On some aspect of legal regulation students traveling abroad in the Republic of Belarus

ON SOME ASPECTS OF LEGAL REGULATION students traveling abroad in the Republic of Belarus

The article considers the legal regulation of the institutions of the education system of the Republic of Belarus related to international cooperation, namely in the direction of Belarusian citizens who are studying in them abroad to study, as well as to participate during the school year in sports, cultural and other events . Relevance of research subjects due to the fact that, despite active efforts to improve the legislation of the Republic of Belarus in the sphere of education, it continues to be characterized by such deficiencies as the presence of a number of contradictions and gaps. The study analyzes the current legislation of the Republic of Belarus in this sphere, reveals contradictions in the norms of various regulatory acts, examines their subordination and conformity of the Constitution of the Republic of Belarus. The paper formed the author's position on these issues, based on the rule of law as well as on the theoretical principles of modern legal science. In conclusion, formed practical proposals to address the shortcomings of existing legislation governing the activities of institutions and organizations of the education system of the Republic of Belarus in the sphere of international cooperation.

Introduction

To date, the Republic of Belarus is an active legislative work to create a legal framework to regulate relations in the field of education. In addition to the law «On education» on October 29, 1991 (with subsequent amendments), «On the vocational education» (from 29 June 2003) and «On education of persons with mental or physical handicaps» (from 18 May 2004 years), have passed laws «On Higher Education» and «On the general secondary education», July 11, 2007 (№ 252-W) and July 5, 2006 (№ 141-W), respectively.

In addition, in the Republic of Belarus shall attempt to codify educational legislation. The first concrete step in this direction was the adoption by the Council of Ministers of the Republic of Belarus, April 7, 2006 Resolution № 472 «On approval of the Concept of the draft Code of the Republic of Belarus on Education».

Nevertheless, the system of existing sources of educational law needs to be improved. In particular, it should be noted these deficiencies in the system of national legislation in the field of education, such as:

* declarative nature of much of the law;

* The existence of conflicts between the norms of the Constitution, laws and other enactments;

On such deficiencies directly in the regulatory agencies of students leaving the education system of the Republic of Belarus and will be discussed in this article.

Legislative regulation of educational institutions of the Republic of Belarus related to the direction of students abroad in the framework of international cooperation

In the context of this study would like to focus attention on the norms of Article 51 of the Constitution, which establishes, among other things, freedom of scientific work and teaching [1]. Further, the rule is specified in the laws of the Republic of Belarus. Article 34 «Academic freedom and autonomy in the management of institutions providing higher education» of the Law «On education» reads: «In the higher education institutions are guaranteed the freedom of teaching and research activities, the freedom to choose forms and methods of learning, autonomy Management» [2 ]. Article 55 of the Act states that the «Education, training, retraining and citizens of the Republic of Belarus in the educational institutions of other countries ... are carried out under direct contracts entered into by state agencies, educational institutions and other organizations of the education system».

According to Article 37 of the Law «On Higher Education», the international cooperation of higher education institutions is carried out within the framework of international treaties in force for the Republic of Belarus, the agreements entered into by higher education institutions with international organizations, foreign individuals and legal entities, international and national projects and programs in higher education [3].

Decision of the Ministry of Education of the Republic of Belarus № 39 from May 13, 2005 (as amended and supplemented by Decree of the Ministry of Education number 125 of 27 December 2005) approved the Regulations that, for the departure of citizens of the Republic of Belarus studying in institutions of education in the Republic of Belarus study abroad, as well as to participate in during the school year in sports, cultural and other events, you must obtain written permission of the Ministry of Education of the Republic of Belarus [4].

First, doubt the constitutionality of the normative legal act. In our view, the normative legal act is contrary to the Constitution of the Republic of Belarus and its laws, and thus violates academic freedom, not only infringes upon the rights of students, but teachers as well as violating the autonomy of educational institutions.

For the argument of this position, we turn to a brief theoretical analysis of the concept of «freedom» in modern legal science. Freedom - enshrined in the constitution or other legislative act to a certain human behavior (eg, freedom of speech, freedom of religion, etc.) Category «freedom» is close to the concept of «right» in the subjective sense, but the latter implies the existence of more or less clear legal mechanism to implement and usually a corresponding obligation of the State or another entity to perform some action (for example, to provide work in the case of the right to work). On the contrary, the legal freedom to not have a clear mechanism for implementation, its corresponding obligation to refrain from committing any violation of this freedom of action. [5]

Individual researchers do not share these concepts, or do not accentuate this attention [6]. As pointed out by VD Karpovich, relations between the concepts «right» and «freedom» is primarily characterized by the fact that this is largely synonymous, then the other - the subjective right of any person or just a citizen [7, P.259].

However, there are supporters and other points of view. In particular, VV Lazarev, argues that freedom - it is an independent behavior of the media freedom, which should have an adequate form of its use. Human freedom is ensured and protected by the state, but not regulated by them. Right - this is clearly outlined by the State to conduct free within a framework defined by law [8, S.253].

Sometimes in the literature indicates that freedom - it is also entitled to a certain kind of free behavior. As rightly argues Belarusian researcher VN Kivel, every individual's right implies its free action. Every freedom is at the same time and the right personality. Nevertheless, proponents of this view supports the key thesis, namely: «Certainly, freedom, unlike the law, provides citizens with greater choice of action» [9, p. 102]. The Constitution speaks of the rights and freedoms ... in order to emphasize the specific properties of this type of rights: the freedom to commit acts not prohibited by law, actions, easily deployed within the law of their work» [10, p. 221].

Analysis of constitutional law shows that the term «free» is intended to emphasize greater opportunities for individual choice, not a specific Mapping the results. While the term «right» defines the specific human actions (eg, the right to participate in managing state affairs, the right to elect and be elected). In this «right» Constitution itself may be included in the composition of «freedom».

Thus, in order to implement the citizens of their freedoms, the state must only refrain from committing any violation of this freedom of action. In the present situation for the implementation of academic freedom enshrined in the Constitution and laws, must obtain the permission of the Ministry of Education.

Secondly, carrying out the direction of the Belarusian citizens to study abroad, the relevant educational institutions operate, in particular, pursuant to international treaties, intergovernmental agreements, national projects in education. Thus, the refusal of the Ministry of Education to issue a permit to travel abroad for education can be regarded as the suspension of the treaty.

According to article 22 of the Law «On International Treaties of the Republic of Belarus» (In the wording of the Act of November 15, 2004 № 331-W), the termination, including a denunciation or suspension of a treaty of the Republic of Belarus is carried out in accordance with the terms of the treaty itself and norms of international law authority, which is responsible for the decision to consent to be bound by international treaty for the Republic of Belarus. In accordance with Article 14 of the Act, the decision to consent to be bound by the Republic of Belarus of interstate and intergovernmental agreements are accepted by the President of the Republic of Belarus, the National Assembly of the Republic of Belarus or Council of Ministers in accordance with their competence, as defined by the Constitution of the Republic of Belarus, other legislative acts of the Republic of Belarus [11].

Thus, there is a clear contradiction between the norms of law and review orders.

It should be said that the Decree of the Ministry of Education number 39 made pursuant to the Decree of the President of the Republic of Belarus № 3 dated March 9, 2005. «On some measures to combat trafficking in human beings» (with amendments introduced by Presidential Decree number 15 dated 22 November 2005.). As stated in the preamble, this decree is aimed at adopting effective measures to prevent trafficking in persons, especially women and children, protecting life, health, freedom and other constitutional rights of citizens of the Republic of Belarus [12]. Sub-paragraph 1.6 of this legal instrument establishes that the direction of citizens enrolled in institutions of education of the Republic of Belarus, to study abroad is carried out:

for more than 30 calendar days - with the written permission of the Ministry of Education;

up to 30 calendar days, and to participate in during the school year in sports, cultural and other events:

organizations, under the authority of national governments and other public bodies - with the written permission of the authorities;

organizations, under the authority of local executive and administrative bodies - with the written permission of those authorities;

other organizations - with the written permission of the Ministry of Education [13].

It should be pointed out that under Part 4 of Article 14 of the Law «On International Treaties of the Republic of Belarus», the decision to consent to be bound for the Republic of Belarus, international treaties of interdepartmental character (and, hence, the decision to suspend their action) may be taken and heads of public bodies Republic of Belarus, concluding these international agreements (in our case - the Minister of Education) [14]. However, such powers are not available to the «other central bodies of state administration and other state bodies», as well as the local executive and administrative bodies.

Thirdly, in accordance with the Statute of the Ministry of Education, approved by the Council of Ministers of the Republic of Belarus № 1554 of 29.10.2001, the Ministry of Education, drafts of legislative and other normative legal acts of state programs in education, pre-school and extra-curricular activities, protection of childhood and the state youth policy, defines the main directions of development and improvement of the control system of education of the republic; develops features of the cost of educational and other services, determines the amount of funding and logistical support to subordinate organizations within the allocated budget and resources [15] . In other words, virtually any program or activity, implying the direction of students abroad, not without the active participation of the Ministry of Education, its control and funding. Is there a need to obtain permission to travel as an effective measure to prevent trafficking, protect life, health, freedom and other constitutional rights of citizens of the Republic of Belarus? From our point of view, this is not necessary.

Fourth, the Decree № 3 of the President of the Republic of Belarus of March 9, 2005. «On some measures to combat trafficking in human beings» (as amended), legal persons and individual entrepreneurs engaged in activities related to employment of citizens abroad, are obliged to register with the relevant bodies of the employment agreements (contracts) with foreign employers in respect of each are employed abroad, a citizen (subparagraph 1.4.1.) [16]. Legal entities and individual entrepreneurs engaged in tourism activities, are obliged to submit to the Ministry of Internal Affairs information about citizens who were exercising in an organized tour group and had not returned to the Republic of Belarus on its end (paragraph 1.8) [17]. However, neither they nor others are not required to obtain the relevant authorities additional clearance for the work or to travel, carrying out their activities under the license. What arguments grounded bound by such authorization for educational institutions, sending students abroad? From our point of view, the increased risk to get into slavery and become a «human beings», for this specific category of travelers, compared with workers and tourists, is absent.

Finally, consider the following analogy. Presidential Decree number 643 of 17 December 2007 to January 1, 2008 was repealed licensing stamp in the passport a citizen of the Republic of Belarus for temporary travel abroad [18]. This act was passed in connection with the Constitutional Court of Belarus № Z-146/2002 on September 27, 2002. In that opinion, the Constitutional Court, inter alia, stated that article 30 of the Constitution, which stipulates the right of citizens of the Republic of Belarus to move freely, to leave the Republic of Belarus and freely return back shows this basic inalienable rights. Imposing restrictions for temporary exit of individual citizens abroad may be in strict accordance with Article 23 of the Constitution, and shall conform to the purposes and principles of a democratic state of law, be proportionate to the values protected by the Constitution. The Constitutional Court acknowledged that the rules provide for the note in passport of a citizen of the Republic of Belarus for a temporary trip abroad, are not fully consistent with the Constitution of the Republic of Belarus, as the duty of affixing stamps in my passport, is set for all Belarusian citizens who wish to temporarily travel abroad absolute majority of which has no restrictions on travel, diminish their rights and not commensurate with the values protected by the Constitution [19].

In such a situation, permission from the Ministry of Education plays the role of the very permissive mark needed to secure the implementation of Article 49 of the Constitution of the Republic of Belarus the right to education and freedom of scientific work and teaching, as expressed in Article 51 of the Basic Law. However, in our view, such a condition for the realization of the rights and freedoms, as well as licensing stamp in the passport, did not fully conform to the Constitution of the Republic of Belarus and its laws, and does not perform those functions, which is entrusted with.

Conclusion

It follows from the above arguments, studied the situation requires a radical change. Solution, we believe, will be the replacement of the regulatory order of exit of citizens of the Republic of Belarus studying in institutions of education of the Republic of Belarus abroad for studies, as well as to participate during the school year in sports, cultural and other public events, a notification.

Literature

1. Vesnik GrSU. - 2009.