Right to equality/non-discrimination: Comparative analysis of Russian and German legislation.

Rechts auf Gleichheit/ Non-discriminirung: Vergleichsanalyse

russisch – deutscher Legislation

Olga R. Gulina

Право на равенство/ недискриминацию:Сравнительный анализ законодательства России и

Германии

Республика Башкортостан - часть Российской ФедерацииRepublic 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

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-and-plain 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 south-east, the south and south-west; Tatarstan Republic - in the west; Udmurt Republic - in the north-

west. Its territory spreads for 550 km from the north to the south and from west to east - for more than

430 km.143,6 thousand sq.km

4110,3thousand people

Population of Bashkortostan

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 non-discrimination 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 projectThe 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 anti-

discrimination 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 muchViele DankeСпасибо