Social human rights and their maintenance in Republic North Ossetia - Alaniya
Legal regulation of rights and freedoms of a person and a citizen, according to article 71 of the Constitution of the Russian Federation. Regulation about the order of granting of gratuitous grants for residing in Republic Severnaya Ossetia - Alaniya.
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Social human rights and their maintenance in Republic North Ossetia - Alaniya
In the Constitution of the Russian Federation defines our state as social whose policy is directed on creation of the conditions providing worthy life and free development of the person. The embodiment into life of the given constitutional regulation is the duty of the state. It conditions the necessity of scientific development and realization of measures of social protection. The significant place among them occupies legal regulation and judicial protection of social human rights.
Legal regulation of rights and freedoms of a person and a citizen, according to article 71 of the Constitution of the Russian Federation, relates to exclusive conducting of the Russian Federation, and their protection is in joint conducting of the Russian Federation and its subjects (Article 72). Despite the above mentioned, bodies of the government of the subjects of the Russian Federation actively participate in legal regulation of rights and freedoms, especially social as in the Constitution of the Russian Federation there is no direct interdiction to it. Moreover, according to legal publications, "on the one hand, maintenance of legal protection of the rights and freedom is impossible without legal regulation, and on the other hand - establishment of rights and freedom in the constitution or in the charter of the subject of the Russian Federation is already an additional measure of legal protection by virtue of legal properties of the constitution and the charter" . Therefore the Parliament of Republic Severnaya Ossetia - Alaniya has made the right decision, having fixed in the Constitution of Republic Severnaya Ossetia - Alaniya, all rights and freedom of the person and the citizen and the guarantee of their maintenance stipulated by the Constitution of the Russian Federation, and in separate cases the Constitution of Republic Severnaya Ossetia - Alaniya gives the person wider social rights. Thus, according to article 38 of the Constitution of the Russian Federation the state protection is provided to motherhood, childhood and family and article 38 of the Constitution of Republic Severnaya Ossetia - Alaniya establishes far paternity as the object of social protection. Such legislative regulation is supported with the position of the President of the Russian Federation stated by him in the Message to the Federal Assembly in 2005 in which there has been specified the necessity to raise prestige both of motherhood, and paternity . While Article 41 of the Constitution of the Russian Federation provides the right on medical aid, the Constitution of Republic Severnaya Ossetia - Alaniya gives the right to the qualified medical aid. It also guarantees the free-of-charge secondary (full) education, whereas the Constitution of the Russian Federation guarantees only secondary education.
Alongside with the constitutional norms, the important role in regulation and, thus, in maintenance of social rights of the citizens is played by the current laws and other statutory-legal acts. It is necessary to agree with the Head of Administration of the President of the Russian Federation S.S. Sobyanin that adoption of statutory-legal acts in social sphere remains the priority at present for law enforcement activity of subjects of the Russian Federation . Realizing it, the regional bodies of the government carry out active law enforcement activity. Thus, the Parliament of Republic Severnaya Ossetia - Alaniya only for the last year and a half has adopted 15 laws providing social protection of the citizens. They in many respects provide rights of socially unprotected groups of the population of the republic: veterans, invalids, families having children - invalids, families of victims, etc. Thus, for example, the Law of Republic Severnaya Ossetia - Alaniya from March 5, 2005 No. 20-РЗ "About measures of social support of veterans" establishes the legal guarantees of social support of veterans for the purpose of creation for them of the conditions providing worthy life, vigorous activity, honour and respect in the society. Such guarantees are preservation of free-of-charge service in medical institutions, free-of-charge permits on sanatorium service, free-of-charge reception of land, free-of-charge fare of all kinds of city public transport (except for taxi) on the entire territory of republic, preferential payment (50%) of communal services, etc.
In the republic there are annually adopted target programs in social sphere ("Development of general medical practice", "Program Anti AIDS", "Program Child Health", "Oncology") for whose money resources are allocated by the law. In 2007 the law on the budget established the list of social programs ("Urgent measures against tuberculosis in Republic Severnaya Ossetia - Alaniya for the years 2006-2010", "Maintenance of population with drinkable water", "Improvement of conditions and labour safety", etc.) with allocation on the 25 million rubles.
In the republic great attention is paid to preventive maintenance of diseases caused by features of natural character, for example, diseases connected with deficiency of iodine. In this connection the Republican target program "Preventive maintenance of diseases connected with deficiency of iodine and others micronutries in feeding of the population of Republic Severnaya Ossetia - Alaniya for the years 2007-2011" is confirmed by the Law of the Republic Severnaya Ossetia - Alaniya from April 18, 2007 No. 12-РЗ. Besides the Law of the republic has confirmed the Republican target program "Social support of the invalids in Republic Severnaya Ossetia - Alaniya" for the years 2007-2009 for strengthening of social support and improvement of quality of life of invalids; assistance in decision of social, professional, economic, medical and legal problems of invalids in the society by maintenance of them with technical means of rehabilitation; improvement of quality of medical-social examination, etc.
The republic due to its own opportunities (the republican and local budgets), despite of all complexities connected with migratory processes, having place on its territory, tries to expand the volume of guarantees providing health care of the citizens that has been fixed in the republican Law from 28.0497 (in the wording from 19.07.06) "About health care of the citizens of Republic Severnaya Ossetia - Alaniya". We should also mention the laws of Republic Severnaya Ossetia - Alaniya "About the housing policy in Republic Severnaya Ossetia - Alaniya" from 27.10.06 No. 51-РЗ, "About measures of social support of rehabilitated persons and persons admitted injured from political reprisals" from 05.03.05 No. 19-РЗ, "About youth policy in Republic Severnaya Ossetia - Alaniya" from 14.01.03 (in the wording from 22.05.06), "About labour safety in Republic Severnaya Ossetia - Alaniya" from 15.03.99 No. 4-РЗ (in the wording from 22.05.06), "About payment of foster parents and privileges given to foster family and family of adoptive fathers (daughters)" from 21.07.04 No. 24-РЗ ( in the wording from 29.03.06).
It is necessary to note, that one of the first among the subjects of the Russian Federation the republic has founded the institute of the Plenipotentiary on child's rights according to the Regulation about the Plenipotentiary on child's rights at the Head of Republic Severnaya Ossetia - Alaniya, confirmed by the Decree of the Head of Republic Severnaya Ossetia - Alaniya from 16.10.02 No. 175a.
The similar statutory legal acts have been adopted also in 15 subjects of the Russian Federation (Moscow, Krasnodar territory, Ivanovo region and others, etc.), however, unfortunately, despite of the resolution of the Council of Federation of the Russian Federation from June 23, 2006 No. 199 - Federal Law containing the offer to found the institute of the Plenipotentiary on child's rights, the given institute is not still registered in the federal legislation.
The active role in protection of social rights is played by the Government of Republic Severnaya Ossetia - Alaniya which has for the last two years adopted 25 resolutions and 5 orders in the social sphere: the Resolution from 05.02.07 No. 15 " About confirmation of forms of documents for conducting by institutions of local government of the registration of the citizens requiring for premises, given on contracts of social hiring ", Resolution from 05.02.07 No. 28 "About payment of lump sum to adoptive fathers, trustees (trustees) and foster parents at taking the child to the family", Resolution from 23.09.05 No. 260 "About conformation of Regulations about the order of assignment and payment of the state address monthly grant to the citizens having children". And thus on social parameters the republic occupies the first place among the subjects of Southern federal district .
Protection of rights and freedoms, in joint conducting of the Russian Federation and its subjects, is realized not only with the help of legal regulation, but also by judicial protection. And all rights and freedoms both stipulated in the Constitution of the Russian Federation in the constitution (charter) of the subject of Federation, in the federal and regional laws, and not stipulated in statutory acts are subjected to judicial protection.
Protection of social human rights occupies the significant place in the activities of the constitutional (charter) courts of the subjects of the Russian Federation. For example, we mention the activity of the Constitutional Court of Republic Severnaya Ossetia - Alaniya formed according to Articles 98 and 1011 of the Constitution of the republic and relating to the additional guarantees of maintenance and protection of rights and freedoms of a person and a citizen. Thus, at request of the Vladikavkaz of public organization of invalids of Chernobyl of Russia, the Constitutional Court oft he republic has considered the case about the verification of constitutionality of regulation of item 3 of the time order of granting invalids with vehicles confirmed by the Resolution of the Government of Republic Severnaya Ossetia - Alaniya from July 30, 1999 No. 219а. The disputed regulations infringed rights of some categories of invalids to free-of-charge maintenance of them with special vehicles as the level of social guarantees has been reduced in comparison with that established by the federal laws. In particular, the disputed act determines only that part of invalids having medical and social indications and having no contra-indications to driving a special vehicle. Meanwhile, according to federal laws "About social maintenance of invalids in the Russian Federation" and "About social protection of citizens, undergone influence of radiation in the accident on the Chernobyl atomic power station", the specified vehicles are given irrespective of contra-indications to driving. The Constitutional Court of the republic has admitted the restrictive requirement not corresponding to the Constitution of Republic Severnaya Ossetia - Alaniya.
In 2006 the Constitutional Court of Republic Severnaya Ossetia - Alaniya has been petitioned by the citizen Sadzhaya M.Y, with the request about the verification of constitutionality of separate norms of the Regulation about the order of granting of gratuitous grants for residing in Republic Severnaya Ossetia - Alaniya and return to places of former residing of refugees and the compelled immigrants injured during the georgian-ossetic conflict in 1991 and temporarily residing in sanatoria "Ossetia" and "Redant" (confirmed by the Resolution of the Government of Republic Severnaya Ossetia - Alaniya from 21.02.2000 43 "About measures on acceleration of the process of removal of refugees and compelled immigrants from emergency buildings of sanatoria "Ossetia" and "Redant"). The Constitutional Court of Republic Severnaya Ossetia - Alaniya has come to the conclusion, that the norms of the disputed regulation regarding, establishing requirements about clearing by refugees and compelled immigrants of the occupied by them and members of their families of premises in the place of time accommodation one day prior to reception of the grant, and regarding establishing of the requirement about removal of the compelled immigrants as registered requiring improvement at reception of grants before actual housing do not correspond to the Constitution of Republic Severnaya Ossetia - Alaniya and, thus, infringe the right to housing of the specified persons.
Efficiency of judicial protection of the social rights in many respects depends on the structure of the subjects allocated with the right to initiate consideration of the case in court. In our opinion, first of all, they should be the citizens. However, the analysis of the legislation on the constitutional (charter) courts of the subjects of the Russian Federation shows, that the citizens as barriers of social rights, in the majority of the subjects of Federation do not possess the right to application to the constitutional (charter) courts not only with the request about illegality of this or that statutory legal act of the subject, but even with the complaint on infringement of their constitutional rights in the concrete case. Thus, in the Republic of Tyva the citizens are not the subjects of the right to application to the constitutional (уставный) court, as well as in Moscow, Kurgan region, Irkutsk region, the Tyumen region. According to the laws about the Charter court of Samara region, about the Constitutional court of Republic of Karelia by the law or statutory legal act the citizens are not allocated with the right to application with the complaint to the corresponding constitutional (charter) court on infringement of the constitutional rights. In many laws associations of citizens are not stipulated as subjects of the right with application to the constitutional (charter) courts, for example, in Republic Tyva (the Constitutional law from 04.01.03 No. 1300 "About the Constitutional Court of Republic Tyva"), in Republic Dagestan (the Law from 07.05.96 "About the Constitutional Court of Republic Dagestan"), in Republic Komi (the Law from 31.10.94 No 7-РЗ "About the Constitutional Court of Republic Komi"). right constitution grant ossetia
While organizations, unions, funds and other associations aspire (and it is proved by activities of the constitutional (charter) courts to protect first of all their members (participants) and, as a rule, they are socially unprotected groups of people: invalids, veterans, children, compelled immigrants, refugees.
The analysis of the legislation about the constitutional ( charter) courts shows, that the most ample opportunities of judicial protection of social rights by the citizens is given in Republic Severnaya Ossetia - Alaniya as it is the only subject of the Russian Federation in which they are allocated with the right to application to the constitutional court of the republic not only with the request about the verification of constitutionality of the law, statutory legal act issued by the Head of republic, by the Parliament and the Government of the republic, by ministries, the state committees, other bodies of the government and bodies of local self-management but also with the request on constitutionality of the statutory legal act of the public association, state and municipal establishment contradicting, in their opinion, the Constitution of the republic; with the request about interpretation of norms of the Constitution of Republic Severnaya Ossetia - Alaniya and about the verification of constitutionality of contracts and agreements. And, according to the activities of the Constitutional Court of republic, such ample opportunities allow not only to restore already infringed rights, but also to prevent their infringement by the statutory legal act. In conclusion we shall note, that in Republic Severnaya Ossetia - Alaniya legal maintenance of the social rights occupy the significant place which is supplemented with wide legislative opportunities of their judicial protection.
Owing to international non-recognition of Pridnestrovie (the Pridnestrovskaia Moldavskaia Respublika), named in the Western Europe Transnistria, its constitutional system (the Constitution and jurisprudence of its Constitutional Court created in 2002) still remains not enough to jurists of Western Europe. The aim of the given article is to present the given system in comparison with the French constitutional tradition (the Constitution of 1958 and other legislative texts of value applied by the Constitutional Council and both Supreme Courts - the State Council, the Arbitration Court), showing things in common and disagreements between both systems. The given research can cause, thus, reflections about the opportunity of mutual enrichment of the both constitutional systems compared.
1) The general reference to human rights, meaning more expanded sense in the Constitution of the Pridnestrovskaia Moldavskaia Respublika.
The French Constitution does not contain the formulation about the human rights, meaning individual rights and social rights, except for several common reflections about political parties and freedom of belief. The constitutional judges in 1971 considered, however, that the Declaration on human rights of 1789 (individual rights), and the preamble to the Constitution of 1946 (social rights) had the constitutional value. It is to be added that the European Convention on human rights has thre lawful value owing to the resolution of the State Council Nikolo of 1989.
Thus, recommendations in the question on human rights ordered in France and recognized in the Pridnestrovskaia Moldavskaia Respublika are appreciably comparable. We mean refusal from racial or religious discriminations (Article 17 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika), presumption of innocence under the legislation (Article 22), inviolability dwellings (Article 24), freedom of belief, (Article 27), media without censorships (Article 28), personal access of information (Article 29), the right to free moving (Article 25), freedom of worship and freedom of belief(Article 30), the right to application in court (Article 46), the principle of promulgation of laws (Article 63), publicity of proceeding, the principle of competitiveness (Article 85). All these elements are similar to lawful norms applied in France.
It is necessary to note, that Pridnestrovie has taken care of emphasizing duties of the citizens: "Realization of rights and freedoms should be inseparable from execution by the citizen and the person of the duties under the society and the state" (Article 47).
It is the successful initiative which reminds that the citizen is not the selfish consumer of the right and that he should always take into account interest of the collective and act depending on it. This idea is the basis of the French republican principles which, unfortunately, at present have tendency to disappearance.
The Pridnestrovskaia Moldavskaia Respublika is not as Jacobic as it is in France as it recognizes the right to speak in three languages including in the bodies of the power. Despite the recent struggle of defenders of regional languages in France, all of them have not been recognized yet at the constitutional level, and recently they have even decided, that the French language should be the language of the republic (frankly speaking, the linguistic uniformization in France is very old).
It is necessary to note, meanwhile, that in Pridnestrovie as against the western and international legislations there have not cancelled death penalty (Article 19 of the Constitution). It is, however, observed in Moldova, and in Ukraine overcame it in 2001. The given position is connected, probably, with almost martial law which opposes it to Moldova.
The difference of Pridnestrovie is that it adheres, mainly, to accent on social right, according to the Soviet heritage and the right on environment.
Article 26 establishes, that "motherhood and childhood, family should be protected by the state " and obliges able-bodied adult children to care of the invalid parents"Article 32 guarantees the right to participation in "local self-management", and Article 33 gives the right "to be united in trade unions, political parties and other associations, to take part in the mass movements not forbidden by the law". A number of formulations, emphasizes a number of collectives. Article 35 establishes, that "each person shall have the right to labor in conditions meeting requirements of safety and hygiene, in payment without any discrimination and not below the minimal size of payment established by the law, and also the right to personal protection against unemployment". The worker shall have the right to strike and the right to weekly rest. The word "work" in the Constitution of the Pridnestrovskaia Moldavskaia Respublika is used 19 times, and it is used only once in the French Constitution (7 times if to take into account very progressive preamble to the Constitution of 1946 included in the block of constitutionality of the Constitution of 1958), and 8 times in the Constitution of Russia.
The right to life, to free-of-charge education, to health care, to dwelling is definitely protected by the Constitution. Article 37 forbids environmental pollution by enterprises ("Realization of the right to property should not cause harm to environment"), and Article 50 concerning the citizens ("Each person is obliged to take care of environment").
The most typical for the Soviet epoch is preservation of Article 5: "land, bowels, waters, forests, air, and other natural resources shall be objects of exclusive property of the state".
It is strange for the western jurists, but this choice dictated by long shortage of foreign investments, could make, finally, good immune protection in relation to accumulating wave of the world neoliberalism. In France the public opinion is very much adhered to the right to housing, to labor, to health which lesser and lesser is observed, and it would like to see them confirmed in the Constitutions (as it has been recently made with the right to environment). The Constitution of the Pridnestrovskaia Moldavskaia Respublika could serve a model in this part even partially.
2) The different choice concerning the role of parliament and the place, allocated to people and collectives
As against Ukraine, Moldova and even Russia (Article 111 of the Constitution of Russia) according to which the government cannot be appointed without coordination with the Parliament, the Pridnestrovskaia Moldavskaia Respublika has supported the presidential American model. France also follows the parliamentary circuit as it has the prime minister who is accountable to the Parliament (even if the President of the Republic has prerogatives stronger than in other parliamentary systems, that is the inheritance of the General d'Gaulle). France today balances between the choice: for strengthening of parliamentary and for the presidential mode.
The presidential choice in Pridnestrovie, apparently, is not the subject of debate.
Its organization corresponds to the classical circuit of all presidential systems.
From the French point of view, meanwhile, some realities are quite surprising.
On the part of the legislative power the Pridnestrovskaia Moldavskaia Respublika has chosen the one chamber system while in France the two chamber system has been existing for more than a century already.
The one chamber Supreme Soviet has a number of levers of authority, probably sometimes even more, than it is commonly given to the parliaments in other countries. The Parliament of Pridnestrovie (the Supreme Soviet) realizes control of constitutionality of acts adopted by local councils (that in France is equivalent of control of legality of acts of local authorities of Prefects). It can even oblige local Councils to pass acts according to the legislation and to terminate them in case of refusal (Article 62 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika). It is necessary to note, that the similar prerogatives are recognized and the Ukrainian Parliament (the Supreme Rada) by Article 85 of the Constitution of this country, and in the Parliament of Moldova (Article 66 of the Constitution of this country).
They would be perceived in France as infringement of the principle of independent management of local authorities (that, however, is recognized in the Pridnestrovskaia Moldavskaia Respublika in Article 79 of the Constitution). In France since 1983 the right to dissolution has been located to prefects, and is provided by the law, by jurisprudence of the State Council, and only the administrative judge is allocated with the authority to adopt the statutory act or to cancel it. The principle of restriction of heads of local bodies by the judge, instead of the parliament guarantees observance of local self-management.
It is necessary to note that the deputies have not been elected depending on political parties as it is in the majority of other countries. In the Pridnestrovskaia Moldavskaia Respublika candidates to deputies are determined by collectives of voters that can favor to the national political parties having the programs, focused on the public interest. To tell the truth, in the Pridnestrovskaia Moldavskaia Respublika the multi-party system is gradually arising. But it should be necessary to put the question about opportunities of development of the given process, not being equaled at the same time, completely on the foreign experience.
In the Constitution of the Pridnestrovskaia Moldavskaia Respublika everything is made, so that the deputies would seriously correspond to the functions. Absence of the deputy of the Supreme Soviet at sessions of the Supreme Soviet as well as in the working bodies without the sufficient grounds means the opportunity of application to him of the sanctions fixed in the law (Article 60) and resolutions, and it could be an example for France and the European Parliament.
Resolutions allocating the Parliament with the powers of the amplified control over other bodies of the state in the question on examination are very significant. But they do not make any reference to courts of inquiry.
As to executive authority we can note, that it is weaker than in the USA as it does not provide imposing the absolute veto on laws, and in some respects, than in France as in our country there exist some procedures (Article 49-3 of the French Constitution), compelling the Parliament to pass laws.
At the same time the executive authority in Pridnestrovie is stronger in relation to the judicial power, than in France as the President of Pridnestrovie can appoint judges without preliminary passage of competition among lawyers. This type of resolution (order) can appear dangerous as the appointed judge becomes obliged (debtor) in relation to the President who has appointed him to the position. The competition, at least, is the corporate guarantee which gives the judge understanding, that he is obliged by the position only to himself. The judicial authority of the Pridnestrovskaia Moldavskaia Respublika requires the note in the Constitution about the staff (personnel) which would operate in full independence (that in France is named the Supreme Council of magistracy and which has the equivalent in the majority of western countries).
Weakness of the judicial power undoubtedly is the weak point in the Constitution of the Pridnestrovskaia Moldavskaia Respublika.
It is evident, however, that the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika is applied to correct this lack. And in its latest decisions the Constitutional Court forbids the executive authorities to impose sanctions without court decision. But the judicial power would undoubtedly be more powerful, if its independence has been better guaranteed by the Constitution at the level of assignment of judges.
But the strong point of the Constitution of the Pridnestrovskaia Moldavskaia Respublika is the reference to the direct power of the people and national collectives, namely: the question about the legislative initiative (Article 64 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika), the question on the referendum (Articles 1 and 31) and, mainly, changes of the Constitution (Article 101). These are those regulations which have no equivalent in the neighboring countries of the Pridnestrovskaia Moldavskaia Respublika and which very seldom exist in some European countries.
The given regulations remind the Constitution of France of 1793 which have never been applied. They are significant. It would be important to decide how these positions are carried out, and how they could be profound. Thus, it would not be interesting to establish the system of response of elects and presidents in the middle of the term of the mandate on the initiative of the people as it is at present in Venezuela? Or to enter the toss-up at assignment of some administrative, judicial, political positions?
Obviously the role, allocated to people, should not be the source of anarchy. Especially, concerning the judicial power. But our Constitution allows everyone to press on the Constitutional Court at any time by laws or presidential decrees, (that never happens in France). But these regulations if they are completely applied, can allow everyone again (constantly) to bring attention up to the question on the law and order. And in fact vulnerability of the law and order is the danger to safety of the citizens and to the stability of their conditions of life. This problem has been solved by the French jurisdiction with establishment of exact terms of submission of petitions (applications).
Recognition of forms of direct participation of citizens in the decision or dispute of the adopted decision concerning justice is, undoubtedly, the very important element of the modern Constitution of the Pridnestrovskaia Moldavskaia Respublika which puts it among the most progressive constitutions of Europe.
The brief review of the constitutional system of the Pridnestrovskaia Moldavskaia Respublika, without taking into account daily functioning of establishments, is based only on the legal contents, according to the Constitution and to the jurisprudence of the Constitutional Court. From the point of view of the French constitutional inheritance, the legal system of the Pridnestrovskaia Moldavskaia Respublika is an interesting, original system and despite some defects, has numerous strong points which could be successfully introduced by other countries. We can wish, that in realization of the prerogatives the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika could promote in the nearest future improvement of the constitutional system of the republic, caring about preservation of their function of division of the powers and about observance of rights of the citizens, and about their opportunities to increase greatly public property
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