Everyone has the right to individuality. Every child has the right to individuality. The right to your own opinion
CHILD'S RIGHTS TO INDIVIDUALITY
A.M. SLAVE
Rabetz A.M., Doctor of Law, Professor of the Russian State Social University, Head. Department of Family and Juvenile Law.
Despite the fact that the specific rights of the child in the current Constitution of the Russian Federation, including his right to individuality, are not directly enshrined, it should be stated that the child’s right to individuality represents his status right and is an integral element of a special constitutional legal status child's personality. To substantiate this conclusion, it is appropriate to provide the following evidence.
Firstly, in accordance with Art. 15 of the Constitution legal system The Russian Federation includes generally recognized norms of international law, enshrined in international legal acts to which the Russian Federation is a party, as well as international treaties of the Russian Federation. Moreover, these acts of international law have priority, which is enshrined not only in the Constitution, but also in current legislation, in particular in Art. 6 IC RF. The child’s right to individuality is provided for by the UN Convention on the Rights of the Child, to which, as is known, Russia is a party. Secondly, in Art. 7 and 38 of the Constitution, as one of the fundamental sectoral principles of family law of the Russian Federation, the principle of state protection and protection of the family, motherhood, paternity and childhood is established. The concept of “childhood” seems to have many meanings. This is not only a special biological, mental and social state determined by the age of the human person, but also a special legal state associated with the initial period of formation of the legal status of the individual. During this period, the child must be endowed with special rights determined by the specifics of age, and special means of their implementation and protection. Thirdly, while enshrining in Chapter 2 the fundamental rights and freedoms of man and citizen, the Constitution does not at all deny the existence of other rights and freedoms, and therefore, indirectly recognizes the child’s right to individuality.
The child's right to individuality includes a number of simpler rights, in particular the right to know (as far as possible) his blood relatives, including his birth parents, his ethnic origin, his mother tongue, his religion, culture, etc. This right is closely related to other personal rights included in the special legal status of the child, such as the right to live and be raised in a family that is better able to preserve the child’s individuality than children’s educational institutions. The right to individuality is also closely related to the right to a name and to change it, with the right to express one’s opinion on all issues affecting one’s interests (although this latter is rather an integral element of the child’s right to protection).
It seems unnecessary to prove the importance of recognition, observance, protection and protection of this right not only for the formation of the personality of a particular child, but also for society as a whole, for preserving the diversity of the ethnic environment in such a multinational state as the Russian Federation, its unique gene pool, which is currently is under the destructive influence of a number of objective and subjective factors. It is clear that the right itself cannot ensure the preservation of the individuality of each individual child and the gene pool of Russia as a whole. This requires radical economic and organizational measures by the state at all levels of government, careful attitude towards the personality of each child, each ethnic environment, each cultural phenomenon, etc., which is not always the case in practice, despite the presence of a number of federal target programs, including the presidential level, such as the “Children of Russia” program with all its subprograms. At the same time, one should not underestimate the role of law in solving these problems, its specific impact on public policy in relation to children, both law-making, especially rule-making, and law enforcement activities.
A special role in ensuring the implementation and protection of the child’s right to individuality belongs to the court as a body whose activities are precisely related to the protection and protection of the subjective rights and legally protected interests of children. It is usually not customary to link the activities of the court with the implementation of any rights. However, in this case, when making, for example, a decision on the adoption of a child, the court essentially plays the main role in the implementation of a whole range of his rights: the right to live and be raised in a family, the right to individuality, to protection, etc. Right individuality is implemented with the help of the court and in cases where the court listens to the child’s opinion on issues relating to his position in the family: his consent or disagreement to adoption, to the restoration of parents in parental rights, to changing his last name, first name and patronymic, if he has reached the age of 10 years, an opinion about which parent he would like to live with in the event of separation of the latter, etc.
Unfortunately, this activity of the court does not always meet the hopes of society, and is not as effective as all those who are directly interested in the implementation and protection of the rights and interests of children, including the children themselves, their parents and persons in their stead, would like. Several reasons can be cited to explain the very low efficiency of this area of judicial activity. Firstly, the problems lie in the imperfection of the rules of substantive law applied by the courts when considering this most complex category of cases. Secondly, the highest judicial authorities, primarily the Plenum of the Supreme Court of the Russian Federation, designed to ensure accurate and uniform interpretation and application of laws throughout the Russian Federation, do not always grasp the requirements of the time and provide the courts with a clear and timely orientation. Thirdly, many problems arise due to the imperfection of the mechanism of the judicial system itself, as well as the determination of the jurisdiction of disputes about children. It is advisable to give at least a brief analysis of the action of each of these reasons.
It is quite clear that the child’s right to individuality is realized to the maximum extent when he lives and is raised in his family in which he was born, since it is in the family that all national, cultural, religious and other traditions are preserved and passed on from generation to generation; It is there that the child learns his native language, native religion and culture almost from infancy. Therefore, removing a child from his own family and placing him in another family should not be in words (since this is directly stated in the law and in the acts of its interpretation), but in reality as a measure of last resort, when the court has all the evidence that no other measures can be taken. adopted by the authorities for the protection of children's rights did not produce the desired results. However, as statistics show, deprivation of parental rights has become a widespread phenomenon. A significant part of court decisions do not even contain references to the fact that any work was carried out with the child’s parents, for example, the reasons for trouble in the family were found out, the reasons for abandoning the child, they were provided with psychological assistance, etc. Currently, such help is extremely necessary for many parents who are confused because they find themselves below the poverty line, which often leads to breakdowns. Extreme laconicism, scant motivation in court decisions in the cases of deprivation I studied parental rights suggests that this procedure is carried out exclusively formally in order to adopt a child as soon as possible, which in at least half of the examined adoption cases ends in the removal of children from the Russian Federation. It is necessary to especially pay attention to the fact that with this approach to considering the case of “caring” for a child, not only his right to live and be raised in his own family, but also his right to individuality is violated. It turns out that enshrined in Part 1 of Art. 123 of the RF IC, the principle of preserving the individuality of a child left without parental care during his placement remains only a declarative norm and in practice in many cases does not work.
The solution to this problem is seen in the fact that the time has come to make additions to the current Resolutions of the Plenum Supreme Court RF dated May 27, 1998 and July 4, 1997, in which the courts are directed to ensure that in cases of deprivation of parental rights, the courts collect, verify and evaluate evidence that with parents whose behavior towards their children is illegal, work was carried out to provide them with assistance and support, if necessary, or preventive measures were taken before claims were brought to deprive them of parental rights. When considering cases of adoption of Russian children by foreign citizens, courts must request objective data indicating the impossibility of placing the child in a family within the Russian Federation.
It seems that, taking into account the very unfavorable consequences of limiting parents' parental rights provided for by law, these cases should be removed from the jurisdiction of justices of the peace and transferred to federal courts of general jurisdiction, since in many cases justices of the peace do not have the necessary level of legal and psychological training and do not have sufficient experience to consideration of such a complex category of cases. It is also necessary to exclude from Art. 69 of the RF IC, such grounds for deprivation of parental rights as chronic alcoholism or chronic drug addiction of parents, since this allows the courts to formalize to the extreme the process of considering cases of deprivation of such parents of parental rights, not to discuss the question of whether there are signs of unlawful behavior in the actions of the parents , and make decisions that fatally affect the fate of people solely on the basis of the conclusion of a narcologist, which is not particularly difficult for interested parties to obtain in the conditions of flourishing corruption in modern Russian society. It is also necessary to make additions to Chapter 19 of the RF IC and to the corresponding chapter of the Code of Civil Procedure of the Russian Federation, which provide for the mandatory notification of the day of the hearing of the case of the relatives of the child in respect of whom the case of adoption by foreign citizens is being considered, having requested information about the presence of relatives from the state data bank on children left without parental care.
Finally, it is necessary to expand the artificially narrowed circle of Russian citizens who may be candidates for adoptive parents or who may otherwise accept a child to be raised in their family. The point is that the List of diseases for which a person cannot take a child into his family, approved by the Decree of the Government of the Russian Federation of May 1, 1996, includes injuries or diseases that lead to disability. Thus, persons recognized as disabled cannot be educators of other people’s children, regardless of whether they pose a danger to them, and regardless of the fact that they very successfully raise or have raised their own children or are educators by virtue of their profession: psychologists, teachers, etc. .p. The current family legislation of the Russian Federation prefers to send children outside the Russian Federation, but prohibits transferring them to persons suffering from diseases that, although leading to disability, do not pose any danger to the child. The law should provide that in such cases, courts when considering adoption cases or guardianship and trusteeship authorities when transferring a child into guardianship or into a foster family can individually, taking into account the specific circumstances of the case, decide on the possibility of transferring children to such persons for upbringing.
In conclusion, it should be especially emphasized that through the joint efforts of the legislator and the highest judicial authorities, it is necessary to stop the mass removal of children from Russia and take all measures available in the arsenal of the legislative and judicial authorities to ensure the practical implementation of the child’s right to preserve his individuality, which, along with other measures will greatly contribute to stopping the process of depopulation of the Russian people and educating Russian children either as Ivans who do not remember their kinship, or as citizens and patriots of other countries.
LINKS TO LEGAL ACTS
"CONSTITUTION OF THE RUSSIAN FEDERATION"
(adopted by popular vote on December 12, 1993)
"CIVIL PROCEDURE CODE OF THE RUSSIAN FEDERATION" dated November 14, 2002 N 138-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on October 23, 2002)
"FAMILY CODE OF THE RUSSIAN FEDERATION" dated December 29, 1995 N 223-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on December 8, 1995)
DECREE of the Government of the Russian Federation dated 01.05.1996 N 542
"ON APPROVAL OF THE LIST OF DISEASES IN THE PRESENCE OF WHICH A PERSON CANNOT ADOPT A CHILD, TAKE HIM UNDER CUSTODY (GUARDIANESS), OR TAKE HIM INTO A FOSTER FAMILY"
DECISION of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 N 10
"ON THE APPLICATION OF LEGISLATION BY COURTS IN THE RESOLUTION OF DISPUTES RELATED TO THE EDUCATION OF CHILDREN"
DECISION of the Plenum of the Supreme Court of the Russian Federation dated July 4, 1997 N 9
"ON THE APPLICATION OF LEGISLATION BY COURTS WHEN CONSIDERING CASES ON ESTABLISHING ADOPTION"
"CONVENTION ON THE RIGHTS OF THE CHILD"
(approved by the UN General Assembly on November 20, 1989)
(came into force for the USSR on September 15, 1990)
Family and housing law, 2005, N 2
The right to privacy, personal and family secrets, protection of one’s honor and good name presupposes the prohibition of any form of arbitrary interference in private life by the state, and also guarantees protection by the state from such interference by third parties.
Private life is understood as the physical and spiritual sphere, which is controlled by the individual himself, free from external influence, that is, it is the family and everyday sphere of the individual, the sphere of his communication, attitude towards religion, extra-work activities, hobbies and other areas of relationships that the person himself does not want to make it public unless required by law.
Personal and family secrets are one of the elements of private life. Personal and family secrets include the secret of adoption, the secret of the private life of spouses, personal property and non-property relations existing in the family and other information. The content of the right to personal and family secrets consists of the rights of a family member to demand non-disclosure of relevant information and the right to dispose of relevant information at his own discretion or with the consent of other family members.
During a person’s life, various people legally receive information about certain aspects of his private life. Among them are doctors, lawyers, notaries, law enforcement officials, clergy, etc. Based on this, the legislation establishes various requirements for keeping information about the private life of citizens secret. Thus, medical confidentiality consists of information about the fact that citizens seek medical help, the citizen’s state of health, the diagnosis of his disease and other information obtained during his examination and treatment. The notary is obliged to keep secret information that has become known to him in connection with the implementation of his professional activities. When considering certain categories of civil cases, their proceedings may also be closed, in particular, in cases of adoption of a child, as well as at the request of a person in order to preserve legally protected secrets and privacy (Article 10 of the Civil Procedure Code of the Russian Federation -Siysk Federation).
In Article 24 of the Russian Constitution in development this right it is stipulated that the collection, storage, use and dissemination of information about the private life of a person without his consent is not allowed. According to the Federal Law “On Personal Data”, the processing of personal data, including information about the private life of a person, including their collection, systematization, accumulation, storage, clarification, use, distribution, can only be carried out with the consent of the subject personal data (Article 6). At the same time, personal data operators and third parties gaining access to personal data must ensure the confidentiality of such data.
In case of availability of data on the private life of a person, as well as other information affecting the rights and freedoms of man and citizen, government authorities and local government, their officials are obliged to provide everyone with the opportunity to familiarize themselves with the relevant documents and materials, unless otherwise provided by law.
Violation of privacy entails liability, even criminal, for the illegal collection or dissemination of information about the private life of a person that constitutes his personal or family secret, without his consent, or the dissemination of this information in a public speech, publicly displayed work or means mass media(Article 137 of the Criminal Code Russian Federation).
Protection of the honor and good name of a citizen is carried out by means of requirements in judicial procedure refutation of information discrediting his honor and dignity. Citizens also have the right to demand compensation for losses and moral damage caused by the dissemination of information discrediting their honor and dignity (Article 152 Civil Code Russian Federation).
Main legislative acts:
- Civil Code of the Russian Federation; Criminal Code of the Russian Federation;
- Family Code of the Russian Federation;
- Federal law“On the fundamentals of protecting the health of citizens in the Russian Federation”;
- Federal Law “On Freedom of Conscience and Religious Associations”;
- Fundamentals of the legislation of the Russian Federation on notaries;
- Federal Law “On Advocacy and Advocacy in the Russian Federation”;
- Federal Law “On Personal Data”.
Many countries nowadays believe that civil human rights are the highest value.
Freedom is what is necessary for the realization of personality. Government authorities must realize that human rights must be above all other laws.
Human rights are a specific group of certain rights that embody the freedom of each individual individually. They protect people from lawlessness and tyranny.
Human civil rights protect the individual as an individual who has unique and unique characteristics.
Person:
1) To enjoy individual freedom.
2) To enjoy benefits.
3) To protect the use of benefits.
Everyone has the opportunity to appeal to international bodies to protect their rights.
Civil human rights
If we consider the benefits of individual freedoms as a classification criterion, we will highlight the following groups of rights:
For life, for honor, for ensuring the inviolability of life;
Freedom of movement throughout the country, choice of place of residence. These rights provide personal freedom, the ability to choose actions;
To freedom from cruel treatment, inhumanity, to protection from punishment. These rights guarantee the security of the individual;
To protect life, freedom of thought, religion, conscience, the right to inviolability of home, the right to privacy of telephone conversations, the right to family protection. These rights provide protection to personal and family life;
For equality before the court and the law, the law, equality of the sexes, the right to citizenship. Provide the opportunity to recognize a person with guarantees of equality.
There is another group, which includes rights that serve as conditions and means of human protection. They are often referred to as civil rights, because they serve to protect the personality and its qualities. This includes the right to justice for the convicted and accused, the victim of a crime.
Basic human rights will be listed and explained below. They are numerous.
Right to life
Any state is obliged to protect people's lives from various types of attacks. This is a right that cannot be taken away from anyone.
Life is a valuable capital in society. From a legal point of view, it is possible to take the life of a person only by But it is now prohibited in many countries. It was commuted to life imprisonment.
Right to dignity, honor and name
Everyone has the right to a name. Everyone has the opportunity to demand from others to be called by their last name, first name, and patronymic. All people should receive a name at birth.
The right to integrity, as well as to freedom. Personal dignity
The right to liberty and security of person are the most important human rights. An arrest can only be made on the basis court decision or prosecutor's sanctions.
You cannot torture a person, treat him cruelly, humiliate him, or experiment on him.
Right to freedom of conscience
The constitutions of any civilized countries proclaim freedom of conscience.
The right to create one’s own family and protect it
Men and women, upon reaching a certain age, have the right to voluntarily marry and start a family. Spouses in the family have equal rights.
Parents are obliged to take care of their children, their health and development. You cannot resort to cruel treatment.
Young people have the right to participate in the development of politics, culture, and the economy of the country.
Right to inviolability of home
You can enter the home only with the permission of the owner.
The right to absolute equality before current law
Everyone is equal before the law; there should be no infringement of rights. Race, gender, nationality, language, origin, official and property status - infringement of people on these grounds is unacceptable.
Right to residence
Right individual place of residence is enshrined in Art. 310 GK. A child, of course, also has this right. Recognition of the right of every child has now acquired particular relevance due to the fact that many children, for various reasons, find themselves on the street.
The child’s place of residence is determined by the place of residence of her parents. From this rule we can conclude that a child left in a maternity hospital has an easement right to live in their house, regardless of the fact that she was not settled in it. This right for a child arises from the fact of blood relationship, and not from the fact of settlement. After all, according to paragraph 3 of Part 2 of Art. With KS, the child belongs to the parents’ family even when he does not live with them.
In order to protect the rights of a child who was left in the maternity hospital, parents can be required to pay cash equivalent for the impossibility of the child living in the parents’ apartment, that is, a kind of compensation, by analogy with Art. 600 GK. It should be recognized, however, that the actual collection of such monetary compensation will have many obstacles.
Right to choose place of residence
The right to independently choose their place of residence is granted to a child who is 14 years old. This is due to many circumstances, namely: entry into incomplete civil legal capacity and civil procedural capacity, the possibility (under certain conditions) of registering a marriage with her. A child at this age, if she has gone, for example, to live with her grandparents, other relatives or strangers, cannot be forcibly returned to her parents.
The right to your own opinion
Article 13 of the Convention on the Rights of the Child gives children the right to freely express themselves. Article 171 of the Criminal Code specifies this general norm: the child is given the right to speak out before parents, other relatives, officials her own opinion on issues that concern her personal life, as well as the life of her family. Therefore, HER opinion must be listened to and heard. But this does not mean that the decisions of elders must necessarily be agreed with her. Respect for the child requires providing the child with an explanation if her thoughts are not supported.
According to part 2 of Art. 171 of the Family Code, a child who can express his opinion regarding a dispute that is being resolved by a court must be heard, in particular when it comes to determining her place of residence, depriving him of parental rights, renewing parental rights or regarding the management of her property.
However, the child's procedural position in the trial is not determined. Involve the child in the case as a third party without independent claims possible, but only after reaching 14 years of age. Until this time, the child can only be a witness.
Right to individuality
“A child is a field plowed by previous generations,” wrote Janusz Korczak.
This means that many of the child’s individual traits do not depend on her will: she was born with them and often, even with great desire and persistence, will not be able to get rid of them until the end of her life.
The child’s right to individuality and the preservation of this individuality is enshrined in Art. 8 of the Convention on the Rights of the Child. It is not separately stipulated in the Family Code, but since this Convention is part of our national legislation, there are no gaps regarding the recognition of this child’s right in Ukraine.
According to the Convention, the elements of this right are the name and nationality of the child. The child's retention of the name by which she was named is subject to the possibility of changing it at the will of the child. The adoption of a child by a foreigner is not a basis for changing her citizenship: she will remain a citizen of Ukraine until adulthood.
Individuality is also determined by other characteristics: external features, character traits, natural inclinations and preferences.
The child has the right to be who he is. “Beware of false longing for perfect children,” Janusz Korczak urges us. And, unfortunately, there are still many parents who punish their child for poor grades in math, for inattention, for inability to concentrate, as if they chose these traits for themselves and were not born with them.
IN last decade Ukraine has finally recognized the right to individuality of children - Levachki, who are no longer forced to write with their right hand.
“I play the harp, but I haven’t liked music since childhood.” These words of one of the characters in the movie “Only Old Men Go to Battle” are a reproach to many parents who, without noticing the individuality of their child, pressed it towards their own desires.
An element of the right to individuality is the right to be alone for some time. Its implementation is possible only when the child has his own corner in which he can retire.
A child has the right to shape her appearance: hairstyle, clothing, behavior, which is also a manifestation of her right to individuality.
Regarding parents, they should by example instill in the child a sense of proportion, giving her a high aesthetics of appearance and behavior. Forcibly suppressing the manifestations of a child’s individuality does not give the result desired by parents, but only aggravates the confrontation between them.
| DOWNLOAD FOR FREE COMMENTARY TO THE Civil Code of Ukraine
1. Every person has the right to the free development of his personality, unless the rights and freedoms of other people are violated (Article 23 of the Constitution of Ukraine). By the concept of “individuality” as an object of this right, the legislator understands the personal non-property benefit of an individual, which includes the totality of his mental
properties, characteristic features, as well as life and professional experiences that distinguish her from other individuals. The structure of individuality includes a number of features of an individual associated with its national, cultural, religious, linguistic and other identity. It is these features that can manifest themselves in
A) appearance an individual (figure, physical data, clothing, hairstyle, etc., as well as the combination of all these elements);
c) behavior (behavior in relationships with other persons and characteristics in relation to things, the presence of moral principles, habits and other character traits);
d) intellectual, cultural and educational level (ability to communicate, knowledge of the rules of politeness, wit, intelligence, skill, etc.);
e) other characteristic features that distinguish an individual from others.
The combination of all these elements can create a certain holistic perception of a person as a certain individual and be covered general concept style (image), which borders quite closely with the concept of business reputation.
2. The right to individuality lies in the ability of an individual:
a) have a certain individuality, that is, be recognized as the bearer of this personal non-property benefit. Quite close in meaning is the right to preserve one’s national, cultural, religious, linguistic identity, which is guaranteed by Part 2 of the commented article and Art. 11 of the Constitution of Ukraine;
b) use your individuality, that is, choose any possible form and a way of expressing individuality, if they are not prohibited by law and do not contradict the moral foundations of society (Part 2 of the commented article). Individual manifestations of individuality may be limited according to certain criteria (place, time, specific activity, etc.). For example, nudists have the right to express their individuality, however, in specially designated places, and for military or police officers, the right to reveal their individuality by their appearance is limited during the period of their performance official duties establishing a generally binding
special uniforms. Sometimes the individuality of an individual can also be used by him to obtain certain public or material benefits. Quite often this is used in politics and show business by politicians, actors, models, singers (demeanor, appearance, voice, etc.);
c) create and change your individuality. It is appropriate to note that recently the creation and change of individual personality has been subject to a certain commercialization. Thus, individuals who occupy a corresponding position in the public sphere, in order to be successful in their activities, spend considerable funds to form or change their image. All this is carried out by changing both natural (change (correction) of sex, plastic surgery, hair extensions, etc.) and acquired (change of image, giving up smoking and other bad habits, tattooing, correcting pronunciation, etc.) characteristics of an individual;
d) demand protection in case of any violation of the right to individuality. This power refers to the ability to demand protection in cases where a person is prevented from exercising this right (for example, when in the Armed Forces it is prohibited to wear long hair forced to shave beard or in higher education institutions
are required to wear ties and club uniforms), and when they commit actions that challenge whether this right is being violated. This right is protected on the grounds and in the manner provided for in Chapter 3 and Articles 275-280, 1166-1168 of the Civil Code.
