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Chapter 4. Unification of interdictions in Russian and international law

Konstitutsionno the established primacy of the conventional norms of international law and the ratified international legal contracts the Russian Federation before norms of the intranational law extends the action and to practice of an establishment and realisation of legal interdictions.

It, in turn, staticizes questions of appropriate unification of interdictions of the Russian right in relation to international legal forbidding instructions.

The considerable number of the foreign states gives special attention to working out of a complex of interdictions of is administrative-legal character with a view of maintenance of appropriate level of legality and the law and order in the field of the government [139]. Including the special laws containing corresponding norms are accepted. Such acts name ethical codes of behaviour of public employees.

The analysis of the saved up experience of an establishment of legal interdictions in government system leads to a conclusion that it can and should be considered during reform and development of system of public service of the Russian Federation. In a number of the foreign states the administrative interdictions connected with a mode of public service, extend and on close relatives of the employee. The given experience deserves the most steadfast attention. Now in the Russian Federation there is such situation when close relatives of the civil servant carry out

Enterprise activity in its mode the official

The competence. The similar situation generates the conflict of interests, reduces competition level in the commodity and financial markets, and also promotes corruption displays in government system in Russia.

A.F.Nozdrachev notices, that in Federal Republic of Germany the civil servant has not the right to carry out any

Enterprise activity, as personally, and through authorised representatives [140].

Similar practice is observed and concerning civil servants of Japan to whom combination of posts and plurality in the commercial organisations is forbidden. However the civil servant has the right to act as the shareholder of such organisations [141 [142].

A number of interdictions on public service is established in the USA by Principles of ethical behaviour of government officials and serving 1990 and the Law on ethics in government agencies from 1978

Is administrative-legal interdictions in the Great Britain for

Civil servants are provided by the civil service Status, the Code of conditions of service and payment of officials, and also the General principles of behaviour of civil servants. In the legal literature that fact is noticed, that in England the government system is based on extremely rigid restrictive rules concerning behaviour of officials in comparison with others

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The states.

The similar situation is observed and in the USA where civil servants carry out the activity taking into account the rigid

Is prohibitive-legal measures [143 [144] [145]. The given position, according to J.K.Abramova, is connected by that at the initial stage public service of the United States of America was under construction taking into account the saved up legal

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Experience in this sphere in the Great Britain.

For example, in the civil service Code following legal interdictions are established:

- Disclosure of the confidential information is forbidden;

- Participation in political debates is not supposed;

- Discussion of orders of the minister is forbidden;

- Activity of the civil servant should not harm to reputation of public service, and also should not contradict it

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To interests.

In system of the German legislation interdictions contain in following laws: «About civil servants»; «About a disciplinary mode of public service», «About federal shots».

In legal system of France interdictions for public service are mainly established in the General status of public service [146]. According to the given certificate realisation of enterprise activity during public service passage is forbidden to the official. Employment by scientific, literary, artistic activity if they are not dominating [147] thus is authorised.

In the legislation of the mentioned foreign states the prestige of public service especially is marked and responsibility of officials before a society [148] is allocated.

The system of legal interdictions concerning system of the government of the Russian Federation is in many respects identical to the forbidding instructions established in the legislation on public service of the leading foreign states. It is connected by that organic laws of functioning of bureaucracy in many respects have universal character [149].

Unlike is administrative-legal sphere certain difficulties in practice are caused by process of unification of criminally-legal interdictions. For example, the General Declaration of human rights contains a number of following interdictions of a criminal procedure orientation: «Nobody should be exposed to tortures or the reference severe, brutal or degrading its advantage and punishment» (item 5); «Nobody can be subjected to any arrest, detention or punishment» (item 9); «Nobody can be condemned for a crime on the basis of fulfilment of any act or for inactivity which during their fulfilment did not constitute a crime under national laws or on international law». Punishment heavier, rather than what could be appointed cannot be appointed also when the crime has been made (item 11); « Nobody can be exposed to any intervention in its personal and home life, to any encroachments on inviolability of its dwelling, secret of its correspondence or on its honour and reputation... »(Item 12), etc.

The specified forbidding instructions actually produblirovany in norms of the Constitution of Russia (item 19, 21, 22, 24, 25, 35, 47, 49, 50, 54), and those, in

The turn, are concretised in positions of the Code of Criminal Procedure of the Russian Federation. However in the last other interdictions having the excellent maintenance are established also. As a whole the number of interdictions in criminally - remedial legislation of Russia is great enough [150].

So, as acknowledgement of their variety it is necessary to result a number of examples: an interdiction of application of the law contradicting Ugolovnoprotsessualnomu the code of the Russian Federation (item 7); the presumption of innocence, an interdiction of the debaring of the defendant for consideration of its business in that court and that judge to which jurisdiction it is carried by the Code of Criminal Procedure of the Russian Federation (item 8); prohibition to assign simultaneously functions of charge, protection, the permission of criminal case to the same state body (item 15); an interdiction of dispute on jurisdiction (item 36); an interdiction of refusal of the lawyer from protection of the suspect convicted (item 49); an interdiction of participation in process of the persons who are coming under to tap (item 62); an interdiction of use of the proofs received with infringement UPK the Russian Federation (item 75); inadmissibility of prolongation of holding in custody over 18 months (item 109); inadmissibility of carrying out of investigatory actions at night (item 164); an interdiction of drawing up of a sentence for assumptions (the item 302) etc.

Thus we will underline, that demands the further unification ugolovnopravovoj an interdiction for tortures, brutal and degrading advantage the reference.

At formal constitutional prohibition of tortures they are applied till now in Russia, including by employees of law enforcement bodies. In a certain measure it is connected with insufficiency (nerazrabotannostju) criminally-legal interdictions and sanctions. Despite the constitutional fastening and criminally-legal interdictions, infringements of the personal rights in the Russian Federation proceed. The situation essentially has not changed in

Current of some the years which have passed from the moment of ratification by the Russian Federation on May, 5th, 1998 of the Convention on protection of human rights and fundamental freedoms (Rome, on November, 4th, 1950). Legislative fastening of the constitutional guarantees and sanctions to their infringement in the Criminal code of the Russian Federation should pursue two aims: preventive and repressive. Thus it is necessary to consider practice of the international interdiction of tortures and inhuman treatment, including stated in decisions of the European court under human rights (ESPCH).

For more than 50-year-old period of activity ESPCH has creatively developed and concretised the basic ideas and Convention positions, principles and norms of international law, essentially has enriched system of guarantees of the rights and freedom. The guarantees which directly have been not formulated in the text of the Convention and Reports, have received fastening in the decisions of the given court which has become by precedents.

According to most ESPCH, its decisions provide not only consideration of concrete affairs, but also solve more the general problem: an explanation, protection and development of the right fixed by the Convention and by that promote observance by the states of the obligations accepted by them as contracting parties. At the decision of a concrete question within the limits of case in point ESPCH proceeds in the estimation not so much from close interpretation of norms of the Convention, how many from those concretising norms which have been earlier developed and formulated by the given court.

The guarantee containing in item 3 of the Convention can be an example of expansion of a legal protection of the person: «Nobody should be exposed neither to tortures, nor the reference brutal either degrading advantage or punishment». In our opinion this guarantee consist of two parts: 1) [151]

Interdiction of certain kinds of misbehaviour and 2) state obligations to do this interdiction real and effective by obligatory carrying out of investigation and punishment of the guilty.

The norms, similar items 3 of the Convention, are available in ch. 2 items 21 of the Constitution of the Russian Federation: «Nobody should be exposed to tortures, violence, reference another severe or degrading human advantage or punishment». However this norm does not contain concept «inhuman treatment or punishment». Accordingly, this concept does not join in norms of the federal acts concretising an interdiction of item 21 of the Constitution of the Russian Federation: UK, UPK, Wick, FZ «About holding in custody...», Etc.

Taking into account development of the Russian criminal law directed on protection of the personal rights, in particular introductions in UK the Russian Federation of articles 127.1 ("Human trafic") and 127.2 («slave labour Use»), it is necessary to recognise justified addition of the Criminal code of the Russian Federation with norm about a maintenance responsibility in serfdom. However these norms of the Criminal code of the Russian Federation do not cover all spectrum of possible infringements of the rights and freedom connected with imprisonment and forced labour.

At formal constitutional prohibition of tortures they are applied till now in Russia, including by employees of law enforcement bodies. In our opinion, in a certain measure it is connected with insufficiency (nerazrabotannostju) criminally-legal interdictions and sanctions. As the aggravating circumstance application of tortures is specified all in two norms Russian UK: the item "d" ch. 2 items 117 and ch. 2 items 302. We will agree about volume that it is necessary to add UK the Russian Federation with norm about an inhuman treatment and punishment interdiction as item 117 and 302 UK the Russian Federations not to the full give protection to the victim from such reference or punishment. Research of a question on an interdiction of tortures as, in our opinion, is necessary for spending personal right guarantees taking into account the Russian constitutional norm and norms of international law.

As an example of the disputable relation to concepts «tortures and inhuman treatment» can be business Kalashnikov against Russian

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Federations. The applicant complained of conditions of its maintenance in Magadan investigatory insulator ИЗ-47/1 (СИЗО-1), considering these conditions as tortures and inhuman treatment displays.

On the substance of the complaint the Government of the Russian Federation recognised, that «maintenance conditions in investigatory prisons in Russia are unsatisfactory and do not meet the requirements, shown to prison institutions in other countries of the Council of Europe. At the same time the government of the Russian Federation approved, that conditions of the maintenance of the applicant in imprisonment before trail cannot be considered neither as tortures, nor as the brutal or humiliating reference...» . In point 95 of Decision ESPCH from July, 15th, 2002 on this business the position according to which contains, the court believes "brutal" in situations of the deliberate reference if it lasted within several hours continuously and if in its result physical harm to the victim has been done or to it have been caused deep mental or corporal hurts. ESPCH believes, that under the reference «degrading advantage» it is necessary to recognise cases when it causes in victims of feeling of fear, inferiority and suffering, that as a result forces a victim to feel itself degraded and defective. Analyzing a problem of the form of the reference with the person who acts «degrading advantage» according to Convention article 3, ESPCH believes necessary at the decision of similar business to answer on questions: whether was the purpose of the reference the humiliation and violation of advantage of the person; Concerning consequences of such reference - whether they were reflected in this victim in the form incompatible with item 3 of the Convention. Thus it is necessary to notice, that absence of the designated purpose not always excludes [152]

Possibility of that ESPCH will confirm in obzhaluemom act infringement of article 3 of the considered Convention. Degree of sufferings and humiliations as the major characteristic of concept «degrading advantage the reference» should be essentially above degree of sufferings and humiliations in case of lawful acts or the punishment imposed according to the law.

Thus public authorities are obliged to provide such conditions of the maintenance of the person under guards who allow to guarantee respect for human advantage. Forms and methods of execution of the given preventive punishment should not cause to the person of any sufferings and deprivations in degree bolshej, than level which is inevitable at freedom restriction, and health and well-being of the person should be guaranteed in appropriate way taking into account requirements of a mode of the maintenance under стражей1.

Considering the given case, ESPCH recognised infringement of item 3 of the Convention, having designated in item 101-103 following arguments. The court has considered, that a mode of holding in custody to which the applicant within 4 years and 10 months has undergone, should cause it corporal hurts, and also humiliation its human advantage, that, in turn, should generate in it feelings of humiliation and violation of the person. In point 102 ESPCH has enacted, such conditions of the maintenance of the applicant under guards as insanitary conditions in the chamber, its excessive perepolnennost, unhealthy the applicant of a consequence of this mode of holding in custody, in a combination to duration of an imprisonment term in the given conditions it is necessary to equate to the reference degrading advantage [153 [154].

The Russian legislation in the field of interdictions and restrictions for military men on a number of parametres is unified sufficiently with international law.

The legal status of military men contains about a number of restrictions and interdictions. According to ch. 3 items 55 of the Constitution of the Russian Federation of the right and freedom of the person and the citizen can be limited by the federal act only in that measure in what it is necessary with a view of protection of bases of the constitutional system, morals, health, the rights and legitimate interests of other persons, maintenance of defence of the country and safety of the state. The given restrictions can be entered both concerning all population of the country, and in relation to separate categories of subjects, for example concerning military men.

Legal restrictions of the military men, concerning the separate rights and freedom, are caused by specificity of military service, and are necessary for high-grade realisation of the constitutional duty for Fatherland protection. Thereby protection of bases of the constitutional system, the rights and legitimate interests of other persons, defences of the country and safety of the state is provided. Similar restrictions and interdictions for military men are established by the Federal act «About the status of military men» and other regulatory legal acts of the Russian Federation. The being of a problem of restriction of the rights and freedom of military men consists in an establishment pravotvorcheskim body according to norms of the Constitution of the Russian Federation of borders of action of the rights and freedom. In the legal literature the point of view according to which considered restrictions of the rights and freedom should correspond to principles and the conventional norms of international law, and also the Constitution of the Russian Federation is stated. Proceeding from sense of position ch. 3 items 55

The constitution of the Russian Federation can draw a conclusion on conformity to international law and an admissibility in a democratic society of similar restrictions [155].

Infringement by military men of considered restrictions can act as the basis for putting on on them of disciplinary responsibility measures, in case of corpus delicti presence - for bringing to criminal liability.

In item 29 of the General Declaration of human rights and International pacts about human rights a number of the bases and conditions for possible restrictions is provided. First, they should be entered exclusively only on the basis of the law. According to the Constitution of the Russian Federation - on the basis only the federal act. Secondly, restrictions are applied only for maintenance and protection of the rights and freedom of other persons and as it is compatible to the nature of the rights. Under the Constitution of the Russian Federation - with a view of protection of the rights and legitimate interests of other persons. Thirdly, restrictions are entered exclusively in interests of satisfaction of requirements of norms of morals, for state security and public welfare maintenance. According to the Constitution of the Russian Federation - with a view of protection of bases of the constitutional system, morals, health, maintenance of defence of the country and safety of the state.

Taking into account stated it is possible to draw a conclusion, that specificity of military service predetermines necessity and an admissibility of restriction of the separate rights and freedom of the military men provided by the Constitution of the Russian Federation. The specified interdictions and restrictions extend on all categories of military men. They are entered exclusively by the law and should be proportional to protected interest, and also should consider a principle of an interdiction of excessive restrictions of the rights and freedom.

The federal act «About the status of military men» in item 10 item 7 provides interdictions with a view of the account of specificity of passage of military service. The given interdictions correspond to the restrictions established for civil servants by the Law «About bases of public service of the Russian Federation». The Basic purpose of considered interdictions consists in maintenance of appropriate passage of military service, and also in an establishment of obstacles to possible abusings from military men. And at last, they pursue the aim of creation of conditions for independence of office activity of influence someone.

Interdictions and the restrictions operating concerning military men, are classified depending on action sphere on following four groups:

- In political sphere;

- In economic sphere;

- Restrictions of a freedom of speech and the press;

- The interdictions caused by special character of military service.

The further unification with international law is demanded by interdictions,

Established in the labour legislation of the Russian Federation.

The concept of forced labour, is formulated in the international legal acts. For example, in the Convention the SQUANDERER № 29 from 1930 g, contains concept definition «compulsory or obligatory work» as any work or the service demanded from someone under the threat of punishment in which relation the given person has not expressed on a voluntary basis the services.

The specified Convention has created a fundamental basis to the subsequent international certificates and development of national legislations. Thus, as it is truly underlined in the legal literature, for the present moment its basic maintenance regulating use of forced labour in colonies, is not well-founded. Taking into account action of an absolute interdiction of forced labour of position of the Convention, certainly, demand modification. In particular, it is necessary to fix in it an absolute interdiction of forced labour, accurately having formulated signs on which pravoprimenitel can accurately identify the considered phenomenon [156].

In development of institute of an interdiction of forced labour the Convention the SQUANDERER № 105 from 1957 g was beyond labour relations and has fixed absolute character will lock forced labour in independence of a field of activity.

It is necessary to agree with opinion that despite Convention ratification № 29 USSR in 1956, the national legislation cardinally has not changed during this period. So, only in the early nineties of the XX-th century in Russia the question of an interdiction of forced labour became actual in connection with declaration at the constitutional level of a principle of freedom of work. The current Labour code of the Russian Federation has fixed for the first time concept of forced labour and has defined forms of its display. According to Law item 2 forced labour is understood as performance of work under the threat of application of punishment or violent influence. We will underline, that the given legislative definition is truncated in comparison with the definition established in the Convention № 29. It is caused by that the Labour code of the Russian Federation defines forced labour only through one element, namely through work under the threat of punishment, taking out for frameworks of a definition the second essential sign in the form of absence of voluntariness of the consent of the person on performance of such work. The divergence between norm of the Russian labour legislation and norm of international law in this case is available.

In initial edition of item 4 of the Labour code of the Russian Federation, the expanded concept of forced labour including and works in the conditions of nonpayment of wages, and also neobespechenija the worker means of an individual defence or to health and a life of the worker was to impractical and contradicting other positions of the labour legislation.

The federal act № 90-FZ from June, 30th, 2006 has eliminated the lack noted above. However the legislative definition of forced labour remained in a former variant that demands corresponding unification with norms of international law. In operating edition of item 4 of the Labour code of the Russian Federation suffers one more lack. Among kinds of the works which are not concerning forced labour, the following is designated:

- Work in the conditions of introduction extreme or the martial law;

- Work in the conditions of extreme conditions.

Thus the force majeure designated in paragraph 4 ch of 4 items 4 of the Labour code of the Russian Federation, simultaneously also are the basis for introduction extreme or the martial law. Hence, their repeated reproduction is excessive. Other treatment of exceptions will lead to the contradiction with the international certificates.

Let's especially notice that circumstance, that instructions of the special legislation basically correspond to the international certificates about a forced labour interdiction. However the understanding of the given norms is complicated partly by absence of the general terminology. Taking into account it in the legal literature the offer on introduction in the concept legislation «socially necessary works» is stated.

Let's agree with a position according to which with a view of protection of laws of master and servant of the citizens involved in socially necessary works within the limits of extreme or the martial law, it is necessary to fix in details an order of attraction of persons to are similar to works, by means of acceptance of additions in the federal act «About population employment in the Russian Federation».

The following sphere of legal regulation demanding especially careful unification with international law, antimonopoly legal interdictions and restrictions [157] act.

As antimonopoly law kernel the interdiction of anticompetitive agreements and the adjusted actions acts. In the given area following principles should be observed and to be carried out corresponding actions:

- The similar interdiction demands obvious introduction in the national antimonopoly law of division of agreements and the adjusted actions depending on their influence on a competition condition;

- The establishment of the absolute presumption of restriction of a competition agreements and the adjusted actions with unequivocal definition in the law by instructions of their accurate signs is necessary;

- It is necessary to establish an interdiction of agreements and the adjusted actions in which relation the absolute presumption of restriction with them of a competition operates. Thus harm to public interests, well-being of all society from agreements getting under an interdiction and the adjusted actions is so considerable, that exceptions of the such will lock should not be;

- In relation to agreements and the adjusted actions which do not get under an interdiction per se, the legislator establishes an interdiction if their negative influence on a competition is proved, i.e. restriction of a competition by them, its bar of claim by lapse of time or elimination.

However if from an interdiction per se exceptions it is not provided, an interdiction of agreements and the adjusted actions in which relation the law does not establish the absolute presumption of restriction of a competition, it can be supplemented with rules on which such agreements admit admissible even if they limit a competition (a so-called rule of a rationality), and also instructions legkoobnaruzhivaemyh in practice of signs of agreements and the adjusted actions which transform them in admissible even if their negative influence on a competition will be proved.

In the antimonopoly law of interdictions for agreements limiting a competition and the adjusted actions, introduction of a rule of a rationality and other exceptions allow the legislator to establish an establishment subsequently administrative and the criminal liability for infringement of such interdictions.

As the defining moment of an interdiction anti competitive agreements and the adjusted actions limits of its action act. The antimonopoly law is based mainly on an exterritoriality. In other words, it is applied and to the actions made outside of state territory that constitutes a part of the doctrine of the right both in the European Union, and in the USA. The exterritoriality of the national antimonopoly law allows to extend regulation to all spectrum of relations which directly influence a condition of a competition of the national market, but they are carried out outside of territory of the given state. So, the interdiction of monopolistically activity fixed in the national legislation owing to exterritorial action extends and on international kartelnye agreements, and on cases of abusing a leading position transnational corporations.

As an example it is possible to specify, that Eurocommission, since business of 1985 concerning participants of price cartel in the wood market, applies item 81 (1) of the Contract on the European community, containing

The interdiction for the agreements limiting a competition in relation to foreign legal bodies, also imposes on subjects of the international cartels penalties on the basis of norms of the European antimonopoly law.

Further consideration by court of EU of statements for the appeal of the decision of Eurocommission on the given case has confirmed legality and validity of application with Eurocommission of item 81 (1) of the considered Contract concerning the foreign companies, participants kartelnogo agreements. In legal system of the USA in practice the case of application of the Law of Sherman to the foreign person which actions limited a competition in the USA took place. So, in 1945 the court, considering case about the international cartel of manufacturers of aluminium, has applied norm specified national the law concerning the Canadian company which was the participant of such cartel.

Within the limits of the designated tendency the Russian legislation, namely the Law from March, 22nd, 1991 № 948-1 «About a competition and restriction of monopolistically activity in the commodity markets» found the application in relation to actions or the agreements made or concluded outside of territory of Russia, in a case if similar actions or agreements resulted (or could result) in competition restriction in Russia or caused other negative consequences in the Russian home market.

Taking into account definition of the economic concentration, fixed in point 21 of article 4 of the Law on competition protection, in the form of the transaction, other actions which realisation influences a competition condition, and positions of chapter 7 of the analyzed law containing accurate criteria of definition of similar transactions, it is possible to come to conclusion that the legislator has obliged the Russian and foreign businessmen to observe norm of the state control concerning the economic concentration, provided by the antimonopoly law.

However such unduly narrow definition of cases of exterritorial operation of law about competition protection, certainly, simplifies a problem of its application for public authorities, but simultaneously leaves out of an operative range of an interdiction for anticompetitive agreements the international cartels.

Agreements and actions come under to an interdiction, in a case if they вБрвбіш to any of the consequences designated in ch. 1 items 11 of the Law (for example if they result or can lead «to an establishment or maintenance of the prices (tariffs), discounts, extra charges (surcharges), margins, to increase, decrease or maintenance of the prices at the auctions, to section of the commodity market by a territorial principle, volume of sale or purchase of the goods, assortment of the realised goods or structure of sellers or buyers (customers)», and also to others specified in ch. 1 items 11 to consequences).

The legislator, making definition, as signs for qualification of agreements falling under an interdiction and actions has specified in real or possible consequences of the agreement. Thus to establish conformity or discrepancy of the separate agreement to the antimonopoly law it is obviously possible only after studying of results of influence of the agreement on the further behaviour of its parties.

The separate attention is deserved by questions of unification of the Russian legislation on a slavery and slave-trade interdiction in relation to the international certificates.

Constant transformation of the Russian legal system, its integration into the international legal space, participation of Russia in activity of the Council of Europe and realisation of the obligations taken up by it with necessity staticizes a question on effectiveness of steps of the Russian Federation in business of building of an original lawful state.

The institute of the rights and freedom of the person has stepped for a long time already over frameworks of national legal space, has got general, universal character, and a priority of human rights in system obshchesotsialnyh values is proclaimed in universal and European certificates [158 [159] [160]. Among them General the Declaration of human rights of 1948, accepted in 1950 and become effective in 1953 the European convention on protection of human rights and the cores

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Freedom.

According to positions of item 4 of the General Declaration of human rights nobody should contain in slavery or serfdom, the slavery and a slave-trade are forbidden in all of them kinds [161].

The European convention on protection of human rights and fundamental freedoms produblirovala the major positions of the General Declaration of human rights, including the principles directed on maintenance of political, civil, social and economic, cultural human rights. Besides, the European convention fixes obligations of the state-participants on maintenance of the basic civil and political rights:

- The laws of procedure opening principles of proceeding (item 5 «the Right to freedom and inviolability of person», item 6 «the Right to fair proceeding», etc.), together with substantive laws (for example, item 1 «the Obligation to observe human rights» and item 2 "Right to life", etc.) [162].

The considered international certificate has fixed

The legal personality of the person and in international legal relations. The convention recognises for all citizens of the European states the fundamental laws established in it and freedom of the person. The European convention has the status of direct action and is obligatory for observance and execution by the state-participants after signing corresponding by them and ratification. The introduction of Russia into the Council of Europe means automatically necessity of performance more than three tens requirements of the European community. The parliament of Russia ratified the European convention and corresponding reports to it (except the Report № 6) in 1998

According to article 4 of the given convention nobody should contain in slavery or serfdom, and also should not be involved in compulsory or obligatory work. Before us an interdiction of any forced labour. In the maintenance the European convention does not open definitions of categories "slavery", "serfdom". However in a number of other documents they are understood as certain forms of the control over a personal freedom, and also oppression conditions at which the person cannot change them or which it cannot avoid [163 [164] [165].

At the moment slavery are exposed to general condemnation.

First really world contract on human rights

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The Convention on slavery of 1926 was. In the specified document the slavery is treated as a condition or position of the person, in which relation property right elements are realised, and the slave-trade is understood as the certificate of capture, acquisition of the person, the order by it with a view of its reference in slavery, and also any certificate interfaced to acquisition of the slave with a view of its sale or an exchange or the certificate on sale or an exchange of the person, got with that end in view, no less than in general any certificate on trade or transportation of slaves.

The convention on slavery of 1926 has paid attention for the first time to danger of compulsory or obligatory work which can lead to creation of the position similar to slavery.

The Additional convention accepted in 1956 on abolition of slavery,

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Slave-trade and institutes and the customs similar to slavery, it is directed on an intensification of national and international efforts in this area. According to it each state-participant undertakes to accept all possible both necessary legislative and other measures carrying out gradually and whenever possible in the shortest term full cancellation or abolition of institutes and customs irrespective of, whether they are covered by definition of the slavery containing in the Convention on slavery of 1926

The reference of other person in slavery or declination of other person in slavery, declination of other person to return of or the person dependent on this other person, in the serfdom which is growing out of institutes or customs, similar to slavery, or attempt at fulfilment of such actions, or partnership in them, or participation in secret arrangement for fulfilment of any of these actions is considered a criminal offence punishable under laws of the state-participants of the Convention.

The convention of 1956 has once again fixed slavery and slave-trade definition, has established definitions of concepts of the slave and the person who are in serfdom. According to the given certificate, under the slave it is necessary to understand the person who is in position or a condition of slavery. The person who is in serfdom is treated as the person who is in a condition or position, created as a result of institutes or the customs similar to slavery [166].

The additional Convention of 1956 contains rather essential additions to the Convention of 1926. The first it is considerable bolshee attention gives to institutes and the customs similar to slavery.

Among them:

- Debt bondage as position or the condition which has arisen owing to zaklada by the debtor in maintenance of a debt of the personal work or work of the person dependent on it provided that properly defined value of performed work will not become engrossed in reading in repayment of a debt or duration of this work is not limited, and its character is not defined;

- The serf condition defined as using by the earth in which course the user is obliged according to the law, custom or the agreement to work on the earth belonging to other person and also to perform certain work for other person for compensation or without that, under condition of impossibility of change of a similar condition;

- Any institute or custom, in which force: the woman promise to give out or actually marry, in the absence of its right of refusal; the husband of the woman, his family has the right to transfer to its other person for a payment or otherwise; the female person the ambassador of death of the husband descends another;

- Institute and custom, in which force the minor is transferred by the parents (or the trustee) to other persons for a payment or without that for the purpose of the subsequent operation of the given child or its work [167].

The absolute interdiction of slavery and slave-trade produblirovan and in the International pact «About the civil and political rights» 1966 according to which item 8 nobody should contain in slavery, and it is forbidden in all its kinds, nobody should contain in serfdom [168].

In the Constitution of the Russian Federation and the operating national legislation does not contain positions similar to the international documents. Thus the Constitution of the Chechen Republic in item 19 fixes, that everyone has the right to freedom and inviolability of person and nobody can contain in slavery.

Establishment in ch. 4 items 15 of the Constitution of the Russian Federation of position about inclusion of the conventional principles and norms of international law, and also international treaties in structure of legal system of Russia, automatically mean, Russian Federations and fundamental freedoms, including regarding an interdiction of slavery and a slave-trade item 4 of the General Declaration of human rights, item 4 of the European convention on protection of human rights has extended to the territory action of item 8 of the International pact «About the civil and political rights».

In Russia cases of a human trafic and the reference in slavery are still frequent. As a scandalous example it is possible to result a case when in April 2003 g FSB has released in Urus-Martanovsky area of the citizen of V.Kalinkina which has spent in total in slavery nine years. Before longer time since 1989 sojourned in V.Epishin's slavery [169 [170] [171].

The slave-trade is carried out mainly in the form of compulsorily-labour or sexual operation. According to a position of the criminalists, similar acts should be estimated as involving of people in

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Forms and the institutes similar to slavery. As forms prinuditelnotrudovoj operation can allocate: slavery, house slavery, a human trafic, farm work, recruitment of people for the purposes prinuditelnotrudovoj operation, gladiatorial fights, criminal manipulation in

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Labour legislation areas, child labour, etc.

Norms of the international criminal law about struggle against slavery and a slave-trade did not receive earlier the fastening in the national criminal legislation [172]. Separate categories from the above-stated named acts came within the purview of item 125.2 of the Criminal code of RSFSR.

The criminal code of the Russian Federation has reproduced this norm in item 152 in which responsibility for trade in minors has been provided, and also actions concerning the minor in the form of its transfer and occupancy by it. Besides, given article provided the criminal liability for actions concerning minors not only for the purpose of their return in slavery, but also involving of the minor in fulfilment of crimes, withdrawal at it bodies or fabrics for transplantation. Thus all article did not establish measures of responsibility for trade in the persons who have reached of full age age.

Only in February, 2003 the Committee on the legislation of the State Duma of Federal assembly of the Russian Federation has spent parliamentary hearings in which course questions of counteraction to a human trafic were considered, and also the bill concept «About counteraction to a human trafic» was discussed.

The federal act from December, 8th, 2003 № 162 «About modification and additions in the Criminal code of the Russian Federation», become effective on December, 11th, 2003 [173] had been made additions to the Criminal code of the Russian Federation in the form of the item of item 127.1"the Human trafic», 127.2"Use of a slave labour», and item 152 has been recognised by become invalid.

In item 127.1 of the Criminal code of the Russian Federation responsibility for a human trafic in the form of purchase and sale, its recruitments, transportation, transfers, concealment or the receptions made with a view of its operation is established.

As the qualified kinds of the given category of crimes are specified:

- Fulfilment of the same act concerning two and more persons;

- Concerning obviously minor;

- The person with use of the official position;

- With moving of the victim through frontier or with its illegal deduction abroad;

- With use of forged documents, and it is equal with withdrawal, concealment or destruction of the documents proving the identity;

- With application of violence or threat of its application;

- With a view of withdrawal at the victim of bodies or fabrics, and also entailed on imprudence death;

- Causing of heavy harm to health of the victim or other heavy consequences.

To especially qualified the criminal law carries all acts set forth above, but made in the way dangerous to a life and health of people, and also made by the organised group.

In note point 1 to considered article the bases of clearing of the criminal liability contain. So, the person who for the first time has made purchase and sale of the person (or its recruitment, transportation, transfer), concealment or the reception made with a view of its operation, or the same act made concerning two or more persons, voluntary released the victim and promoting disclosing of the committed crime, is released from the criminal liability if in its actions does not contain other corpus delicti. In point 2 of the same note the legislative definition of operation of the person as its uses for employment by prostitution and other forms of sexual operation, and also a slave labour, serfdom [174] is given.

Article 127.2 UK the Russian Federation provides responsibility for slave labour use, that is use of work of the person in which relation the powers inherent in the property right in case the person for the reasons not dependent on it cannot refuse performance of works (services) are carried out.

As qualifying structures are designated:

- Fulfilment of the same act concerning two or more persons;

- Concerning obviously minor;

The-person with use of the official position;

- With application of blackmail, violence or with threat of its application;

- With withdrawal, concealment or destruction of the documents proving the identity.

The criminal law carries the same acts, but the death which has entailed on imprudence or causing of heavy harm to especially qualified structures to health of the victim, and also other heavy consequences, or made by the organised group.

Taking into account stated, it is possible to notice, that the Russian Federation within the limits of is standard-legal base fulfils the basic requirements of the international conventions in the field of counteraction to slavery and a slave-trade by means of corresponding unification of the legislation. However in practice it is far not all legal interdictions are properly realised, and slavery institutes in the criminal world continue the vigorous activity.

As not less important problem of unification of interdictions in the Russian legislation reduction to uniformity of forbidding instructions in the field of the customs legislation acts.

Regarding acceptance and coming into force of the standard legal acts applied in customs business, 2009-2010 became, perhaps, the most sated. It is connected with formation of the uniform customs union, which basis three agreeing states (the Russian Federation, the Republic Kazakhstan and Byelorussia) have put in pawn in the Contract from October, 6th, 2007 «About creation of the uniform customs territory and customs union formation» (the contract is ratified by the Federal act from 27.10.2008 № 187-FZ).

The basic standard document defining legal regulation of relations, the goods connected with moving through customs border of the customs union, certainly, is the Customs code of the customs union (the appendix to the Contract on the Customs code of the customs union, accepted by the decision of Interstate Council of the Euroasian economic community (EvrAzES) at level of heads of the states from 27.11.2009 № 17) which is applied in territory of the Russian Federation since July, 1st, 2010.

Also since July, 1st, 2010 have become effective accepted on December, 11th, 2009 the Agreement on the reference of production which is coming under to an obligatory estimation (acknowledgement) of conformity, on the customs union customs territory, the customs union Agreement on sanitary measures, the customs union Agreement on veterinarno-sanitary measures, the Agreement of the customs union on quarantine of plants. At the same time since January, 1st, 2010 according to the decision of Interstate Council EvrAzEs from 27.11.2009 № 19 in territory of the Russian Federation the Agreement on an order of introduction and application of the measures mentioning foreign trade by the goods, on the uniform customs territory concerning the third countries from June, 9th operate the Agreement on uniform measures of not tariff regulation concerning the third countries from January, 25th, 2008,

2009, the Agreement on licensing rules in sphere of foreign trade in the goods from June, 9th, 2009 (further - International agreements).

The uniform list and Positions about application of restrictions are approved by point 2 of the decision of Interstate Council EvrAzEs from 27.11.2009 № 19.

The customs union commission the decision that since January, 1st is accepted

2010 of the Government of Byelorussia, Republic Kazakhstan and Russian Federation apply in trade with the third countries interdictions and restrictions to the goods included in the Uniform list, according to Positions about application of restrictions.

Thus according to point 9 of the decision of Interstate Council EvrAzEs from 27.11.2009 N Byelorussia, Republic Kazakhstan and the Russian Federation in mutual trade do not apply 19 licensing and quantitative restrictions.

Thus, since January, 1st, 2010 customs bodies of the Russian Federation provide observance of the interdictions established according to International agreements and restrictions exclusively concerning the goods included in the Uniform list.

In the Russian Federation measures of customs-tariff regulation, interdictions and the restrictions mentioning foreign trade by the goods, provided by the international treaties constituting contract-legal base of the customs union, and certificates of bodies of the customs union accepted according to specified contracts are applied.

In cases and an order which are provided by the international treaties constituting contract-legal base of the customs union, certificates of bodies of the customs union, the Russian Federation applies separate measures of customs-tariff regulation, interdictions and restrictions unilaterally according to the legislation of the Russian Federation.

At the same time at introduction by the Russian Federation of interdictions and restrictions unilaterally, and also at application in the Russian Federation of measures of the customs-tariff regulation which are distinct from measures, applied in one or several member states of the customs union, means and methods of maintenance of their observance, established according to international treaties of the Russian Federation and the Federal act from 27.11.2010 № 311-FZ "On customs regulation in the Russian Federation" (in red are applied. From 04.06.2014).

In the Customs code of the Russian Federation from 28.05.2003 № 61-FZ definition of interdictions and restrictions was absent, therefore the customs legislation used the definition established according to the legislation on state regulation of the foreign trade activity.

So, in article 2 of the Federal act from 08.12.2003 № 164-FZ «About bases of state regulation of the foreign trade activity» concept «not tariff regulation» is defined as a method of state regulation of foreign trade by the goods, carried out by introduction of quantitative restrictions and other interdictions and restrictions of economic character.

With coming into force of the Customs code of the customs union terms «interdictions and restrictions» and «measures of not tariff regulation» have received unequivocal definition.

Interdictions and restrictions according to subparagraph 8 of point 1 of article 4 of the Customs code of the customs union are understood as a complex of the measures applied concerning the goods, moved through the customs border, including:

- Measures of not tariff regulation;

- The measures mentioning foreign trade by the goods and entered proceeding from national interests;

- Special kinds of interdictions and restrictions of foreign trade by the goods;

- Measures of the export control, including concerning military goods;

- Measures of technical regulation, and also sanitarnoepidemiologicheskie, veterinary, quarantine, phytosanitary and radiating requirements which are established by international treaties of member states of the customs union, decisions of the Commission of the customs union and standard legal acts of member states of the customs union, published according to international treaties of member states of the customs union.

Legal consequences of non-observance of interdictions and the restrictions established according to the legislation on state regulation of the foreign trade activity, can be:

- Refusal in release of the goods;

- Charge of customs payments and penej (in cases of non-observance concerning the goods of interdictions and restrictions of economic character);

- Attraction to administrative responsibility depending on qualifying signs of perfect act as regards 3 articles 16.2 either as regards 1 or as regards 2 articles 16.3 of the Code of the Russian Federation about administrative violations.

Thus it is necessary to notice, that absence in action of the Customs code of the Russian Federation unequivocally certain concept of interdictions and restrictions created some difficulties in pravoprimenitelnoj activity of customs bodies and vessels [175].

Such blank is to a certain extent filled by the Decision of Plenum of the Supreme Court of the Russian Federation from 24.10.2006 № 18 «About some questions arising at vessels at application of the Special part of the Code of the Russian Federation about administrative violations».

By point 31 of the named Decision of Plenum of the Supreme Court of the Russian Federation it is explained, that in cases of application of item 16.3 KoAP the Russian Federation it is necessary to differentiate interdictions and restrictions of economic character, and also interdictions and restrictions which do not carry economic character. Thus it is necessary to start with the purpose of an establishment of a concrete interdiction and restriction.

As restrictions of economic character in the Decision Plenum of the Supreme Court of the Russian Federation named the following:

- Interdictions in the form of quantitative restrictions;

- Quota introduction;

- Licensing;

- Granting of the exclusive right to export and (or) import of separate kinds of the goods (article 21, 23, point 1 of a part of 1 article 24, Law article 26 № 164-FZ);

- Special protective measures (for example, the special duty or an import quota);

- Antidumping measures;

- Compensatory measures (countervailing duty).

The given restrictions and interdictions are applied according to Federal act article 27 № 164-FZ and the Federal act from 08.12.2003 № 165-FZ «About special protective, antidumping and compensatory measures at import of the goods» (for example the licence for import of meat, treacle starched). Observance of interdictions and restrictions of economic character is required at a premise of the goods under customs modes of release for internal consumption, export, processing on the customs territory and processings for internal consumption (article 163, 166, 173 and 187 TK the Russian Federation).

To interdictions and the restrictions which are not carrying economic character, Plenum of the Supreme Court of the Russian Federation has carried those interdictions and restrictions which are entered proceeding from national interests and the purposes established by item 32 of the Federal act № 164-FZ:

- Licences in the cases provided by points 2 and 3 parts of 1 article 24 of the given certificate;

- The licence for import and military goods export, and also the goods and the technologies used for creation of the weapon of mass destruction and means of its delivery;

- Interdiction for import for territory of the Russian Federation of a waste with a view of their burial place and neutralisation;

- The permission of the Ministry of Internal Affairs of Russia to import to territory of the Russian Federation of the weapon, the conformity certificate etc.

As a whole judiciary practice testifies, that arbitration courts, considering the disputes connected with observance of interdictions and restrictions at moving of the goods through customs border of the Russian Federation, till July, 1st, 2010 were guided among other by the given explanation of Plenum of the Supreme Court of the Russian Federation at the decision of a question on correct qualification of actions of participants of foreign trade activities in case of attraction by their customs body to administrative responsibility.

At realisation of customs registration and the customs control customs bodies and their officials have not the right to establish requirements and the restrictions which have been not provided by certificates of the customs legislation or other legal acts of the Russian Federation.

Summing up to a statement of questions of unification of interdictions in Russian and international law, it is necessary to underline, that the given process has non-uniform character and depends on this or that sphere of legal regulation. So, it is possible to establish, that in the field of labour and criminal law unification of interdictions in the Russian Federation is still characterised by presence of variety of problems and omissions. Concerning customs, constitutional, administrative and of some other branches of work on unification of the Russian legislation have the big degree of intensity, and a coordination of interdictions Russian and international law in the given sphere it is more perceived.

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A source: Tolmachyov Vyacheslav Vladimirovich. TECHNICAL AND LEGAL MEANS OF ESTABLISHING AND IMPLEMENTING BANKS IN RUSSIAN LAW (QUESTIONS OF THEORY AND PRACTICE). Thesis for the degree of candidate of legal sciences. Saratov —2014. 2014

More on topic Chapter 4. Unification of interdictions in Russian and international law:

  1. §1. A problem of unification and harmonisation in the international private law. The first attempts of international-contractual unification of norms about the status of legal bodies.
  2. 5.2. Legislation unification as the special tendency of maintenance of unity Russian and international law
  3. Chapter 2. International legal unification of the rules of substantive law about a concession of incorporeal rights
  4. Head IL Unification and harmonisation of norms of the international private law concerning definition of a nationality of legal bodies.
  5. Chapter 1. «The INTERNATIONAL HUMANITARIAN LAW» And «INTERNATIONAL LAW of HUMAN RIGHTS» AS CONCEPTS And INTERNATIONAL LAW BRANCHES
  6. the Chapter III. The CONCEPT of PERCEPTION of SOURCES of INTERNATIONAL LAW LEGAL SYSTEM of the RUSSIAN FEDERATION (ch. 4 items 15 of the Constitution of the Russian Federation of 1993)
  7. Chapter 3. THEORIES of the PARITY of NORMS of the INTERNATIONAL HUMANITARIAN LAW And INTERNATIONAL LAW of HUMAN RIGHTS
  8. the Chapter II. The PROBLEMS CONNECTED With DEVELOPMENT of FORM OBEKTIVIROVANIJA of NORMS of INTERNATIONAL LAW, Within the limits of the DOCTRINE ABOUT INTERNATIONAL LAW SOURCES
  9. the International convention on unification of some rules on the bill of lading (Gaagskie, Gaagsko-Visbijsky rules) as a stage of occurrence and development of rules of law about the cargo contract of affreightment
  10. CHAPTER 5. The BIAS of the RUSSIAN LEGISLATION ­ And INTERNATIONAL LAW
  11. § 2. A role of the international legal interdictions in criminalisation of the acts interfaced with rejderskimi by captures
  12. Leadership of the Constitution of the Russian Federation in its parity with norms of international law and international treaties.
  13. § 2. Essence of differentiation of the international humanitarian law and international law of human rights as international law branches
  14. a unification method in the mechanism mezhdunarodnoyopravovogo regulations of international trade by services
  15. the Chapter I the Basic approaches to essence and definition of a place of the international commercial law (MTP) in system of the international public law (Ml 111)
  16. Chapter 1. The General characteristic of legal interdictions: teoretikopravovoj the analysis
  17. the First chapter. The CONTRACT of the INTERNATIONAL PURCHASE AND SALE of the GOODS In SYSTEM of CIVIL LAW of the RUSSIAN FEDERATION