Postmodern-speak. I have the right to my opinion. Own opinion & Opinion of others The right of a person to have his own opinion is called

Text Art. 29 of the Constitution of the Russian Federation in the current version for 2020:

1. Everyone is guaranteed freedom of thought and speech.

2. Propaganda or agitation that incite social, racial, national or religious hatred and enmity are not allowed. Propaganda of social, racial, national, religious or linguistic superiority is prohibited.

3. No one may be forced to express their opinions and beliefs or to renounce them.

4. Everyone has the right to freely seek, receive, transmit, produce and distribute information in any legal way. The list of information constituting a state secret is determined by federal law.

5. Freedom of the media is guaranteed. Censorship is prohibited.

Commentary on Art. 29 of the Constitution of the Russian Federation

1. Thought as a result and product of thinking reflects the knowledge of the surrounding world and oneself in this world, which is embodied in certain ideas, views, opinions, beliefs. Freedom of thought characterizes the spiritual freedom of a person, his inner world, which in itself cannot be the subject of legal regulation. At the same time, thinking, thought underlie any human activity, determine his social activity, relationships with other people, society, the state, i.e. expressed outside. The form of thought is its linguistic, verbal expression (oral or written), other sign communication systems, such as art forms. Guaranteed by the Constitution of the Russian Federation to everyone freedom of thought means, from the point of view of legal requirements, non-interference of the state in the process of forming and expressing one’s own opinions and beliefs, protecting him from any other interference, inadmissibility of any ideological dictate, violence or control over a person.

Freedom of speech is the state-guaranteed opportunity to freely express one's opinion and beliefs on a variety of public, state, and other issues through the oral or printed word, at meetings, rallies, and other means. The right to freely express one's opinion, as formulated in international legal instruments, includes freedom to hold one's opinion and freedom to seek, receive and impart information and ideas by any means without any interference from public authorities and regardless of frontiers (art. 19 Universal Declaration of Human Rights, Article 10 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). Freedom of expression underlies many other rights and freedoms, primarily such as the right to participate in elections, to petition, to education; freedom of conscience, creativity.

According to Art. 1 of the Federation Law "On Basic Guarantees of the Rights of the Child in the Russian Federation", as well as Art. 54 paragraph 1 of the "Family Code" of the Russian Federation, a child is a person who is under 18 years old.

Children of different ages belong to different categories. Depending on the category and children and their parents (or persons who replace them), the legislation of the Russian Federation provides different rights and obligations.

A child between the ages of 0 and 14 is considered both a minor and a minor at the same time.

A child between the ages of 14 and 18 is considered a minor. From this age, the child is obliged to be responsible for his actions, since at the age of fourteen he (as stated in Article 20 of paragraph 2 of the Criminal Code of the Russian Federation) is criminally liable for part of his acts, namely, murder under Art. 105 of the Criminal Code of the Russian Federation, kidnapping under Art. 126 of the Criminal Code of the Russian Federation, sexual violence (Articles 131 and 132 of the Criminal Code of the Russian Federation), theft of a vehicle (Article 166 of the Criminal Code of the Russian Federation), the commission of a terrorist act and the taking of hostages under Art. Art. 205 and 206, theft and extortion of weapons and drugs (Articles 226 and 229 of the Criminal Code of the Russian Federation), etc.

Full criminal responsibility comes at the age of 16.

Until the child reaches the age of 14, parents or persons replacing them bear full responsibility for his actions.

Convention on the Rights of the Child

Along with responsibility, the child is endowed with many rights, among which is the right to express his opinion and defend his own point of view.

The right of the child to express is provided, first of all, in the Convention on the Rights of the Child. It was adopted by decision 44/25 of the UN General Assembly in 1989. According to Art. Art. 12 and 13, the child who is aware of and freely expresses his opinions and needs should be given the right to be heard. This right is vested in children who are ten years old.

Art. 12 of the Convention states that the state must provide the child with the opportunity to freely express his views and opinions on issues that directly concern him. This opportunity guarantees the child the right to be heard at court hearings that affect his interests. He can take part in legal proceedings either personally or through his representative - a natural or legal person / body. The procedure for hearing a child in court is provided for by the procedural norms of state legislation.

Art. 13 of the Convention gives the child the right to freely express his opinion in any way convenient for him: orally, in writing, through works of art or by other means. Also, paragraph 2 provides for some restrictions under which the right of a minor to express his opinion is not possible. Such restrictions, in particular, are the protection of state security, observance of public order, ensuring the level of health and morality of citizens of the state.

When a child has the right to express his opinion under Russian law

In the Russian Federation, freedom of thought, speech, opinion and belief is guaranteed to every citizen by Article 29. Constitution of the Russian Federation.

The right of the child to express his opinion is stated in Art. 57 RF IC.

In particular, this article informs that the child has the right to express his opinion in family councils on a particular issue. This is especially true when discussing issues related to the direct interests of the child.

Also, this right of the child to express his opinion is provided for by other laws of the RF IC. Art. Art. 59, 72, 132, 134, 136, 143, 145 of the UK provide for the adoption by the guardianship and guardianship authorities and during court hearings only with the consent of the child who is 10 years old. Decisions are made if they do not contradict the safety of the child, and their consequences do not harm him. It should be noted that the right of the child to express his opinion is not identical with the acceptance of his position.

In exercising the right of the child to express his opinion, parents correct their own. In some cases (with regard to safety conditions, health conditions, etc.), parents must convince the child to rethink and change their judgments according to precautionary measures.

The right of a minor to apply to guardianship authorities

Russian legislation provides for a number of cases when a minor has the right to go to guardianship and guardianship authorities for the purpose of his own protection. Such cases include, in particular:

Situations of parental abuse, which is guaranteed by Art. 56 RF IC. Parental abuse includes alcoholism, drug addiction, immoral lifestyle.
Abuse of parental rights in relation to a child, abuse, physical, psychological, sexual violence, restriction of the rights of the child, obstruction of his harmonious psycho-physical development (Article 69 of the RF IC).

In all of these cases, the child can apply to the guardianship and guardianship authorities at the district administrations or the prosecutor's office. The relevant authorities are obliged to take into account the circumstances presented by the child and take up the elimination of problems. It is in these ways that the right of the child to express his opinion, granted by the Law, is realized.

At the age of 14, a minor can himself go to court to protect his rights.

Bodies for the protection of the rights and interests of the child

The administrative procedure for protecting the rights of the child falls within the competence of the guardianship and guardianship authorities, as well as law enforcement agencies (Article 8 of the RF IC).

Law enforcement bodies are subdivided into the prosecutor's office and the bodies of the Ministry of Internal Affairs.
The prosecutor's office in the process of protecting the rights of the child is guided by the following methods:
Filing a claim for restriction / deprivation of parental rights or cancellation of adoption (Articles 70, 73 and 142 of the RF IC);
Submission to the court of a demand for the restoration of the violated rights of the child (Article 21 of the Law "On the Prosecutor's Office of the Russian Federation");
Participation in court hearings (Article 35 of the Law "On the Prosecutor's Office of the Russian Federation", Articles 72, 73, 125, 140 of the RF IC);
A warning that it is unacceptable to violate the rights of the child and eliminate violations of the law (Articles 24 and 25 of the Law "On the Prosecutor's Office of the Russian Federation");
Appeal, if there are grounds provided for by the Law "On the Prosecutor's Office of the Russian Federation", of acts of other bodies that are directly related to the protection of the rights of the child.

Employees of the Ministry of Internal Affairs take part in the search for individuals who evade the execution of court decisions regarding the protection of the rights of the child and the enforcement of a court decision.

In order to protect the rights of the child in the family, a Commission on the affairs of minors and the protection of their rights has been established. Its competence includes filing a lawsuit with the court to deprive the parents of their rights, representing the interests of the child in court, control over the conditions of education, etc.

List of issues on which the court can decide with the consent of the child

Any child who has reached the age of ten has the opportunity to be heard in court and count on a positive decision of his interests.

Matters that can be decided with the consent of the child include, but are not limited to:

The change of the name and surname of the child is guaranteed by Art. 59 RF IC;
Resumption of parental rights of the father / mother (Article 132 of the RF IC);
Adoption of a child (Article 134 of the RF IC);
Changing the name of an adopted child is provided for by Art. 134 RF IC;
Indication of adoptive parents as parents or guardians (Article 136 of the RF IC);
Change of full name in case of annulment of adoption (Article 143 of the RF IC);
Acceptance of a child for upbringing in another family (Article 154 of the RF IC);
Residence of a minor with one of the parents in the event of their divorce.

“Everyone is guaranteed freedom of thought and speech, opinion and belief,” Article 29 of the RF Constitution proclaims. This constitutional provision is reflected in Article 57 of the Family Code of the Russian Federation, which enshrines the right of the child to express his opinion.

Granting a minor the right to comprehensive development, respect for human dignity is aimed at forming a full-fledged personality capable of living in a team with qualities that are useful to society, family, and loved ones. Both the state and the family as a whole are interested in this. This right is realized, including by providing the child with the opportunity to express his opinion. Article 57 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC) says the following on this matter: “A child has the right to express his opinion when resolving any issue in the family that affects his interests, as well as to be heard in the course of any judicial or administrative proceedings.”

Consideration of the opinion of a child who has reached the age of 10 years is mandatory, except in cases where this is contrary to his interests. In the cases provided for by the RF IC (Articles 59, 72, 132, 134, 136, 143, 145 of the Family Code of the Russian Federation), the guardianship and guardianship authorities or the court can make a decision only with the consent of the child who has reached the age of 10 years. The obligation to take into account the opinion is not the same as accepting the position of the child. Taking into account the opinion of the child means that the opinion of the parents should be adjusted taking into account the opinion of the child.

The Convention on (hereinafter referred to as the Convention) also addresses this issue. Article 12 provides the child who is capable of formulating his own views with the guarantee that he must be guaranteed the right to express those views freely in all matters affecting him.

The views of the child shall be given due weight in accordance with their age and maturity. By the way, this right implies not only the desire or unwillingness to drink milk with foam or something like that. The right to freedom of expression is the right to seek, receive and impart information, to choose independently what to listen to and what to read. The child has the right to resolve any issue in the family that affects his interests, because he is a person.

From what age is this possible? The Convention says: when the child can formulate his own views. In fact, before the age of 10, a child can express his opinion, it will be taken into account, but no one - neither the court nor the parents - is obliged to follow it. From the age of 10, in some cases, consent is mandatory. So, without the consent of a child who has reached 10 years of age, it is impossible:

change in the name and surname of the child (Article 59 of the RF IC);
restoration of parental rights (Article 72 of the RF IC);
adoption of a child (Article 132 of the RF IC);
change in the last name, first name and patronymic of the child upon adoption (Article 134 of the RF IC);
record of adoptive parents as parents of an adopted child (Article 136 of the RF IC);
change in the last name, patronymic and first name of the child when the adoption is canceled (Article 143 of the RF IC);
placement of a child under guardianship and guardianship (Article 145 of the RF IC).

As a rule, in a conflict situation, the child's opinion is clarified by the body of guardianship and guardianship. If the court decides to reveal the opinion of the minor by questioning directly in the court session, then they first find out from the specialist of the guardianship and guardianship body whether the presence in court will not adversely affect the child. The survey is carried out taking into account the age and development of the child in the presence of a teacher, in an environment that excludes the influence of interested parties. During the survey, it turns out whether one of the parents or another interested person influenced the child’s opinion, whether the child is aware of his own interests when expressing this opinion and how he justifies it, etc.

Of course, in practice, things are not so rosy. In some cases, when the opinion of a child who has reached the age of ten years was identified by the guardianship and guardianship body and this circumstance was indicated in the conclusion of the said body, at the same time there was no information in the case file about which of the representatives of the guardianship and guardianship body, when and under what circumstances this opinion of the child was clarified.

This situation took place when the dispute was resolved by the Guryevskiy District Court of the Kaliningrad Region on the claim of K. (the child's father) against Kh. (the child's mother) to determine the place of residence of a minor (born in 1996). The court made a decision to satisfy the claim and determine the place of residence of the minor child together with the father, taking into account the recognition of the claim by the defendant and the conclusion of the guardianship and guardianship authority, according to which, based on the results of a survey of the living conditions of the parties, as well as the opinion of the minor himself, who expressed a desire to live with his father , determining the place of residence of the child with the father will be in his interests. At the same time, according to the certificate of the Kaliningrad Regional Court, based on the materials of the generalization of judicial practice, neither from the acts of examination of living conditions, nor from the acts of visiting the child does it follow that the representative of the guardianship and guardianship authority ascertained the opinion of the child. The minutes of the court session also do not contain any explanations on these circumstances, in connection with which, as the Kaliningrad Regional Court pointed out, the validity of the conclusion of the guardianship and guardianship authority with reference to the opinion of the child, in essence, has not been confirmed by anything. Thus, there is reason to believe that there has been a violation of the requirements of Art. 57 RF IC.

The child's right to express an opinion is restricted, violated, and the opinion expressed is often distorted or misinterpreted. There are at least three reasons for this:

judges (usually women) have a negative view of the child's participation in the trial;
as a result - the lack of established judicial practice;
the passivity of those who should be most interested in finding out the true opinion of the child.
That is, parents.

Thus, the right of the child to express his opinion in the context of family law is the recognition of the child's right to vote, in some cases - deliberative, in others, directly specified in the law - decisive. Fixing the child's right to express his opinion in the form of a general norm, the legislator does not link the emergence of this right and the possibility of its implementation with the child reaching a certain age. Consequently, the degree of attention to the views or opinions of the child in deciding a particular issue cannot and should not depend on his age, despite the fact that the legal meaning of the opinion expressed by him varies depending on the child, as a rule, increasing with his age.

Mikhail Krasilnikov

1. Everyone is guaranteed freedom of thought and speech.

3. No one may be forced to express their opinions and beliefs or to renounce them.

4. Everyone has the right to freely seek, receive, transmit, produce and distribute information in any legal way. The list of information constituting a state secret is determined by federal law.

5. Freedom of the media is guaranteed. Censorship is prohibited.

Commentary on Article 29 of the Constitution of the Russian Federation

1. Freedom of thought and speech, opinion and information is one of the relatively new acquisitions of civilization. Much of human history has been spent in the denial of such freedom and the restriction of those opinions and speeches that were considered by the majority of the population or by the ruling classes to be harmful, dangerous or false. Freedom of speech began with the English Bill of Rights of 1689. Then it was reflected in the first amendment to the US Constitution in 1787 and gradually by the beginning of the 20th century. most European countries, including the Russian Empire, guaranteed this freedom in their constitutional acts.

The commented Article 29 of the CRF enshrines the interconnected and systemic unity of rights and freedoms aimed at developing equal opportunities for each person for self-expression and communication between people based on the competition of ideas and opinions. All the freedoms listed in this article: words, thoughts, propaganda, agitation, opinions, beliefs, information, mass media, freedom from censorship are equally important and cannot be applied without taking into account the systemic connection between them.

Opinions have been expressed in the literature that some of the freedoms mentioned in Art. 29 are broader and even include other freedoms. So, it is argued that freedom of speech is "an integral part of freedom of information" * (297), "a private manifestation of the freedom to disseminate information, freedom of expression" * (298) or that the right to receive information refers to ensuring freedom of speech. * (299 ) But, probably, these discrepancies indicate that none of those mentioned in Art. 29 of the Constitution of the Russian Federation, freedoms cannot be considered as more general or more significant, but all of them together are parts of some more general and unnamed freedom in the Constitution, the essence of which is reflected both in different parts of the commented article 29 of the Constitution of Russia, and and in the corresponding norms of international law. But for the convenience of presentation, the authors must inevitably use one of the existing terms to designate this more general concept. This function is performed by different authors in the following terms: "freedom of speech", "freedom of information" and "freedom of expression".

In part 1 of Art. 29, freedom of thought and speech is guaranteed, which the Constitution considers as a single freedom, a single and inseparable right to freely think and freely express one’s thoughts in words, without fear of persecution for this by anyone, and first of all by the state. One cannot but agree with L.V. Lazarev that "freedom of thought characterizes the spiritual freedom of a person, his inner world, therefore, in itself, it cannot be the subject of regulation by law" * (300). The concept of "freedom of thought and speech" more precisely and at the same time expresses the constitutional and legal meaning of this freedom more precisely and at the same time more widely than the concept of "freedom of speech". Freedom of thought and speech implies the possibility of freethinking, dissent and free-thinking, and thus guarantees the right of a person to criticize the generally accepted norms of morality, law, religion.

By thoughts one should understand not only thoughts in the narrow sense of the word, but also the feelings and emotions of a person, and by words not only verbal, but also non-verbal communication between people, which consists of: tone of voice, appearance, clothing * (301), posture, facial expressions, movements, gestures, facial expressions, etc. Thoughts in the context of this article can be expressed and fixed not only in the words of a natural human language, but also in other languages, forms and systems of signs, for example, sign language of the deaf, computer languages, visual images (painting * (302), photography * (303), cinema *(304), video, collage, etc.). Therefore, in international and national legal acts, the synonym for freedom of thought and speech is the so-called freedom of expression. Heading Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Freedom of Expression, la liberti d "expression) from English and French into Russian is translated literally as freedom of expression, but sometimes as freedom of expression or as freedom of expression.

Characteristically, the concept of "freedom of speech" is absent in most international human rights treaties. So, in Art. 19 of the Universal Declaration of Human Rights proclaims "the right to freedom of opinion and expression"; this right includes freedom to hold opinions without interference, as well as freedom of information, i.e. the right to seek, receive and impart information and ideas through any media and regardless of frontiers.

International Covenant on Civil and Political Rights 1966 in art. 18 affirms that "everyone has the right to freedom of thought, conscience and religion. This right includes freedom to have or adopt a religion or belief of his choice and freedom to manifest his religion or belief, either alone or in community with others, in public or private , in worship, the performance of religious and ritual rites and teachings. In Art. Article 19 of the Covenant proclaims "the right to hold one's opinions without interference", which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, orally, in writing or by any other means of one's choice.

Article 9 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms enshrines to every person the right to freedom of thought, conscience and religion, which includes freedom to change his religion or belief and freedom to profess his religion or belief, either individually or in community with by others, publicly or privately, in worship, teaching and the performance of religious and ritual orders. In Art. 10 of the Convention, as already noted, proclaims only "freedom of expression", which includes the right to hold one's opinion and the freedom to receive and impart information and ideas without any interference from public authorities and regardless of frontiers. The concept of freedom of thought, conscience and religion contained in the Convention has found concrete definition in the decisions of the European Court of Human Rights. In a number of decisions, the Court noted that "freedom of expression, as defined in paragraph 1 of Article 10, is one of the bearing pillars of a democratic society, a fundamental condition for its progress and self-realization of each of its members" * (305). In addition, the Strasbourg Court believes that "Article 10 protects not only the content of expressed ideas and information, but also the form in which they are communicated" * (306).

The freedoms established in the commented article are granted to Russian citizens, foreigners and stateless persons, they belong to everyone from birth. The subjects of these freedoms are not only individuals, but also legal entities. This freedom is equally guaranteed as an active form of its use, i.e. the right to address other persons or express one's thoughts in any other form, either passively, i.e. the right to get acquainted with the thoughts of others, to listen or otherwise perceive them. Within the meaning of this article, all subjects of these freedoms are equal before the law and the courts.

The main purpose of the commented article is to protect, first of all, socio-political thoughts, words and information, although indirectly the freedoms indicated in this article also protect religious, scientific, artistic thought, commercial information, including advertising, and intellectual property rights. But these types of self-expression and information are largely regulated by other articles of the Constitution and relevant international legal acts. So, ; .

Advertising information, which is a form of "commercial free speech" that prohibits unfair competition and therefore advertising that promotes it. But even advertising, which is subject to numerous legislative restrictions in the name of consumer protection and fair competition, is much more protected than any other type of information by freedom of speech and information. As noted by the Constitutional Court in Resolution No. 4-P of 04.03.1997, advertising (advertising information) forms the basis of a unified market information system, which is so necessary to achieve a single economic space. Since the right of everyone to freely seek, receive, transmit, produce and distribute information protected by Art. 29 of the Constitution, referred to the jurisdiction of the Russian Federation by force, "the rights and freedoms of a person and a citizen, including those related to the receipt of advertising information, may be limited only by federal law and only to the extent necessary to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state () "* (307).

The European Court of Human Rights has clarified that the dissemination of information of a commercial nature falls under the protection of freedom of information when it is of political importance, and in other cases it may be significantly more limited by state law, especially in such a complex and volatile area as unfair competition. *(308). In another decision, the Court pointed out that “a considerably wider margin of appreciation is generally afforded to Contracting States in regulating freedom of speech when the private sphere is affected, as well as the sphere of morality and especially religion. In the sphere of morality, and perhaps even more so in the sphere of religious beliefs there is no generally accepted European concept of requirements designed to ensure the "protection of the rights of others" in the event of attacks on their religious beliefs" * (309).

The right to campaign is also protected by freedom of speech as a form of free flow of information. In particular, as pointed out by the Constitutional Court in Resolution No. 10-P*(310) dated November 14, 2005, the challenged provisions of the electoral legislation, as implying a ban on conducting election campaigning directed against all candidates by citizens personally at their own expense, are excessive restriction of freedom of speech and the right to disseminate information in the form of election campaigning, not due to constitutionally significant goals, does not meet the requirements of certainty and unambiguity and therefore does not comply with the Constitution, it, parts 1 and 4 of Art. 29 and .

2. To the extent that a society lacks universally recognized criteria for good and evil, truth and falsehood, harm and good, it needs freedom of speech, which, generating competition of thoughts, opinions, beliefs, disputes and discussions, brings more benefits than any - any ideological or political framework, whether set by a dictator or a democratically elected parliament. At the same time, to the extent that there is a consensus in society on basic human values, absolute freedom of speech cannot be regarded as an exclusively positive phenomenon in the life of society. For example, as US Supreme Court Justice O.W. Holmes, "the strictest defense of freedom of speech will not protect a person who falsely screams about the fire in the theater and causes panic" * (311). Therefore, the defense of Art. 29 of the Constitution, as well as the relevant international legal norms on freedom of expression, knowingly false information is not subject. In fact, propaganda or agitation, prohibited by part 2 of the commented article, inciting social, racial, national or religious hatred and enmity, propaganda of social, racial, national, religious or linguistic superiority can also be considered a kind of such deliberately false information. Social hatred is equated with racial and national only in the Constitution of the Russian Federation. What it is is not entirely clear, since there is neither international nor Russian practice on this issue. According to some researchers * (312), the communist doctrine is an example of propaganda of social hatred, however judicial practice does not confirm such point of view.

The provisions of part 2 of the commented article should be extended not only to the freedom of thought and speech specified in part 1, but also to freedom of opinion, belief, information, including mass information. It should be noted that Art. 29 contains a ban not on the expression of thoughts and dissemination of information that causes hatred or contains ideas of racial or other superiority, but only on their propaganda and agitation. That is, the Constitution does not prevent the presentation of such thoughts in a private conversation or in another confidential form, as well as in the case of dissemination of information without the purpose of inciting hatred or convincing someone of superiority. However, it should be borne in mind that Art. 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, approved by UN General Assembly Resolution 2106 (XX) of December 21, 1965, declares that the participating States condemn all propaganda and undertake to take immediate and positive measures aimed at eradicating any incitement to such discrimination or acts of discrimination, and to this end, among other things, they make it an offense punishable by law any dissemination of ideas based on racial superiority or hatred.

The restrictions on freedom of speech established by part 2 of the commented article 29 of the Constitution of the Russian Federation must be considered in a systemic connection with other constitutional norms and principles that serve the same purpose, first of all, which establishes that "the exercise of the rights and freedoms of a person and a citizen should not violate the rights and freedom of other persons", and Part 3 of Art. 55, which states that "the rights and freedoms of citizens may be limited by federal law only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state" .

Restrictions on freedom of speech are also provided for in acts of international law. In accordance with paragraph 3 of Art. 19 of the International Covenant on Civil and Political Rights, the exercise of these freedoms “imposes special duties and special responsibilities. It may therefore be subject to certain restrictions, but these shall only be provided by law and are necessary: (a) For respect of the rights or reputations of others persons; b) for the protection of state security, public order, health or morals of the population". In Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms contains a detailed list of circumstances that allow the state to restrict the relevant freedoms: "The exercise of these freedoms, imposing duties and responsibilities, may be accompanied by certain formalities, conditions, restrictions or penalties that are prescribed by law and necessary in a democratic society in the interests of national security, territorial integrity or public order, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

The need to distinguish between the concepts of agitation and dissemination of information was pointed out by the Constitutional Court in Resolution No. 15-P of October 30, 2003, concerning the verification of the provisions of the electoral legislation: “Since both agitation and information of any nature can induce voters to make one or another choice, while Since reliable and objective information about a candidate helps the voter to form his preferences to a greater extent than just calls to vote for or against, it is obvious that the criterion for distinguishing between election campaigning and informing can only be the presence of a special goal in campaigning - to incline voters into a certain side, to provide support or, on the contrary, opposition to a particular candidate, electoral association.Otherwise, the boundary between informing and election campaigning would be erased, so that any actions to inform voters could be subsumed under the concept of campaigning, which, by virtue of The ban on representatives of organizations producing mass media would unduly restrict the constitutional guarantees of freedom of speech and information, and would also violate the principles of free and open elections "* (313).

The law may establish a restriction and prohibition of the expression of not only those thoughts, opinions and beliefs that are listed in part 2 of the commented article, but also others, and not only through agitation and propaganda, but also in another form. However, such restrictions cannot be established by a by-law, as indicated by the Constitutional Court (see Resolution No. 10-P*(314) of 31.07.1995).

In no free democratic society are obscene, obscene expressions, profanity and frankly cynical, deeply contrary to the norms of morality and morality accepted in human society, elementary rules of conduct between people, appeal to the victim or other forms of humiliation protected by freedom of thought, speech, opinion and information her human dignity. As the Constitutional Court has pointed out in a number of its Rulings, administrative arrest and criminal punishment for the publication in the media of materials containing obscene (obscene) expressions do not contradict the Constitution, since they do not detract from the rights of citizens to freedom of thought and speech; to seek, receive, transmit, produce and disseminate information by any legal means, as well as the right to freedom of the media and the prohibition of censorship. But at the same time, the Court noted that both the courts of general jurisdiction and other law enforcement bodies, when assessing the actions of the accused persons, must take into account not only the very fact that a published work contains profanity, but also the possibility of its use, which poses a danger to the moral prohibitions protected by the Constitution. , rules of decency and other values (see Definitions of the Constitutional Court of the Russian Federation of 04.12.1995 N 94-O, N 104-O, of 19.04.2001 N 70-O * (315)).

A large place in the theory of freedom of speech is occupied by the issues of constitutional protection of defamation, as well as the related relationship between the principles of dignity of the individual and inviolability of private life with the principle of freedom of speech and information.

Defamation is the dissemination, usually in the media, of discrediting information. Three types of defamation are distinguished in the literature: 1) deliberate false defamation; 2) unintentional false defamation; 3) credible defamation, i.e. dissemination of truthful discrediting information * (316). Of these three types, only the first cannot be placed under the protection of freedom of information. Both the European Court of Human Rights and the U.S. Supreme Court proceed from the assumption that unintentional misleading and credible defamation, especially in the political and administrative spheres, is generally protected by freedom of speech, and liability legislation for these acts is state interference in the exercise of freedom of speech.

In the European and American constitutional and legal doctrine, a norm has developed, according to which political, state and public figures should be more tolerant than other citizens, such as journalists, to criticism, especially related to their public activities. There is no doubt that paragraph 2 of Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms allows you to protect the reputation of everyone, i.e. extends to politicians when they are not serving in their personal capacity; but in such cases interest of a society to an open discussion on political questions * (317) acts as a counterbalance of similar protection.

The European Court of Human Rights has pointed out that a careful distinction must be made between facts and value judgments, since the existence of facts can be proven, while the truth of value judgments cannot always be proven. In this regard, in relation to such judgments, it is impossible to fulfill the requirement to prove the truth of one's statements, and it violates the very freedom of expression, which is a fundamental part of the right guaranteed by Art. 10 of the Convention * (318).

As noted in domestic literature, Russian courts, unlike European ones, very often do not take into account the need to show increased tolerance in case of defamatory statements against politicians, deputies, the government and other public authorities * (319). Recently, this practice has been amended by two judgments of the European Court of Human Rights dated July 31, 2007, the first in the case of "Dyuldin and Kislov v. Russia" * (320), the second - in the case of "Chemodurov v. Russia" * (321). The Strasbourg Court found that in relation to these citizens Russia violated Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees everyone the right to freely express their opinion. Unlike the Russian courts, the European Court considered that in these cases it was not insult, but defamation that took place, and, in addition, recalled that the main principle of the defamation case is the presence of a specific person in respect of whom the defamatory statement was made, that the limits permitted criticism of officials is much wider than in relation to private individuals.

Thus, freedom of speech and freedom of information imply the right to disseminate not only reliable information, but also dubious information, to defend and impose on others not only justified opinions, but also misconceptions, absurd and erroneous ideas, to express opinions that may seem offensive and shocking to many.

In this regard, one should take into account the Definition of the Constitutional Court of the Russian Federation of September 27, 1995 N 69-O "On the refusal to accept for consideration the complaint of citizen Andrey Vladimirovich Kozyrev" * (322). The reason for the applicant's appeal to the Court was the trial on the claim of V.V. Zhirinovsky to the NTV company and A.V. Kozyrev on the protection of honor and dignity on the basis of Part 1 of Art. 7 of the Civil Code of the RSFSR, according to which a citizen or organization has the right to demand in court a refutation of information discrediting their honor and dignity, if the person who disseminated such information does not prove that it is true. The Constitutional Court noted that the specified article, establishing civil law ways of protecting honor and dignity and being an important guarantee of the constitutional right to protect honor and good name, provided for, does not violate freedom of thought and speech. At the same time, he pointed out that the question of how to delimit the dissemination of unreliable factual information from political assessments and whether it is possible to refute them in court is not constitutional and only the judicial practice of courts of general jurisdiction can answer it.

This practice was reflected in the resolution of the Plenum of the Supreme Court of the Russian Federation of February 24, 2005 N 3 "On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" * (323), which states that "taking into account attention to constitutional provisions, when resolving disputes on the protection of honor, dignity and business reputation, the courts must ensure a balance between the right of citizens to protect honor, dignity, and business reputation, on the one hand, and other rights and freedoms guaranteed by the Constitution of the Russian Federation - freedom of thought, speech, mass media, the right to freely seek, receive, transmit, produce and disseminate information in any legal way, the right to privacy, personal and family secrets, the right to apply to state bodies and local self-government bodies (Articles 23, 29, 33 of the Constitution Russian Federation), on the other.

3. In part 3 of the commented article, the emphasis is not on the positive, but on the negative content of freedom of thought and speech. Freedom of speech implies that a person expresses his thoughts of his own free will. It also includes a guarantee against exerting pressure on the individual in order to get him to express his opinion * (324). At the same time, this prohibition of coercion concerns only certain forms of thought and speech, namely, opinion and belief. A teacher cannot refuse to teach a lesson, a doctor cannot refuse to answer the patient's questions under the pretext of freedom of speech. It is impossible to imagine a trial in which witnesses are not liable for giving false evidence (false information) or refusing to testify, the jurors would refuse to answer questions from the court about their opinion about the guilt of the defendant.

As noted above, the jurisprudence of Russia and other democratic states draws a clear distinction between information (facts) and opinions (value judgments). Therefore, unlike information, which, as a rule, is subject to verification and which, if it is false, must be refuted, opinions, judgments, criticisms or reflections, the truth of which cannot be verified, are more protected by freedom of thought and speech and, as a rule, they are not subject to refutation if they are false. A person has the right to demand a refutation in cases where anyone, especially the media, ascribes to him any specific opinions allegedly contained in his public or private statements.

Part 3 of the commented Art. 29 of the Constitution of the Russian Federation cannot be considered in isolation from its part 2. In this regard, a person who publicly expresses his opinions and beliefs of a racist or other discriminatory nature or promotes ideas of racial superiority may be forced to refuse to express such opinions and beliefs under the threat of criminal punishment , as well as in cases of deliberately false defamation.

4. Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms specifies that freedom implies the right "to receive and impart information and ideas without any interference from public authorities and regardless of frontiers".

In accordance with the Law on Information, Information Technologies and Information Protection, information is information (messages, data) regardless of the form of their presentation (Article 2). Unlike information about the private life of a person, the collection, storage, use and dissemination of which without his consent in accordance with the law is not allowed, information about public life should, as a rule, be open and publicly available. The need for state bodies and officials to provide information about some areas of life that are especially important for the people is specifically mentioned in separate articles of the Constitution. So, . . .

According to part 5 of Art. 8 of the Law on Information, Information Technologies and Information Protection, state bodies and local governments are obliged to provide access to information about their activities. A person wishing to gain access to such information is not obliged to substantiate the need to obtain it. The exception is information with limited access. Access of individuals and legal entities to state information resources is the basis for exercising public control over the activities of state authorities, local governments, public, political and other organizations, as well as over the state of the economy, ecology and other areas of public life.

Information with limited access is primarily a state secret. In accordance with Art. 2 of the Law of the Russian Federation of July 21, 1993 N 5485-1 "On State Secrets" (as amended on December 1, 2007), state secrets are information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational-search activities, the spread of which could harm the security of the Russian Federation. The list of information constituting a state secret is determined by federal law.

As recognized by the Constitutional Court of the Russian Federation in the Decree of December 20, 1995 N 17-P * (325), by virtue of Part 4 of Art. 29 of the Constitution, criminal liability for the issuance of state secrets to a foreign state is lawful only on condition that the list of information constituting state secrets is contained in a federal law officially published for public information. A law enforcement decision, including a court verdict, cannot be based on an unpublished normative legal act, which follows from. But in its subsequent Rulings, the Court pointed out that the specification of the list of information constituting a state secret, contained in the federal law officially published for public information, can be carried out in classified by-laws (see Rulings of 27.05.2004 N 188-O, of 21.04. 2005 N 238-O * (326)).

Information with restricted access, in addition to state secrets, also includes confidential information. The list of confidential information was approved by Decree of the President of the Russian Federation of March 6, 1997 N 188. In addition, in accordance with Art. 41 of the Mass Media Law, confidential information includes information about a person who provided information to the media editorial office on the condition of not disclosing his name, as well as information that directly or indirectly indicates the identity of a minor who has committed a crime or is suspected of committing it, as well as who has committed an administrative offense or an antisocial act.

Freedom of information, neither in accordance with the commented article, nor in accordance with the norms of international law, does not imply the right to demand access to any information, unless otherwise provided by law. So, it contains an indication of the obligation of state authorities and local self-government bodies, their officials to provide each person with the opportunity to familiarize themselves, but only with those documents and materials that directly affect his rights and freedoms, but not the rights of third parties, unless otherwise provided by law. .

5. Part 5 of the commented Article 29 of the Constitution of Russia contains at least two interrelated norms. The first proclaims the guarantee of freedom of the media, while the second prohibits censorship. They are in a system connection, but not only with each other, each of these norms is separately connected with the norms contained in other parts of this article.

Freedom of the media, complementing the freedom of information, not only grants each person the right individually or collectively and professionally to seek, receive, produce and disseminate information based on the mass reader, listener, viewer, but also for this purpose to own the media in private ownership, own, use and manage them. As some authors specify, "essentially the freedom of mass media is freedom of private mass media in their influence on public opinion" * (327). In addition, this freedom includes another aspect - it serves to protect those persons whose work is directly related to information, i.e. journalists.

The norm on freedom of the mass media is derived from the preceding parts of Art. 29, as well as from art. 8, 13, 34, 35, . It is implicitly contained in the norms of international law, but the freedom of mass media is not directly mentioned in any of the international legal treaties ratified by the Russian Federation. Council of Europe standards in the field of political pluralism and freedom of the media are contained in a number of non-binding documents adopted by its Committee of Ministers, in particular: the Declaration on Freedom of Expression and Information (1982), the Declaration on the Media in a Democratic Society (1994 and ), Recommendations No. R (99)1 (1999) on Measures to Promote Pluralism in the Media, and No. R (96)10 (1996) on Guarantees for the Independence of Public Service Broadcasting.

In Russia, guaranteeing freedom of the media is of particular importance because the first private media appeared less than 20 years ago, and still most local print media and television companies are state-owned or state-controlled enterprises.

The subjects of freedom of the media, as well as the subjects of the right to information, are citizens of the Russian Federation, foreigners, stateless persons, as well as legal entities. The federal legislator, in accordance with the Constitution of the Russian Federation and/or an international treaty, may restrict certain categories of citizens and foreigners in their rights to establish and manage the media, which was done, in particular, in Art. 7 and 19.1 of the Media Law.

The subjects of this freedom, as well as freedom of speech and, for example, freedom of assembly, cannot be states, state and municipal bodies and entities. The establishment of the mass media by the state (state organizations and enterprises) is not the realization of the freedom of the mass media of a person and a citizen. State-owned media are not subject to protection on the basis of part 5 of the commented article, since freedom of the mass media is, first of all, its independence from the state. But at the same time, neither the commented article nor any other articles of the Constitution separate the media from the state, do not deprive state bodies, institutions and enterprises of the right to own, use and dispose of the media. The ban on state-owned media is not contained either in the international treaties of the Russian Federation, or in the generally recognized norms of international law. Moreover, in most countries of the world, the state owns a significant share of the media, especially electronic ones. State bodies and organizations are not only entitled, but also obliged to have their own media in order to implement the principle of openness (transparency) of their activities.

It is hardly possible to agree that "dependent, subordinate mass media do not form a space for the formation and identification of public opinion, being only a tool for its falsification, and therefore undermining the constitutional regime" * (328). Some state-owned media may be more objective and honest than some independent ones. Freedom of the media is violated not by the presence of state media, but by the absence of non-state media. As the European Court of Human Rights pointed out in its judgment of 24 November 1993 in the case of Informationsverein lentia and Others v. Austria, the legally established state monopoly of broadcasting, namely the complete impossibility of broadcasting except through a public station, is a violation of freedom of speech and information and cannot be justified by the right granted to states in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms to license broadcasting and television enterprises.

Freedom of the media is, along with other measures, a guarantee of the ideological and political diversity enshrined in . The constitution presupposes that private media must provide greater opportunities than state-owned media to express their views and interests to various groups of society. The second component of freedom of the media is the independence of the editorial staff (collective of journalists) both from state censorship and from the owner or founder of the media. And in this part, freedom equally applies to employees (journalists) of both private and state media. In particular, the Mass Media Law proceeds from the fact that the freedom of mass media for journalists is guaranteed regardless of the form of ownership of the media, therefore, violation of the rights of any journalist entails criminal, administrative, disciplinary or other liability in accordance with the legislation of the Russian Federation.

Under censorship in accordance with Art. 3 of this Law is understood as "the requirement from the editorial office of the mass media by officials, state bodies, organizations, institutions or public associations to preliminarily coordinate messages and materials (except when the official is the author or interviewee), as well as imposing a ban on the dissemination of messages and materials, their individual parts. Within the meaning of the commented article 29 of the Constitution of the Russian Federation, not only preliminary, but also subsequent punitive censorship is not allowed. As K. Eckstein rightly points out, "although the prohibition of censorship is mentioned in the same paragraph as the guarantee of freedom of the media, the prohibition of censorship is not limited to the media, but is the main content of all fundamental rights to freedom of communication" * (329). In particular, the prohibition of censorship applies to non-periodicals, cinematography, and theatre. The freedom of the media, guaranteed by the Constitution, consists in the prohibition not only of censorship, but also of other control by both the state and third parties (see, for example, Article 58 of the Mass Media Law).

However, in accordance with Part 1 of Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the right to hold an opinion and to receive and impart information and ideas without any interference from public authorities does not prevent states from licensing broadcasting, television or cinematographic enterprises. It is impossible to identify with censorship the restrictions imposed on the media in accordance with Part 2 of Art. 29 and and on the basis of the law.

The prohibition of censorship does not exclude the extent to which information activity is part of economic activity. In the mass media, monopolistic activity and unfair competition are probably more dangerous than in industry or agriculture. The issues of regulating the ratio of freedom of the media and compliance with the principles of fair competition are reflected in the Federal Law of March 13, 2006 N 38-FZ "On Advertising" (as amended on May 13, 2008).

As follows from the Decree of the Constitutional Court of the Russian Federation of May 27, 1993 N 11-P * (330), supervisory boards at television and other media companies cannot be considered as censorship bodies, provided that the law does not give them the right to interfere in the activities of the media, demand from the editors of the preliminary approval of messages and materials, to impose a ban on their distribution. Moreover, such councils are an indispensable element of the public broadcasting system. Censorship, as a rule, does not include self-censorship and interference in the activities of the media by their owners or owners.