Transcript Право на равенство/недискриминацию

Right to equality/non-discrimination:
Comparative analysis of Russian and German legislation.
Rechts auf Gleichheit/ Non-discriminirung: Vergleichsanalyse
russisch – deutscher Legislation
Право на равенство/ недискриминацию:
Сравнительный анализ законодательства России и Германии
Olga R. Gulina
Республика Башкортостан - часть Российской Федерации
Republic of Bashkortostan is the part of Russian Federation
In 2004 the range of foreign
commerce of
Bashkortostan was
3840.6 million USA
dollars, and the export
range was 3525.9 million
US dollars, the import
range – 314.7 million US
dollars.
91 countries, including 80
neighbouring countries
and 11 far countries - the
members of UIC,
became commerce
partners of the republic.
The ten top countries are
Great Britain,
Kazakhstan, Ukraine,
Italy, China, Germany,
Gibraltar, Netherlands,
Switzerland, Finland.
The Geographic Situation
143,6 thousand sq.km
The area of Bashkortostan Republic
is 143,6 thousand square
kilometers (0,8 percent of the
whole area of Russian
Federation). It covers the major
part of the South Urals, the plains
of the Bashkirian foothills of the
Urals, adjoined to it and hill-andplain belt of the Bashkirian Trans
Urals. It borders on Perm and
Sverdlovsk regions in the north;
Chelyabinsk region - in the East;
Orenburg region - in the southeast, the south and south-west;
Tatarstan Republic - in the west;
Udmurt Republic - in the northwest. Its territory spreads for 550
km from the north to the south and
from west to east - for more than
430 km.
Population of Bashkortostan
4110,3
thousand people
There are 4 million and 110 thousand
people in this republic (2,8 percent of
the Russian Federation population).
The Republic takes the 7th place in
terms of population among Regions
and Republics of Russia, including
Moscow and Saint Petersburg.
Bashkortostan is an area of high
density of population: there are 28,6
persons for one square km. 64,8
percent is the part of urban population
and 35,2 percent - country people.
There are 47,3 percent of men and
52,7 percent of women among the
whole number of population.
Bashkortostan is an international
republic. More than 70 nationalities live
in its territory. There are: Russians,
Bashkirians, Tatars, Chuvashes, Maris,
Ukrainians. Russian is the international
communication language here.
Актуальность проекта
The urgency of the theme of research.
The right on equality and interdiction on discrimination are
one of the most important and dynamically developing
areas. Concepts "equality" and "discrimination" is
necessary to consider from two positions: as principles of
the international and Russian law and as the
independent law.
The Russian legislation, proclaiming a principle of equality of
the rights and freedoms, in essence does not contain an
interdiction of discrimination, and the term
"discrimination" is used extremely limited.
There are no legal acts in the country containing any
definition of discrimination. Thus, the concepts
"discrimination", " restriction of the rights ", " legal or
illegal realization of distinctions "don’t remain clear
enough for the professional lawyers and for general
public. No clear position of legislators and law
enforcement agencies is traced.
What is the difference
There is no anti-discrimination legislation in modern Russia. There is
neither a conceptual approach to the ideas of equality and nondiscrimination in Russia until now. In Russia, the right to equality is
understood as "equality of stomachs", everyone should eat either
potatoe with herring, or caviar and champagne. In Russia, it is not
accepted to speak about equality of opportunities or equality of
rights. To us, Russians, the concept of non-discrimination is closer,
that is an interdiction of equal attitude in a unequal situations or of
unequal attitude in equal situations. In Germany, following the
European liberal traditions, they speak about equality of rights and
of equality before the law. It is to expect that several years will pass
before the legal consciousness of the Russian population and of the
representatives of Russian authorities will change. Taking into
account that the Russian and German legal systems are close, the
planned study will lead to apprehend techniques and mechanisms
used by the German legal order with the aim to implement them in
the internal order of Russia.
The subject/object of my project
The subject of research is the
national anti-discrimination
legislation of Germany as a part of
the Council of Europe and the
European Union.
The national anti-discrimination
legislation is "the indicator of
health" of a society for it reflects
the perception of the concept of
equality by separate people,
groups or by the society as a
whole.
The object of research is the
evolution of the right of
equality/non-discrimination in
Germany and in the Russian
Federation.
The National Minorities in RB
According to the Census of 2002
there are 29.8 per cent of Bashkirs
(1.2 mln.), 36.3 per cent of
Russians (1.5 mln.), 24.1 per cent
of Tatars (990 thousand) in RB.
Since the recent Census the
number of Bashkirs increased by
7.9 per cent or by 357.5 thousand
people, the amount of Russians
decreased from 39.3 per cent to
36.3 per cent; Tatars: from 28.4 to
24.1 per cent., other peoples in
common from 10.4 to 9.8 per cent.
The common numerical increase
of population in RB was 161.1
thousand people (4.1 per cent).
So there are 60 per cent of
Bashkirs in the Republic of
Bashkortostan and more than 40
per cent live outside.
Problem of the right of equality/non-discrimination in the
context of (national) minorities.
Situation in Germany
Historically, the Constitutions of Germany knew articles on the
protection of the rights of national minorities. This “constitutional
tradition” to protect national minorities was reflected in the provisions
of the Constitutions of 1849 and of 1919 and the Constitutions of the
German Democratic Republic of 1949 and 1974. But it is not present
in the German Basic Law of 1949, even not after the constitutional
reform of 1994.
However, some of the Constitutions of the German Länder do have
special protection clauses for minorities. For example, article 5 part
3 of the Constitution of Saxony of 1992 establishes such a right, and
it furthermore does not demand the German citizenship as an
obligatory element for the recognition as national minority. The
Constitution also recognizes foreign minorities insofar as they have
a residence permit.
Traditional minorities in Germany are Friezes (130000 persons); Sorbs
(60000 persons) and Danes (50000 persons). The Constitutions of
the Länder where national minorities live generally establish special
articles on their protection (e.g.: the Constitution of the Land
Schleswig-Holstein concerning Friezes and Danes; the Constitutions
of the Land Brandenburg and Saxony concerning Sorbs, etc.).
The constitutions
Article 3 #3 of the
Constitution of Germany
states:
“No person shall be favored
or disfavored because of
sex, parentage, race,
language, homeland and
origin, faith, or religious or
political opinions. No
person shall be
disfavored because of
disability“.
Article 19 #2 of Russian
Constitution stipulates:
The State guarantees the
equality of rights and
freedoms of a person and
citizen irrespective of sex,
race, nationality,
language, origin, property
and official position,
residence, attitude to
religion, belief, affiliation
to public associations,
and also other
circumstances.
Council of Europe
The jurisprudence of the European Court of Human
Rights is, to the same way and extent, relevant for
both Germany and Russia.
Both countries signet European Convention on Human
Rights and of Protocol №12 as parts of the antidiscrimination legislation in the frame of the Council of
Europe, is different for the Russian Federation on the
one hand and for Germany on the other.
In April 1st, 2005 the protocol №12 entered into force. Even
if it is not yet ratified by both countries, the protocol was
signed by Russia and by Germany in 2000.
European Union
The European Union which member is Germany also has
its own antidiscrimination legislation, studying of which,
undoubtedly, will be useful. Today the interdiction of
discrimination is the conventional standard of legislation
of EC and is contained in a number of the international
documents. The article 13 of the Contract about the
organization of the European Community concerns to
them; article 21 of the Charter of fundamental laws of the
European Community; the antidiscrimination instruction
2000/43/EC, entering a principle of equal relations
between individuals without dependence from a racial
and ethnic origin; the instruction 2000/78/EC, defining
the general principles of the equal reference in sphere of
employment; the instruction 2003/9/EC, establishing the
minimal legal standard for acceptance of persons in
searching a refuge, etc.
The purposes:
•
•
•
•
•
•
•
To compare the national legislation of Russia and Germany concerning the
right of equality and regarding the mechanisms of struggle against
discrimination.
To reveal and investigate the activity of special (competent) authorities
struggling with the facts of discrimination – e.g. Courts, Public Prosecutor,
Ombudsmen, etc.
To study judiciary practice (of national German Courts including the Federal
Constitutional Court as well as of the European Court of Human Rights in
cases concerning Germany) in matters of equality/non-discrimination.
To acquaint with the influence of institutions of the European Union and the
Council of Europe regarding German cases connected with discrimination.
To set scientific contacts with German colleagues, to expand the outlook
and to carry out a new doctoral thesis subject.
To develop a university course for students of the Institute of Law of the
Bashkir State University. The Institute is interested in the given problematic,
especially on the subject: "The principle of equality and non-discrimination
in the legislation of Germany and Russia."
To develop a manual for students of Institute of Law of the Bashkir State
University which would be useful and interesting for both legal experts and
the student readers.
The End
Das Ende
Thank you very much
Viele Danke
Спасибо