlawful interference or restriction (Article 2 of the Constitution of the Russian Federation).
The legislation of the Russian Federation lays down the foundations of state guarantees for the implementation of the protection of children’s rights.21
The protection of children's rights should be understood as the principles and fundamentals of the activities of public authorities, state, international and public organizations enshrined in legislation, aimed at eliminating obstacles to the implementation of children's rights, as well as restoring violated rights and punishing those responsible for violating them.
It is customary to distinguish two main forms of protection of rights: jurisdictional and non-jurisdictional. Jurisdictional form of protection is the activity of state-authorized bodies for the protection of violated or disputed rights (court, prosecutor's office, guardianship and trusteeship authority, internal affairs body, registry office, etc.). Within the jurisdictional form of protection, in turn, there is a general (judicial) and special (administrative) procedure for the protection of violated rights.
21 “Constitution of the Russian Federation” (adopted by popular vote on December 12, 1993) (taking into account amendments introduced by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation dated December 30, 2008 N 6-FKZ, dated December 30, 2008 N 7-FKZ, dated February 5, 2014 N 2-FKZ, dated July 21, 2014 N 11-FKZ)
A non-jurisdictional form of protection of rights is the actions of citizens and non-governmental organizations to protect rights and interests protected by law, which they carry out independently, without seeking help from the competent authorities. Such actions are called self-defense of rights.22
In this article I would like to consider in more detail the jurisdictional form of protecting the rights of the child.
Protection of the rights of the child according to Art. 8 of the Family Code of the Russian Federation is carried out in court according to the rules of civil proceedings, and in cases provided for by the Family Code of the Russian Federation, by state bodies or guardianship and trusteeship authorities. The possibility of judicial protection of the rights of the child is considered one of the main principles of family law, which also complies with the requirements of Art. 46 of the Constitution of the Russian Federation, which guarantees judicial protection of the rights and freedoms of every citizen of the Russian Federation.23
Judicial protection of the interests of the child should be understood as carried out in civil proceedings and based on constitutional principles, principles of civil, family, civil procedural law, as well as moral principles, the activities of the courts aimed at restoring (recognizing) the violated (challenged) interests of the child, through the application of the provided civil and family legislation methods of protection.
Protection of the violated rights of a child occurs in a court of general jurisdiction in the manner of a claim or proceeding arising from administrative-legal relations. The grounds on which it is possible to go to court to protect the rights of a child are very diverse and, as a rule, are indicated in the Family Code of the Russian Federation, for example: establishing paternity and maternity; challenging paternity and maternity; resolution of disagreements between parents about the upbringing and place of residence of the child; exercise of parental rights by a parent living separately from the child; eliminating obstacles to the child’s communication with relatives; protection of parental rights; deprivation of parental rights; restoration of parental rights; restriction of parental rights; collection of alimony for minor children and adult disabled children; change in the amount of alimony and exemption from payment of alimony collected in court. The court is obliged to determine which parent the child will live with after the divorce and from which of them and in what amounts child support will be collected if there is no agreement between the spouses on these issues. The refusal to register a marriage or the appointment of a guardian (trustee) by the guardianship and trusteeship authorities may be appealed to the court. Any violated (challenged) subjective right of a child can be protected in court. Thus, the law places within the competence of the court making decisions on the most important issues in the field of protecting the rights of the child.24
As for the administrative procedure for protecting the violated rights of a child, in accordance with Article 8 of the Family Code of the Russian Federation, the protection of the rights of the child is carried out by the court according to the rules of civil proceedings, and in cases provided for by the Family Code, by state bodies or guardianship and trusteeship authorities.
Article 8 of the Family Code of the Russian Federation does not indicate state bodies that protect family rights. The corresponding decisions are formulated in a number of special norms of the Family Code of the Russian Federation. Thus, in accordance with Article 122 of the Family Code of the Russian Federation, executive authorities of the constituent entities of the Russian Federation and federal executive authorities determined by the government of the Russian Federation take part in protecting the rights and interests of a child left without parental care.
In addition, the guardianship and trusteeship authority protects family rights in the following cases:
— if disagreements arise between the child’s guardian and the minor parent (Article 62 of the IC of the Russian Federation);
- if contradictions arise between the interests of parents and children (Article 64 of the IC of the Russian Federation);
- if there are disagreements between parents regarding the upbringing of the child;
— when a child is taken away due to an immediate threat to the life or health of the child (Article 77 of the IC of the Russian Federation).25
Decisions made administratively may be appealed to the court. In accordance with Articles 11.14 of the Civil Code of the Russian Federation and Article 8 of the Family Code of the Russian Federation, the form of protection of family rights is jurisdictional - judicial protection (general procedure) and administrative protection - special procedure. Quite often, disputes arising in connection with violations or other attacks on family rights are considered in court. This provision is explained by the fact that the courts administer justice, the objectivity of which is ensured by the fact that, according to Article 1 of the Federal Constitutional Law of the Russian Federation “On the Judicial System of the Russian Federation,” the judicial power is independent and independent from the legislative and executive powers.26
22Nechaeva A.M. “Protecting the interests of the child: family legal prerequisites” Moscow 2010
23 “Constitution of the Russian Federation” (adopted by popular vote on December 12, 1993) (taking into account amendments introduced by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation dated December 30, 2008 N 6-FKZ, dated December 30, 2008 N 7-FKZ, dated February 5, 2014 N 2-FKZ, dated July 21, 2014 N 11-FKZ)
24 “Family Code of the Russian Federation” dated December 29, 1995 N 223-FZ (as amended on July 13, 2015)
Judicial protection is recognized as the main form of protection of the rights of the child. The judicial procedure for protecting the rights of the child has undoubted advantages, and most importantly, it serves as a way for the state to ensure the interests of the child. It is no coincidence that divorce, if the spouses have common minor children, is carried out only in court (clause 1 of article 21 of the IC of the Russian Federation). In addition, it is the court that resolves disputes related to the upbringing of children (deprivation, limitation of parental rights, restoration of parental rights, abolition of restrictions on parental rights, establishment of adoption, cancellation of adoption, etc.). And finally, in the absence of an agreement, family members have the right to go to court with a demand for alimony (Article 106 of the Family Code of the Russian Federation).27
The judicial form of protection of children's rights in the Russian Federation has a number of features. This is due to the fact that, for obvious reasons, children are not able to independently defend their rights and defend their own interests. Therefore, in the judicial process, the interests of the child are represented by his legal representatives (parents, adoptive parents, guardians and trustees, adoptive parents), although the court is obliged to involve minors themselves aged 14 to 18 years in the case. In accordance with the Civil Procedure Code of the Russian Federation, in cases provided for by a special federal law, in cases arising from family and other legal relations, a minor aged 14 to 18 years has the right to personally defend in court his rights and interests protected by law. Involving parents, adoptive parents or guardians (trustees) in such cases to provide assistance depends on the discretion of the court (Article 37 of the Civil Procedure Code of the Russian Federation). An exception to this rule are cases when a minor is recognized as fully capable before reaching the age of majority upon emancipation (Article 27 of the Civil Code of the Russian Federation) or upon marriage (Clause 2 of Article 21 of the Civil Code of the Russian Federation). 28
There is a widespread point of view about the priority nature of the judicial order of protection of rights over the administrative one. Supporting this point of view, Yu.F. Bespalov talks about expanding the scope of judicial protection of the child’s family rights and establishing judicial protection as its main jurisdictional form. To substantiate his position, the author, among others, cites the following considerations:
— Failure of administrative protection to ensure the full restoration of the rights and legitimate interests of children.
-The need to consolidate in international documents in the field of human rights the principle of priority protection of the rights and interests of the child by the competent body of the state - the court.
— The child’s inability to independently defend his rights (with certain exceptions).
— The expediency of strengthening the independence of the judiciary.
— Lack of another more effective and fair form of protection of rights, in particular of the child.29
Protection of the child's family rights in court is carried out directly and indirectly. In the first case, we are talking about disputes directly related to the family education of a minor, which includes cases: Russian Federation);
— to determine the place of residence of children when their parents live separately (Part 3 of Article 65 of the RF IC);
— to ensure the child’s right to communicate with a parent living separately from him (Part 2 of Article 66 of the Family Code
— to protect the right to communicate with other close relatives (Part 3 of Article 67 of the RF IC);
— on deprivation of parental rights (Article 70 of the RF IC);
— on restoration of parental rights (Article 72 of the RF IC);
— on restriction of parental rights (Article 73 of the RF IC);
— on the abolition of restrictions on parental rights (Article 76 of the RF IC);
26 Federal Constitutional Law of December 31, 1996 N 1-FKZ (as amended on February 5, 2014) “On the Judicial System of the Russian Federation”
27 Family Code of the Russian Federation" dated December 29, 1995 N 223-FZ (as amended on July 13, 2015)
28 “Civil Code of the Russian Federation (Part One)” dated November 30, 1994 N 51-FZ (as amended on July 13, 2015) (as amended and supplemented, entered into force on October 1, 2015)
— on the adoption of a child (Article 125 of the RF IC);
- on the cancellation of adoption (Article 140 of the RF IC).
Indirect judicial protection of children's rights is carried out with the help of family law norms that are not directly related to the family upbringing of the child. These include cases:
— to establish paternity in court (Article 49 of the RF IC);
- upon the court’s establishment of the fact of recognition of paternity (Article 50 of the RF IC); related to challenging paternity (maternity) (Article 52 of the RF IC);
— on disputes about the protection of property rights of children (Part 2 of Article 60 of the RF IC);
— to establish and recognize paternity by a minor parent (Part 3 of Article 62 of the RF IC);
— for the collection of alimony in court (Part 2 of Article 80 of the RF IC).
This list is not exhaustive. In addition, indirect protection of the rights of the child can be carried out with the help of other branches of legislation (civil, administrative, criminal, labor, etc.). Examples in this case can be the norms of housing legislation concerning the procedure for transferring ownership of residential premises to orphans and children without parental care, the procedure for the privatization of residential premises, and the eviction without providing other premises of persons deprived of parental rights. thirty
Thus, the judicial procedure for protecting the rights of the child can be characterized by such positive features as openness and adversarialness of the process, the obligation to involve minors in the consideration of cases when they reach 14 years of age, and a wide range of issues that the court can resolve when resolving cases on the family rights of a child.
The protection of the rights of the child in an administrative manner is carried out by law enforcement agencies and guardianship authorities (Article 8 of the RF IC).
The first include:
— Prosecutor's office,
- Internal affairs bodies.
The prosecutor, protecting the rights of children, uses the following methods:
- filing a claim for deprivation of parental rights (Article 70 of the Family Code), restriction of parental rights (Article 73 of the Family Code), and cancellation of the adoption of a child (Article 142 of the Family Code);
— presentation to the court, guardianship and trusteeship authority of an application demanding restoration (recognition) of the violated (challenged) right of the child (Article 21 of the Law “On the Prosecutor’s Office of the Russian Federation”);
- directly participating in court consideration of cases on the protection of children’s rights (Article 35 of the Law “On the Prosecutor’s Office of the Russian Federation”; Articles 72, 73, 125, 140 of the RF IC);
— introducing a warning about the inadmissibility of violating the rights of the child in the future and a proposal to eliminate violations of the law (Article 24, Article 25 of the Law “On the Prosecutor’s Office of the Russian Federation”);
— protesting acts of other administrative bodies that are directly related to the protection of children’s rights (if there are grounds provided for by law (Article 23 of the Law “On the Prosecutor’s Office of the Russian Federation”)).31
The protection of the rights of the child in the family is also within the competence of the Commission on Minors' Affairs and the Protection of Their Rights. According to Article 11 of the Law “On the Basics of the System for the Prevention of Neglect and Juvenile Delinquency,” the responsibilities of these commissions include:
— filing a claim in court for deprivation and limitation of parental rights;
— implementation of measures to protect and restore the rights and legitimate interests of the child, identify and eliminate the causes and conditions that contribute to their neglect and homelessness;
— organization, if necessary, of control over the conditions of education, training, and maintenance of minor children;
— preparation of materials submitted to the court on issues related to the protection of the rights of the child in the family.32
In accordance with Article 121 of the Family Code of the Russian Federation, guardianship and trusteeship authorities identify children left without parental care, keep records of such children and, based on the specific circumstances of the loss of parental care, choose the forms of their placement, and also carry out subsequent monitoring of the conditions of their maintenance and upbringing and education. In addition, the guardianship and trusteeship authorities: file a claim for deprivation of parental rights, restriction of parental rights, act as a defendant in cases of restoration of parental rights, abolition of restrictions on parental rights, give opinions on cases related to the establishment of adoption, cancellation of adoption, give opinions on disputes related to raising a child in a family, in accordance with Article 79 of the Family Code of the Russian Federation, participate in the execution of court decisions in cases related to raising children.33
30 Family Code of the Russian Federation" dated December 29, 1995 N 223-FZ (as amended on July 13, 2015)
31 Federal Law of January 17, 1992 N 2202-1 (as amended on July 13, 2015) “On the Prosecutor’s Office of the Russian Federation” (as amended and supplemented, entered into force on September 15, 2015)
32 Federal Law of June 24, 1999 N 120-FZ “On the fundamentals of the system for the prevention of neglect and juvenile delinquency”
In addition to protecting the rights of the child at the national level, it is possible to protect it with the help of international protection mechanisms based on international regulations (Convention on the Rights of the Child - November 20, 1989), which, in accordance with Part 4 of Article 15 of the Constitution of the Russian Federation, are part of the legal system of the Russian Federation, and having prejudicial significance.
Another international legal form of judicial protection of the rights of the child is his appeal to the European Court of Human Rights. If this court finds that the applicant's rights have been violated, monetary compensation may be paid to him, and the recommendations of the Court are binding on the respondent state. Usually the interests of children are represented before the European Court by their parents, but if for some reason this is not possible, the child can use the assistance of a lawyer or a public organization, in accordance with national legislation.34
As a result, the protection of children's rights in the Russian Federation is one of the most pressing problems. A special place in the system of child support measures is occupied by legal norms that establish the possibility of using all measures and methods existing in reality to ensure the normal spiritual and physical development of the child. This is, in the most general form, an explanation of the importance of legal problems of ensuring the interests of the child. We are talking about a wide range of legal means of protecting the child, especially since their prerequisite is legislative acts that are unequal in their sectoral affiliation, each of which in one way or another, directly or indirectly, serves, or can serve as a legal instrument that protects the rights of children.
Today, the mechanism for protecting the rights of the child in the Russian Federation and throughout the world is a system of social and legal means used to ensure the realization of his rights.
In pursuance of constitutional principles, current legislation creates the necessary system for protecting the interests of children. Relevant legislative acts are adopted, guarantees and norms for the implementation of guarantees are prescribed, programs are developed at the federal and regional levels, mechanisms and institutions are created aimed at implementing these guarantees and norms, practice is developed, institutions and norms are improved, additional conditions are created, and adjusted in accordance with changes. economic, social and other circumstances in the state and in the world as a whole.
The main conclusion is that the state, by legally establishing guarantees for the protection of the rights and interests of the child, strives to make their lives safer, more convenient, and calmer, taking into account the norms of international law and national specifics.
33 Family Code of the Russian Federation" dated December 29, 1995 N 223-FZ (as amended on July 13, 2015)
34 Avtonomov A. S. “International standards in the field of administration of justice.” Moscow 2007
Bibliography
1. Avtonomov A.S. "International standards in the administration of justice." Moscow 2007
2. “Civil Code of the Russian Federation (Part One)” dated November 30, 1994 N 51-FZ (as amended on July 13, 2015) (as amended and supplemented, entered into force on October 1, 2015)
3. “The Constitution of the Russian Federation” (adopted by popular vote on December 12, 1993) (taking into account the amendments introduced by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation dated December 30, 2008 N 6-FKZ, dated December 30, 2008 N 7-FKZ, dated February 5, 2014 N 2-FKZ, dated July 21, 2014 N 11-FKZ)
4. Nechaeva A.M. “Protecting the interests of the child: family legal prerequisites” Moscow 2010
5. Features of the consideration and resolution of cases on the protection of the family rights of a child. Tutorial. – Moscow, 2008
6. Family Code of the Russian Federation" dated December 29, 1995 N 223-FZ (as amended on July 13, 2015)
7. Federal Law of June 24, 1999 N 120-FZ “On the fundamentals of the system for preventing neglect and juvenile delinquency” (as amended and supplemented, entered into force on July 30, 2015)
8. Federal constitutional law of December 31, 1996 N 1-FKZ (as amended on February 5, 2014) “On the judicial system of the Russian Federation”
9. Federal Law of January 17, 1992 N 2202-1 (as amended on July 13, 2015) “On the Prosecutor’s Office of the Russian Federation” (as amended and supplemented, entered into force on September 15, 2015)
Concepts: child, young child, parent
Before discussing further the rights of the child, it is necessary to define the following concepts:
a child is a person under 18 years of age (Article 54 of the Family Code of the Russian Federation);
a young child is a minor under 14 years of age (Article 28 of the Civil Code of the Russian Federation);
parents are those persons who are obliged to take care of children and their upbringing (Article 38 of the Constitution of the Russian Federation).
Also quite often there are concepts that are not defined by law, but are defined by law enforcement practice. These concepts include:
