Along with states, international organizations are playing an increasing role in international relations. Now there are more than 500 international organizations, that is, their number has long exceeded the number of all other subjects of international law.

However, it should be noted that not all international organizations have the status of a subject of international law. As a general rule, only intergovernmental organizations, that is, those created by states, are recognized as subjects of international law. The issue of recognizing international non-governmental organizations as subjects of international law remains controversial in the future. That is why, when we talk about international organizations, we will mean only intergovernmental ones.

Since international organizations are secondary subjects of international law, their international legal personality is derived from the legal personality of states. For the first time, the question of the legal personality of international organizations arose in connection with the activities of the League of Nations, but was never resolved until its liquidation. After the Second World War, the UN was created, which again actualized the issue of the legal personality of international organizations. Therefore, when a UN employee was killed in Palestine in 1948, the organization appealed to the International Court of Justice. In its advisory opinion on Compensation for Injury in the Service of the United Nations, this authoritative judicial body confirmed that this organization has international legal personality. From that moment on, most scholars believe that international organizations have international legal personality. This is confirmed in a number of international agreements. So, for example, in the Vienna Convention on the Law of International Treaties between States and International Organizations or between International Organizations in 1986, it is noted that an international organization has such legal capacity to conclude international treaties, which is necessary for the performance of its functions and the achievement of its goals. At the same time, the practice of concluding international treaties with states or among themselves must comply with their constituent acts.

The international legal personality of an international organization is based on the provisions enshrined in the constituent documents - statutes and other acts that determine its scope, proceeding from the tasks and functions of this organization. However, it is generally accepted that at present all international intergovernmental organizations have international legal personality.

Since the scope of rights and obligations is determined by the founders at the time of the organization's creation and depends on the tasks and goals that it must fulfill, as well as the scope, the international legal personality of international organizations can differ significantly. The content of the international legal personality of international organizations can be drawn from the analysis of the relevant international rights and obligations, namely, regarding their:

Rights to privileges and immunities;

The right to create norms of international law, including the right to conclude treaties with states, international organizations, and other subjects of international law;

Rights to exchange missions with states and international organizations;

Obligations to bear international legal responsibility for their actions.

It is believed that among the existing international organizations, the UN and some of its specialized agencies have the broadest legal personality.

Among other signs that characterize international organizations as subjects of international law, it should be noted: they are created on the basis of an international legal act, as a rule, an international treaty (as an exception, we can cite the example of the OSCE, which operates without a charter); only states and other subjects of international law can be founders and participants of an international organization; the presence of permanent bodies.

International organizations are subjects of international law of a special kind. Their legal personality is not identical to the legal personality of states, since it does not arise from sovereignty.

An international organization, not possessing sovereignty, the source of its rights and obligations in the implementation of its competence has an international treaty concluded between the states concerned. Therefore, international organizations as subjects of international law are secondary, derivative in relation to states.

An organization becomes a subject if the founding states endow the organization with international rights and responsibilities. Its competence is specific in the sense that the rights and obligations of an international organization differ from the rights and obligations of a state. If the legal personality of a state is not limited either in the subject of legal regulation or in the scope of powers, then the legal personality of an organization is determined by those specific tasks and goals that are established by states in the constituent act that creates the organization. In this regard, each international organization has its own, inherent only to it, the range of rights and responsibilities. However, despite the differences in the nature and scope of rights and obligations, organizations operate within the framework of international law and have signs that ensure the legal personality of an international organization. The creation and functioning of an international organization have a legitimate basis if they comply with the norms of international law, first of all, with its basic principles. On the one hand, Art. 5 of the Vienna Convention on the Law of Treaties of 1969 introduces international organizations into the sphere of contractual regulation, since it determines the applicability of this convention "to any treaty that is a constituent instrument of an international organization." On the other hand, Art. 53 of the said Convention declares a treaty null and void if, at the time of its conclusion, it contradicts a peremptory norm of general international law. International organizations are obliged, in particular, to adhere to the principles of non-interference in the internal affairs of the state, the sovereign equality of members, and the conscientious fulfillment of international obligations.

Each international organization has inherent contractual legal capacity, the specificity and scope of which are determined by its charter.

In the modern period, the most famous international organizations are the United Nations Organization (UN), the United Nations Educational, Scientific and Cultural Organization (UNESCO). International Labor Organization (ILO), World Health Organization (WHO), Organization of African Unity (OAU), Commonwealth of Independent States (CIS) and others.

In a number of cases, the legal succession of international organizations is carried out, in which, in order to maintain the continuity of functions, certain powers are transferred from a defunct organization to an organization newly established by states. Thus, the UN was the successor to the rights and obligations of the League of Nations under a number of international treaties.

International law recognizes the responsibility of international organizations in the event that they violate generally recognized international legal principles and norms and international treaties concluded by them, provisions of constituent acts.

See also:

having a constant influence on the formation and development of international management, is international law. ...
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International organizations form a separate group of MP subjects. There are the following types of international organizations: 1) international intergovernmental organizations- organizations created by the primary subjects of international law (UN, Council of Europe, European Union, Commonwealth of Independent States and others); 2) non-governmental international organizations such as the World Federation of Trade Unions, the International Committee of the Red Cross. Their peculiarity lies in the fact that they are established by LE and FL (groups of persons) and are public associations complicated by a foreign element. The charters of these organizations, in contrast to the charters of interstate organizations, are not international treaties, and, therefore, such international organizations are not considered as subjects of MP. So, non-governmental organizations can have a consultative international legal status in intergovernmental organizations, for example, in the UN and its specialized agencies. However, the basic requirement for the subject of international legal relations has not been observed - non-governmental organizations are not entitled to create the norms of the international law and, therefore, cannot, unlike intergovernmental organizations, have all the elements of international legal personality. International intergovernmental organizations do not have sovereignty, do not have their own population, their own territory, and other attributes of the state. They are created by sovereign entities on a contractual basis in accordance with the MP and are endowed with a certain competence, fixed in the constituent documents (primarily in the charter). The charter of the organization defines the goals of its formation, the principles of its activities, provides for the creation of a certain organizational structure (operating bodies), establishes their competence. At the same time, the legal personality of an organization is functional in nature, i.e. it is limited by statutory goals and objectives. In addition, all international organizations are obliged to comply with the basic principles of the MP, and the activities of regional international organizations should be compatible with the purposes and principles of the UN.

11. CONCEPT AND CLASSIFICATION OF BASIC PRINCIPLES OF MP

The principles of the MP are generalized norms that reflect the characteristic features and the main content of the MP, which have the highest legal force. The principles of international law are characterized by: universality; the need for recognition by the entire world community; the presence of ideal principles; interconnectedness;

avant-garde; hierarchy. The principles of MT can be classified according to the following grounds: a) by the form of consolidation, they distinguish between written and ordinary principles, which does not affect their legal force; b) according to their historical characteristics, they are subdivided into pre-statutory, statutory and post-statutory (newest) ones; c) according to the degree of importance of the protected relations, we can talk about the principles that ensure universal human values ​​and principles related to the interests of states; d) according to the object of cooperation, the following are distinguished:



Principles for Peace and Security; principles of cooperation; principles of protection of human rights, nations and peoples.

The legal foundations of the MP are the following principles:

1. Non-use of force (UN Charter, Declaration on Principles of International Law). 2. Peaceful settlement of disputes (Paris Pact on the Renunciation of War, UN Charter). 3. Territorial integrity of the state (clause 4, article 2 of the UN Charter, Declaration on the Principles of International Law). 4. The inviolability of borders (Declaration on the principles of the MP, FOR CSCE). 5. Sovereign equality (Clause 1, Article 2. UN Charter, Declaration on Principles of International Law, FOR CSCE). 6. Non-interference (clause 7 of Article 2 of the UN Charter, Declaration on Principles of International Law, FOR CSCE). 7. Equality and self-determination of peoples (UN Charter, Declaration on the Granting of Independence to Colonial Countries and Peoples 1960, Declaration on the Principles of International Law 1970). 8. Cooperation of states (Article 1 of the UN Charter, Declaration on the Principles of International Law). 9. Respect for human rights (UN Charter, 1948 Universal Declaration of Human Rights, 1966 Human Rights Covenants, FOR CSCE, 1990 Charter of Paris for a New Europe). 10. Conscientious fulfillment of international obligations (paragraph 2 of article 2 of the UN Charter, the Great Conventions on the Law of Treaties of 1969 and 1986, FOR the CSCE).

International organizations are subjects of international law of a special kind. Their legal personality is not identical to the legal personality of states, since it does not arise from sovereignty.

An international organization, not possessing sovereignty, the source of its rights and obligations in the implementation of its competence has an international treaty concluded between the states concerned. Therefore, international organizations as subjects of international law are secondary, derivative in relation to states.

An organization becomes a subject if the founding states endow the organization with international rights and responsibilities. Its competence is specific in the sense that the rights and obligations of an international

Chapter 3. Subjects of international law

Organizations differ from the rights and obligations of the state. If the legal personality of a state is not limited either in the subject of legal regulation or in the scope of powers, then the legal personality of an organization is determined by those specific tasks and goals that are established by states in the constituent act that creates the organization. In this regard, each international organization has its own, inherent only to it, the range of rights and responsibilities. However, despite the differences in the nature and scope of rights and obligations, organizations operate within the framework of international law and have signs that ensure the legal personality of an international organization. The creation and functioning of an international organization have a legitimate basis if they comply with the norms of international law, first of all, with its basic principles. On the one hand, Art. 5 of the Vienna Convention on the Law of Treaties of 1969 introduces international organizations into the sphere of contractual regulation, since it determines the applicability of this Convention “to any treaty that is a constituent instrument of an international organization”. On the other hand, Art. 53 of the said Convention declares a treaty null and void if, at the time of its conclusion, it contradicts a peremptory norm of general international law. International organizations are obliged, in particular, to adhere to the principles of non-interference in the internal affairs of the state, the sovereign equality of members, and the conscientious fulfillment of international obligations.

Each international organization has inherent contractual legal capacity, the specificity and scope of which are determined by its charter.

In the modern period, the most famous international organizations are the UN, UNESCO, ILO, the World Health Organization (WHO), the CIS, the Council of Europe, the Organization for Security and Cooperation in Europe (OSCE), etc.

In a number of cases, the legal succession of international organizations is carried out, in which, in order to maintain the continuity of functions, certain powers are transferred from a defunct organization to an organization newly established by states. Thus, the UN was the successor to the rights and obligations of the League of Nations under a number of international treaties.

1. Legal personality of international organizations, its legal basis

At the beginning of the 21st century, international organizations play an important role in international relations as a form of cooperation between states and multilateral diplomacy. International organizations as secondary, derivative subjects of international law are created (established) by states. The most common way is to conclude an international treaty.

At the present time in science it is widely recognized that states, creating international organizations, endow them with a certain legal and legal capacity, recognizing their ability to: have rights and obligations; participate in the creation and application of international law; stand guard over the observance of international law. With this recognition, states create a new subject of international law, which, along with them, carries out lawmaking, law enforcement and law enforcement functions in the field of international cooperation. At the same time, the volume of their legal personality is significantly less than that of states - the main subjects of international law and is of a targeted and functional nature.

International organizations are endowed with contractual legal capacity, that is, they have the right to conclude a wide variety of agreements within their competence. According to Art. 6 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, the legal capacity of international organizations to conclude treaties is governed by the rules of that organization. Clause 1 of Art. 2 of the said Convention explains that the rules of the organization mean, in particular, the constituent acts, decisions and resolutions adopted in accordance with them, as well as the established practice of the organization.

In order to carry out their functions, international organizations must have the necessary legal means. In Art. 104 of the UN Charter provides for this purpose that the United Nations shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the performance of its functions and the achievement of its objectives. Most of the articles of association contain similar provisions.

An analysis of the constituent acts of international organizations, noted in the science of public international law, indicates that contractual legal capacity is fixed in them, as a rule, in two ways: either in a general provision providing for the right to conclude any agreements that contribute to the fulfillment of the organization's tasks (for example, Article 65 of the Chicago Convention on International Civil Aviation, 1944); or in a special provision or provisions that determine the possibility of the organization concluding certain categories of agreements (for example, Articles 43 and 63 of the UN Charter) and with certain parties (with any states or only with member states, with any international organizations or only with some of them) ).

International organizations have the ability to engage in diplomatic relations. Under them, representations of states are accredited, they themselves have representations in states (for example, UN information centers) and exchange representatives among themselves. There is a UN Information Center in Moscow, UNESCO and ILO representations. International organizations and their officials enjoy privileges and immunities (for example, the 1946 Convention on the Privileges and Immunities of the United Nations, the 1947 Convention on the Privileges and Immunities of the United Nations Specialized Agencies, the Convention on the Legal Status, Privileges and Immunities of Intergovernmental Organizations Acting in Specific Areas cooperation, 1980, etc.)

As subjects of international law, international organizations are responsible for violations and damage caused by their activities and can make claims of responsibility.

International organizations are also empowered to recruit staff on a contract basis. These are not representatives of states, but international officials who report exclusively to an international organization and act on its behalf and in its interests. As noted in Art. 100 of the UN Charter, the Secretary General and the staff of the Secretariat shall not seek or receive instructions from any government or authority external to the Organization. They must refrain from any action that might affect their position as international officials accountable only to the Organization.

International organizations also act with all the rights of a legal entity under the internal law of states. So, Art. 39 of the Charter of the International Labor Organization establishes that the ILO has all the rights of a legal entity, in particular the right to conclude contracts, the right to acquire movable and immovable property and dispose of it, the right to initiate legal proceedings.

The same rights are granted to the UN and its bodies, programs and funds, as well as their Joint Representation by the Agreement between the Government of the Russian Federation and the UN of June 15, 1993 No.

Each international organization has financial resources, which, although they consist mostly of the contributions of the member states, are spent exclusively in the general interests of the organization.

2. Final Act of the Security Conference, Its Significance, Formation of the OSCE as an International Organization

Conference on Security and Cooperation in Europe (CSCE). At present, the CSCE is an emerging international regional organization. Its constituent documents are the Final Act adopted in Helsinki in 1975, the Charter for a New Europe and the Supplementary Document to it, adopted in Paris in 1990, the Declaration "Challenge of the Times of Change" and a package of decisions on the structure and main directions of the CSCE activities adopted in Helsinki in 1992. These documents define the main goals of the CSCE - cooperation in the field of security, disarmament, conflict prevention, economy, culture, human rights and freedoms, etc. The CSCE principles were enshrined in the Declaration of Principles, which is an integral part of the Helsinki Final Act.

Since 1990, the formation and development of the CSCE structure has been taking place. It was determined that meetings of heads of state and government should be held regularly every two years. They set priorities and provide guidelines at the highest political level. Summit meetings should be preceded by a review conference, which are empowered to take stock of the implementation of commitments and consider further steps to strengthen the CSCE process, prepare documents for approval at the meeting.

The CSCE Council is the central decision-making and governing body of the CSCE. It consists of foreign ministers and must meet at least once a year to consider issues related to the CSCE and make appropriate decisions. Each meeting of the CSCE Council must be chaired by a representative of the host country.

The main working body of the CSCE is the Committee of Senior Officials (CSO). Along with the adoption of operational decisions, it is entrusted with the functions of management and coordination. The management of the current activities of the CSCE is entrusted to the Chairman-in-Office, who in his activities can use the institution of the "troika" (as part of the previous, current and subsequent Chairmen), special task forces and their personal representatives. A CSCE Secretariat was established in Prague to serve the Council and Committee.

The Office for Free Elections, created under the Charter of Paris for a New Europe, was renamed at the 1992 Prague meeting as the Office for Democratic Institutions and Human Rights (based in Warsaw). It should facilitate the exchange of information and the expansion of practical cooperation between states in the field of the human dimension and the formation of democratic institutions.

An important body is the Conflict Prevention Center (located in Vienna) to assist the CSCE Council in reducing the risk of conflict. The Center includes an Advisory Committee composed of representatives of all Member States and a Secretariat.

An equally important role is assigned to the High Commissioner for National Minorities and the CSCE Forum for Security Cooperation. The High Commissioner is tasked with providing “early warning” and “urgent action” in relation to tense situations of national minorities that have the potential to escalate into conflict in the CSCE region and require the attention and action of the Council or the CSO. The CSCE Forum for Security Co-operation is being established as a permanent body with the aim of: holding new negotiations on arms control, disarmament and confidence- and security-building; expanding regular consultations and intensifying cooperation on security-related matters; reduce the risk of conflicts.

Other bodies worth mentioning are the Parliamentary Assembly, composed of representatives of all CSCE member countries, and the Economic Forum, which, starting in 1993, should meet on a periodic basis (in Prague) by the CSO.

3. Can foreign aircraft freely fly over the exclusive economic zone of the Russian Federation?

In accordance with the UN Convention on the Law of the Sea, an economic zone is an area outside and adjacent to the territorial sea, up to 200 nautical miles wide from the baselines from which the breadth of the territorial sea is measured. A specific legal regime has been established in this area. The Convention granted the coastal State in the exclusive economic zone sovereign rights for the exploration and development of natural resources, both living and non-living, as well as rights in relation to other activities for the purpose of economic exploration and development of the specified zone, such as the production of energy through the use of water. currents and winds.

The Convention provides for the right of other states, under certain conditions, to participate in the fishing of living resources of the exclusive economic zone. However, this right can only be exercised by agreement with the coastal state.

The coastal State also has jurisdiction over the creation and use of artificial islands, installations and structures, marine scientific research and the preservation of the marine environment. Marine scientific research, the creation of artificial islands, installations and structures for economic purposes may be carried out in the exclusive economic zone by other countries with the consent of the coastal state.

At the same time, other states, both maritime and landlocked, enjoy in the exclusive economic zone the freedoms of navigation, flights over it, laying cables and pipelines and other legalized uses of the sea related to these freedoms. These freedoms are exercised in the zone as on the high seas. The zone is also subject to other rules and regulations governing the rule of law on the high seas (exclusive jurisdiction of the flag state over its vessel, permissible exemptions from it, the right of pursuit, provisions on the safety of navigation, etc.). No state has the right to claim the subordination of the economic zone to its sovereignty. This important provision applies without prejudice to compliance with other provisions of the legal regime of the exclusive economic zone.

4. Gr. The Russian Federation turned to lawyers with a request to explain to her part 3 of Article 46 of the Constitution of the Russian Federation. She is interested in the possibility of applying to the European Court of Human Rights. Her labor rights were violated. A private company, due to financial irregularities, forced it to take a vacation at its own expense for a long time. All domestic remedies have been exhausted (2 months have passed since the date of the decision on the cassation appeal). Please provide clarification.

The 1993 Constitution of the Russian Federation for the first time in the history of our state allowed the widespread use of international law within the country. All previous Constitutions - both of the RSFSR and the USSR - severely limited the possibility of the impact of international legal norms on the regulation of relations between the state and the citizen.

Part 4 of Article 15 of the Constitution of the Russian Federation states:

"The generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty are applied."

This general provision is further specified in some other articles of the Constitution.

Part 3 of Article 46 states: "Everyone has the right, in accordance with international treaties of the Russian Federation, to apply to interstate bodies for the protection of human rights and freedoms, if all available domestic remedies have been exhausted."

On February 28, 1996, the Russian Federation signed the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Federal Law No. 54-FZ of March 30, 1998, which entered into force for Russia on May 5, 1998, art. 13 which provides that “everyone whose rights and freedoms recognized in this Convention have been violated shall have the right to an effective remedy before a public authority, even if the violation was committed by persons acting in an official capacity”. The clause on persons "acting in an official capacity" ("official capacity"), i.e. on representatives of state authorities, the Convention especially emphasizes the importance of protecting human rights from illegal actions by the state.

The practice of applying to the European Court of Human Rights is now becoming more and more common. According to the statistics of the Registry of the European Court, as of January 2002, about 5200 complaints were registered, of which about 2500 were considered for admissibility. As of the end of May 2002, five complaints against the Russian Federation had been declared admissible, and one decision on the merits was issued, by which the Russian Federation was found to be a violation of human rights, namely the right to a fair trial. All this gives grounds to assert that the European Court is a part of our legal reality and has already begun to influence the change in the legal situation in our country.

In order to succeed in applying to the European Court of Human Rights, several conditions must be met: first, to clearly understand which right of the applicant is violated and in what, in fact, the violation was expressed; secondly, to comply with formal conditions; third, substantiate your complaint using existing evidence; fourthly, to motivate his complaint by the previous precedents of the European Court.

The above conditions constitute, in essence, the admissibility criteria listed in the European Convention on Human Rights (ECHR). It is very important for the applicant to comply with all these conditions, since according to the statistics of the European Court about 90% of the applications are rejected by the European Court precisely because of their inadmissibility.

The following conditions for the admissibility of an application to the Court can be distinguished:

You can apply to the European Court only in case of violation of the right provided for by the European Convention, the so-called ratione materiea (circumstances in essence) - this was mentioned above;

Only those appeals may be considered that relate to circumstances that occurred after the country entered the jurisdiction of the European Court - ratione temporis;

The violation of the right must take place in the territory which is under the jurisdiction of the European Court - ratione loci;

A complaint can only be filed by the person whose right has been violated directly - ratione persona;

The applicant is obliged to exhaust the effective remedies available in the country;

An application to the European Court must be sent no later than 6 months from the date of the last judgment;

The complaint must be substantiated, that is, it is the applicant who is obliged to prove the violation of his right by the state;

The complaint cannot be anonymous;

The complaint cannot contain offensive statements;

You cannot submit a complaint on the same issue simultaneously to two (or more) international bodies, for example, to the European Court of Human Rights and to the UN Human Rights Committee.

It is necessary to dwell in more detail on some of the above criteria.

Circumstances on the merits ratione materiea presupposes that the complaint sent to the European Court concerns precisely those rights that are listed in the European Convention and its protocols. But to recognize this requirement as complied with, it is not enough to simply indicate a violation of one or another article of the Convention. The practice of the European Court has developed certain concepts in relation to each of the rights provided for by the European Convention, therefore, the violation of the law must be related to this concept.

For example, in relation to Article 10 of the ECHR, it should be remembered that the text of the article itself provides for the right to freedom of opinion and the right to free access to information, and the right to freely impart information. It should also be remembered that the right to freedom of expression is not absolute, that is, the state has the right, under certain conditions, to restrict this right. As a matter of fact, the issue of violation of the right to freedom of expression arises precisely when the state in any way interferes and restricts the exercise of this right.

Circumstances of time ratione temporis means that a state undertakes an obligation to fulfill this or that international treaty only from the moment of its signing and ratification. The Russian Federation assumed obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms and submitted to the jurisdiction of the European Court of Human Rights since May 5, 1998. This means that the Russian Federation is not responsible for human rights violations committed before May 5, 1998. Consequently, it is completely senseless to apply to the European Court, challenging the events that took place, for example, in 1997, even if they are the most obvious example of human rights violations. It should be noted that in 1999-2000 a huge number of complaints were declared inadmissible precisely because the violation of rights occurred before May 5, 1998. But now this condition is becoming more and more formal.

The circumstances of the place ratione loci means that the fact of the violation of the right must take place in the territory that is under the jurisdiction of one of the states that are members of the Council of Europe and, accordingly, have signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. In other words, the violation of human rights, and in particular the violation of freedom of speech, must occur on the territory of the Russian Federation or any other member state of the Council of Europe.

The circumstances of the person ratione persona lay down the rules as to who and against whom may complain to the European Court of Human Rights. The defendant in the European Court of Human Rights is always a state that is a member of the Council of Europe. Applicants can be any private person: citizens of one of the states of the Council of Europe, foreigners, persons with dual citizenship and stateless persons. In addition, the European Court does not restrict the right to appeal by the criterion of civil legal capacity, that is, a person who has applied to the European Court of Human Rights may be mentally ill, a minor and, of course, normal and adult. Individuals, groups of citizens and legal entities - commercial and non-commercial, including religious associations can apply to the European Court of Human Rights.

The European Convention uses the term “victim” of a human rights violation to refer to the applicant. The concept of a victim implies that only the person in respect of whom human rights and fundamental freedoms have been violated can apply to the European Court of Human Rights. The victim can be direct, indirect, and potential. The applicant is a direct victim if his right is violated directly. An indirect victim is a relative or close person of the direct victim. The figure of a potential victim appears in consideration when any legislative act of the state can potentially violate human rights.

Exhaustion of domestic remedies is a prerequisite for applying to any international legal institution, including the European Court of Human Rights. This condition means that an applicant whose rights have been violated must first apply to the court of his state for the protection of his rights. It is presumed that the violation of human rights is a kind of oversight on the part of the state, therefore, the state is given the opportunity to correct its oversight through a court decision, on the basis of which the violated rights will be restored. The judicial systems in the member states of the Council of Europe are different, in this regard, there is a different number of courts that must be “exhausted” before applying to the European Court of Human Rights.

The European Court proceeds from the criterion of “effectiveness” of those instances that must be exhausted. The “effectiveness” of a remedy consists of two components: the applicant's ability to initiate a procedure for considering human rights violations on his own initiative and the authority's duty to determine the rights and obligations of the applicant.

Formally, in the Russian Federation there are a sufficient number of bodies that have the right to consider issues of human rights protection, but most of them do not meet the criterion of “effectiveness” developed by the European Court: either the applicant cannot initiate the examination procedure himself and its implementation depends on the decision of the official, for example , when considering cases by way of supervision; or the response of the state body does not define the rights and obligations of the applicant, for example, the response of the Ombudsman.

With regard to the Russian Federation, effective remedies that must be exhausted before applying to the European Court of Human Rights are the first instance and the cassation instance (as well as the appeal instance, if this procedure is provided). Contacting these authorities is mandatory. As for the supervisory procedure for considering cases, it was found ineffective by the decision of the European Court of Human Rights in the case Tumilovich v. RF, since the applicant has no right to initiate judicial proceedings in the supervisory procedure.

In some cases, there is a parallel opportunity to appeal to the administrative authorities to eliminate the violation of law and to the judicial authorities. But the judicial method of protection is recognized as the most effective, since it combines both criteria of “effectiveness” - the ability to initiate a lawsuit on one's own initiative and the ability to obtain a final definition of one's rights and obligations. Any administrative procedures must be exhausted only if they are a prerequisite for going to court.

Separately, one should dwell on the issue of the need to appeal to the Constitutional Court of the Russian Federation as a means of domestic legal protection. The law on the "Constitutional Court of the Russian Federation", which in Article 97 defines two conditions under which the complaint will be considered: 1) the law affects the constitutional rights and freedoms of citizens, 2) the law has been applied or is subject to application in a specific case, the consideration of which has been completed or begun in court or other body applying the law. Article 100 of this law provides that if the Constitutional Court of the Russian Federation recognizes any of the provisions of the law as unconstitutional, then the case, upon consideration of which this provision was applied, must be reviewed in the general procedure.

Thus, if we assume that an appeal to the Constitutional Court is a mandatory remedy when filing a complaint with the European Court of Human Rights, those applicants who believe that the existing law is in accordance with the Constitution of the Russian Federation, but was applied incorrectly, and this violated their rights are deprived of the opportunity to appeal to the European Court of Human Rights. Such a procedure would not comply with the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms and would not contribute to the protection of human rights in the European Court of Human Rights.

At the same time, there is no reason to believe that the decision made by the Constitutional Court of the Russian Federation “on the determination of civil rights and obligations” cannot be “appealed” to the European Court of Human Rights. Of course, there can be no question of appeal in the literal sense of the word, but if the applicant believes that the decision of the Constitutional Court of the Russian Federation violates human rights provided for in the European Convention, then he may well apply to the European Court of Human Rights in this regard.

Exhaustion of domestic remedies is a formal criterion, but at the same time, the European Court recognizes that the applicant has exhausted the possibility of restoring his rights domestically only if he applied to the court in connection with a violation of the very right that he would appeal to the European Court. For example, the applicant appeals to the European Court of Human Rights and claims that his right to freedom of speech has been violated. This was reflected in the fact that he was fired, according to him, for expressing his opinion on the work of the leadership. The applicant applied to the court with a claim for reinstatement at work and was not reinstated. However, during the trial, neither the applicant nor any other persons mentioned a violation of the right to freedom of speech, and it was said that the applicant was repeatedly absent from his workplace during working hours. In the present case, the Court can find that the applicant did not exhaust domestic remedies, as the court did not discuss the issue of his being fired for expressing his opinion of the management. If, in fact, the applicant spoke about this during the court session, then this must be confirmed by comments on the minutes of the court session, audio recordings of the trial, testimony or other evidence.

Litigation is a way of exhausting legal remedies, but the European Convention provides for the protection of the right to a fair trial. But court proceedings can not in all cases become a subject of consideration in the European Court of Human Rights in relation to the right to a fair trial. Article 6 of the ECHR, which guarantees this right, does not apply to every legal process in the framework of Russian civil proceedings. Article 6 applies to litigation concerning civil rights and obligations, that is, to cases between individuals. For example, a lawsuit for reinstatement in a job in a municipal authority will not be considered within the framework of Article 6, since labor rights do not belong to the category of civil rights in the understanding of the European Court of Human Rights. At the same time, the Court can find that the applicant exhausted domestic remedies in relation to the right to freedom of expression (if he applied to a court because he was dismissed due to his political opinions).

The European Convention for the Protection of Human Rights and Fundamental Freedoms provides for a strict temporary condition - an appeal to the European Court of Human Rights must be sent within 6 months. The moment from which this 6 month period is counted can be determined by various events:

Since the last internal decision on the merits;

From the moment of violation of the right (if there is no domestic legal procedure for the protection of this right);

From the moment when the person learns about the violation of his right (although the obligation to exhaust domestic remedies is not removed from the applicant).

The 6 month term is the most stringent of all eligibility conditions. Until now, the European Court of Human Rights has never deviated from it and has not made any exceptions when missing the 6-month time limit, so no good reason can justify missing the 6-month time limit.

The criteria for the exhaustion of domestic remedies and the 6-month time limit are usually analyzed together. Let's give an example of the interdependence of these criteria. The applicant was brought to criminal responsibility, he claims that he was beaten during the first interrogation, the first 10 days he was kept in the IVS and he was constantly interrogated, although his arrest was formalized as an administrative one, during the trial none of his motions was granted ... Based on this short list of violations, we can talk about potential treatment in connection with a violation of the right to prohibit the use of torture, the right to liberty and security of person, and the right to a fair trial. In our country, there are various procedures for “exhausting” domestic remedies for each of the above violations. In the event of torture, it is necessary to apply to the prosecutor's office with a statement to initiate a criminal case, in case of refusal to initiate, apply to the court in criminal procedure and appeal this refusal, if a negative decision is received, appeal it in cassation procedure. From the moment the cassation ruling is issued, the term will be calculated in relation to the violation of the right to prohibit torture. A special procedure, provided for by the Criminal Procedure Code, exists for appealing against illegal arrest. The 6-month period will also begin to run from the date of the cassation ruling on the complaint of unlawful arrest. The 6-month deadline for appealing violations of the right to a fair trial will begin to run from the moment a cassation ruling in a criminal case is issued.

Thus, in the above example, the 6-month period and procedure for the exhaustion of domestic remedies will be determined differently for each of the violations. Therefore, the applicant needs to check compliance with the criteria of exhaustion and the 6-month time limit in relation to each individual violation, and not only in relation to the last court decision in a criminal case. It should be noted that such situations are more typical of human rights violations in the field of criminal justice.

The main way to protect such rights as the right to respect for private and family life, the right to freedom of religion, the right to freedom of speech, the right to freedom of association is to go to court in civil law. In this case, the 6-month period begins to run from the date of the cassation ruling in the case, and this applies both to the violation of the right provided for in Articles 8-11 and to the violation of the right to a fair trial.

The validity of the appeal consists of two components: the appeal must be proven and motivated by the precedents of the European Court of Human Rights.

As for the proof of the appeal, the applicant must submit evidence confirming that the state has indeed violated his rights, since, according to the European Convention, the burden of proof of the violation lies with the applicant. This rule can be regarded as rather strict, since the applicant is a weaker party than the state he is opposed to. At the same time, the applicant has the opportunity and is obliged to try to restore his rights using domestic legal procedures, and after going through all the instances, he is more clearly able to prove that the state did not really take any steps to restore his rights.

In some cases, the collection of evidence is difficult, but the European Court of Human Rights does not have formal requirements for evidence and accepts as evidence any documents testifying to a violation of human rights. The violation of the right can be confirmed by court decisions, answers from administrative authorities, testimonies, transcripts of dictaphone records, letters, the applicant's own story, etc.

The only requirement for evidence is its good faith, that is, the applicant has no right to manipulate and falsify them in any way. Most likely, if the applicant's bad faith is revealed, the European Court of Human Rights will withdraw this appeal from consideration, and the applicant will forever lose the right to appeal to any international legal instance with his complaint.

As for the motivation of the appeal, then, as already mentioned, the previous decisions of the European Court of Human Rights should be used. Each article of the European Convention is built with a certain internal logic. For example, Article 3, which provides for the prohibition of torture, is absolute, that is, it is considered that the state can under no circumstances deviate from the observance of this right. Articles 8-11 provide for rights that may be limited by the state, but the practice of the European Court has developed the conditions for this limitation. The right can be considered violated if it is recognized that the conditions for limiting the right were not met. In this regard, the appeal for each article must be built in accordance with the logic of this article.

The rest of the conditions of admissibility are obvious and do not require further comment. All the admissibility criteria are interrelated and interdependent, therefore, the success of an appeal to the European Court of Human Rights largely depends on the observance of these conditions. The procedure for applying to the European Court of Human Rights usually includes several stages. First, it is necessary to understand which right or which rights have been violated, assess the admissibility criteria for each of the potential violations, select evidence of human rights violations and select the decisions of the European Court concerning similar situations. The European Court of Human Rights accepts any appeal, so the applicant can write to the European Court of Human Rights, explaining his situation in the way he thinks necessary to do it. But, as a rule, after receiving such a letter - a preliminary appeal, the Secretariat sends the applicant an appeal form, the text of the European Convention on Human Rights and an explanatory note on how to fill out the form. The preliminary appeal interrupts the course of the 6-month period.

An application form is a specific form developed by the European Court of Human Rights. All sections of this form have been designed so that, after reviewing the form, you can get an idea of ​​the human rights violation and whether the complaint is potentially admissible. The form includes sections on the applicant's personal data, the state against which the applicant is applying, a description of the factual circumstances of the case, a listing of violations of the European Convention with their justification, the applicant's requirements and a number of others. You should be very careful when filling out the form, as the European Court of Human Rights will consider the complaint only within the limits set in the complaint. Filling out a form is very different from preparing court documents within the Russian Federation. First of all, oddly enough, difficulties arise when filling out the "description of facts" column. The applicant in this section must write about the events that have occurred in his life in connection with the violation of his human rights, in chronological order. The main difficulty lies in the fact that the applicant should try not to comment on these events, but due to his emotional involvement, it is extremely difficult for the applicant to do this. The most difficult to fill out is the section devoted to the description of the alleged violations, since in this section it is necessary to justify your appeal, using mainly the practice of the European Court.

The rest of the sections are more formal and do not cause any particular difficulties.

The Registry of the European Court, after receiving the form, registers the complaint, which is put in the queue for the consideration of the case.

Consideration of an application in the European Court of Human Rights can be conditionally divided into three stages: preliminary stage, consideration for admissibility and consideration on the merits.

The preliminary stage is understood as the stage of correspondence between the applicant and the Secretariat of the European Court up to notifying the applicant that his complaint has been sent to the Government of the Russian Federation to provide his position on this case. Previously, this stage could be quite lengthy, since the Registry of the European Court sent letters to the applicants with a request to clarify a particular position on the complaint. But now the Secretariat has abandoned this practice because it is very time consuming. Currently, the applicant, after receiving a notice of registration of his complaint, will receive either a decision made by the Committee of Judges that his complaint is inadmissible, or a notification that his complaint has been sent to the Representative of the Russian Federation to present his objections to the complaint. In the second case, that the complaint will be considered for admissibility by the Chamber of Judges.

The first formal stage of the process in the European Court is the stage of determining the admissibility of the application. A committee of judges or a Chamber of the European Court shall decide whether a given complaint meets the necessary formal criteria set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The second formal stage of the process is the examination of the case on the merits. It is at this stage that the European Court makes its decision on whether any of the rights listed in the European Convention has been violated or not.

Organizationally, the Court is divided into four sections. Sections from among their judges form the organs of the Court - Committees, Chambers and the Grand Chamber, which directly consider complaints.

The committee consists of three judges. The judges of the Committee, by unanimous decision, can reject the complaint as inadmissible, that is, does not meet all the requirements for the submitted complaint. The Committee's decision cannot be appealed, it is final. Most of the decisions on admissibility were made by the Committee of Judges. The statistics given at the beginning of the article indicated that the number of applications considered for admissibility as of January 2002 was about 2,500, but only 20 of them were considered by the Chamber of Judges. The decision of the Committee is unmotivated, that is, it contains only a reference to the admissibility criterion, which, in the opinion of the Committee of Judges, was not met.

The Chamber is the main organ of the European Court of Justice. The Chamber consists of seven judges, one of whom, ex officio, is the judge of the country against which the complaint is filed. The Chamber examines applications for admissibility.

Before considering an admissibility complaint, the European Court sends the applicant's complaint to the RF Representative at the European Court, who submits to the Court its objections concerning the alleged violation of the law itself, as well as issues of admissibility. The aim of the Representative of the Russian Federation at this stage is to prevent the consideration of the complaint on the issue of admissibility in the European Court, since in this case the complaint will not receive publicity. As a rule, this is expressed in the fact that the law enforcement agencies of the Russian Federation, on their own initiative, review civil and criminal cases in the order of supervision and make decisions that are opposite to previous decisions.

The European Court makes a decision on admissibility only after considering the position of the Representative of the Russian Federation and the applicant. As a rule, the admissibility examination takes place without the participation of the applicant and a representative of the state.

If the complaint is declared admissible, then the same composition of the Chamber shall consider it on the merits. Consideration of a complaint on admissibility and on its merits, as a rule, does not take place simultaneously. This is due to the fact that the parties must prepare for the hearing on the merits.

In some cases, the Court may combine the admissibility and merits hearings in one hearing, as was the case in the Kalashnikov v. RF case. But decisions on the subject of admissibility and on the merits will be made at different times, so Kalashnikov's complaint was declared admissible, but a decision on the merits has not yet been made.

The applicant and his lawyer, as well as a representative of the state against which the complaint is being examined, take part in the examination of the complaint on the merits. The European Court of Human Rights may provide material assistance for the travel and residence in Strasbourg of the applicant and his representative, if the applicant is unable to pay these costs on his own. It should be noted that, contrary to the popular belief that it is expensive to apply to the European Court of Human Rights, the appeal is free, and in case of a violation of human rights, the European Court obliges the state to pay not only just compensation, but also the costs of the applicant for legal services and correspondence with Strasbourg.

During the examination of the case on the merits, the parties submit their position to the Court in writing in one of the two official languages ​​of the Council of Europe, that is, in English or French. (All previous correspondence, including objections to the position of the Representative of the Russian Federation, is conducted in Russian.) The speech in the Court also takes place in one of the official languages. The duration of the parties' statements in the European Court is strictly regulated and cannot exceed 30 minutes. The decision of the European Court is not read out immediately after the hearing; its preparation may take several months. After the decision has been made, it is sent to the parties, transmitted to the Committee of Ministers of the Council of Europe, which will implement this decision, and is also posted on the website of the European Court (www.dhcour.coe.int).

As mentioned above, if the Chamber recognizes a violation of human rights, it can also award the country with just satisfaction in favor of the applicant, as well as recommend that the country apply a number of individual and general measures.

The Grand Chamber is the highest judicial organ of the European Court of Justice. It consists of 17 judges, including ex officio a judge from the country against which the case is being tried, as well as the President of the European Court of Human Rights. The competence of the Grand Chamber is limited to exceptional cases, which are clearly defined. First, the Grand Chamber exercises appeal powers in the event that the parties disagree with the decision of the Chamber and declare this within 3 months. Secondly, the Grand Chamber considers in essence those appeals, when resolving which may affect the previous precedents of the European Court of Human Rights, and make decisions that contradict the existing ones. For example, the Grand Chamber is considering the complaint “Iliya Iliescu, Alexandru Lyashko, Andrei Ivantoch and Tudor Petrov-Popa v. Moldova and the Russian Federation”, precisely in connection with the fact that during the consideration of this complaint the existing practice of the European Court of Human Rights may be changed. Thirdly, the Grand Chamber hears inter-state complaints, but in the entire history of the European Court of Human Rights only one complaint “Ireland v. The United Kingdom” has been considered on the merits.

Consideration of a complaint at the European Court of Human Rights is a rather lengthy process. It can last from two to four years. As a rule, from the moment the complaint form is sent to its registration, it takes about 2-3 months, then from one to two years until the Judges Committee makes a decision on inadmissibility or sends a complaint to the RF Representative, an exchange of objections between the RF Representative and the applicant may continue within six months. , a decision on the subject of admissibility can be made a year and a half after the filing of the applicant's objections, and after another six months a decision on the merits can be made.

However, the applicant can ask the European Court for an extraordinary examination of his case or for an early notification of the RF Representative about the complaint filed. The first is carried out on the basis of Rule 41 of the Rules of the European Court and, as a rule, concerns the issues of “life and death”, that is, when it comes to the violation of such rights as the right to life and the right to prohibit torture, including the prohibition of extradition or deportation, to the country, where the complainant may face torture or death. The second is carried out on the basis of Rule 40 of the Rules of the European Court, the applicant, who asks for an early notification of the Representative of the Russian Federation, expects that the Representative, knowing that such a complaint has been submitted to the European Court of Human Rights, can influence the decision of this case in the Russian Federation.

It should also be noted that practice shows that clear and unambiguous complaints that relate to one or two Articles of the European Convention, and do not affect the full list of rights, pass more quickly through all stages of the consideration of a case in the European Court.

The decisions of the European Court of Human Rights are binding on the member states. The execution of judgments of the European Court of Human Rights is ensured by the Committee of Ministers of the Council of Europe, which uses political pressure mechanisms to achieve its goal. States are obliged to comply with the Court's decisions regarding the payment of just satisfaction within three months from the date of the decision.

According to the applicant, her labor rights were violated. A private company, due to financial irregularities, forced it to take a vacation at its own expense for a long time. The legislation of the Russian Federation does not provide for the possibility of sending employees on unpaid vacations at the initiative of the employer (the so-called "forced" vacations).

If employees, through no fault of their own, cannot fulfill the obligations stipulated by labor contracts concluded with them, then the employer is obliged to pay them downtime in amounts not lower than those established by Art. 157 of the Code.

That. the applicant, upon fulfilling all the conditions of admissibility of the complaint, may apply to the European Court of Human Rights.