The constitutional duty of men and women in the legislation of the Russian Federation

Madatov Oleg Yakovlevich General adviser, Interregional Public Movement for the Protection of the Rights of Servicemen and Their Families "Conscience of the Law" 350072, Russia, Krasnodar Territory, Krasnodar, Moskovskaya str., 61, sq. 32 oleg_madatov@rambler.ru Other publications by this author

Introduction

The research conducted by the author in the monograph "Implementation of the principle of gender equality in the domestic legislation of the Russian Federation" showed that at the present stage of development of legal science it was not possible to completely solve the problem of discrimination of citizens on the basis of gender ^[1]. In particular, attention was drawn to the fact that the Constitution of the Russian Federation uses such a term as "duty", without its clear definition, unambiguous establishment of its imperative and dispositive forms, creating certain difficulties in law enforcement, which determines the relevance of the research.

Despite the principle of equality of citizens, regardless of their gender, enshrined in the Constitution of the Russian Federation, and the prohibition of discrimination based on their gender, the existing legislation of Russia is structured in such a way that "duty" refers exclusively to the duties of men, while women are exempt from this obligation.

In his scientific work, the author explores the evolution of the concept of "debt" as a legal category, gives the author's definition of the term, establishes the reasons and prerequisites for its legal consolidation in the Constitutions of the RSFSR, the USSR and the Russian Federation, conducts a comparative analysis of the constitutional duty (duties) of men and women on the principle of gender equality.

In the course of the work, dialectical, logical, systemic, functional, historical-legal, formal-legal, comparative-legal research methods were used.

1. The evolution of the concept of debt as a legal category

To date, scientific research has not developed a unified approach to establishing the concept of debt. A number of scientists, such as F. Mitsis ^{[2, p. 24]}, T. V. Zhuikova ^[3], V. S. Bezel, M. M. Ishmuratova and others believe that debt, as a concept, is found for the first time in the writings of Socrates. In their opinion, without directly using the word duty, Socrates used the phrase "moral obligation" close to him in meaning, by which he understood "the ability to be a good citizen."

However, it is impossible to agree with this position, since the legislation has followed the path of separating the concepts of obligation and duty. In addition, the word moral testifies to the use of customs that have not been confirmed in the legally established norms of law.

The legal consolidation of the concept of debt was originally reflected in Roman law, which contains the Latin term "obligation", which meant the obligation of the debtor (debt) to fulfill a certain obligation to the creditor (creditor) ^[4]. At the same time, the subjects of these relationships were the listed persons, public authorities and their officials did not participate in these legal relations.

A certain contribution to the legal understanding of the category of duty was made by the German philosopher Immanuel Kant, who by duty meant "respect for the law as such, aroused by pure reason itself" ^{[5, pp. 463-464]}. In his opinion, the concept of debt is a categorical imperative that is mandatory for its fulfillment ^{[6, p. 65]}, which does not provide for liability for its violation. In general, this approach was not enshrined in German national legislation (the Constitutional Charter of Prussia 1850, the Constitution of Germany 1949).

A slightly different approach, also not used in legislative acts, was expressed by Jeremy Bentham, who believed that the concept of duty is a human virtue and cannot be identically equal to the imposed legal obligations ^[7]. However, the term duty itself cannot be a virtue of a person, which in itself is a positive spiritual and moral quality of a person, that is, the antipode of the duty associated with duty.

In our opinion, the most accurate concept of debt was formulated by V. I. Dahl, who believed that "what is a debt is an obligation" ^[8]. Thus, it can be concluded that, in his opinion, duty is one of the forms of duties.

It should be borne in mind that the basic law of the countries of that period did not provide for the existence of such a category as debt, which did not create prerequisites for the development of the theory of its application.

Despite the legislative consolidation of the term debt in the Constitution of the USSR and the RSFSR, the theory of understanding debt was not properly developed.

2. Formation and consolidation of the concept of duty in the constitutional law of Russia

Debt, as a norm of constitutional law, appeared in Russian legislation a little less than 100 years ago, and as a novelty among the basic laws (Constitutions) of other countries that had not previously applied this concept.

In the Constitution of the RSFSR (1918), the concept of debt as a legal category was not used.

For the first time in world history, the term "duty" was enshrined in the basic law in the Constitution of the USSR (1936) and the Constitution of the RSFSR (1937) based on it in the form of a public duty and a sacred duty to protect the Fatherland.

By virtue of article 130 of the Constitution of the USSR (1936), public duty was understood as the duty of every citizen "to observe the Constitution of the Union of Soviet Socialist Republics, to obey the laws, to observe labor discipline, to treat public duty honestly, to respect the rules of socialist community." The prototype of public duty was the duties of citizens, enshrined in articles 18 and 19 of the Constitution of the RSFSR of 1918.

However, from a scientific and practical point of view, the concept of "public debt" has not been defined for a long time. Only on 06/27/1975 (39 years after the adoption of the specified Constitution of the USSR), paragraph 8 of the Resolution of the Plenum of the Supreme Court of the USSR No. 4 determined that "under the fulfillment of public duty is the exercise by citizens of both specially assigned public duties and the commission of other actions in the interests of society or individuals (suppression of offenses, notification to authorities about a crime committed or about to be committed, etc.)".

Consequently, the Plenum of the Supreme Court of the USSR not only actually recognized that duty is the duty of a citizen, but also defined the range of these duties, the list of which, apparently, did not allow them to be included in the Constitution of the USSR (1977), as a result of which the public duty itself was not reflected in it.

This hypothesis is confirmed by the fact that obligations under public duty from constitutional norms of law were transformed into legislative norms of other branches of law (clause "b" of Article 102 of the Law of the RSFSR dated 10/27/1960 "On Approval of the Criminal Code of the RSFSR, as amended on 04/25/1991; clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 01/27/1999 No. 1 "On Judicial the practice of murder cases", which is in force ^{[9, p. 110]}).

Moreover, even modern legislation continues to use this term, for example, the Criminal Code of the Russian Federation (paragraph "g" of part 1 of Article 63, paragraph "b" of Part 2 of Article 105, paragraph "a" of part 2 of Article 111, paragraph "b" of Part 2 of Article 112, paragraph "d" of Part 2 of Article 115, paragraph "b" of part 2 of Article 117 and part 2 of Article 119).

The sacred duty of every citizen of the USSR, in accordance with Article 133 of the Constitution of the USSR (1936), was understood as "Protection of the Fatherland." This rule of law was based on Article 19 of the Constitution of the RSFSR (1918), according to which the protection of the socialist Fatherland is recognized as "the duty of all citizens of the Republic." Thus, it can be unequivocally stated that the basis of the sacred duty was the corresponding duty.

The concept of sacred duty underwent minor changes in the Constitution of the USSR (1977), when the phrase "protection of the Fatherland" was replaced by "protection of the socialist Fatherland", which, in our opinion, was connected with the ideological issues of consolidating the achievements of socialism in the specified constitution.

The term sacred duty was not used in the Constitution of the Russian Federation (1993).

Neither the legislation of the Russian Federation nor scientific circles considered the reasons why it became necessary to transform the term "duty" of the Constitution of the RSFSR (1918) into the term "duty" of the Constitution of the USSR (1936).

Some authors justified only the need to adopt a new constitution. Thus, according to K. I. Slesarsky, the adoption of the Constitution of the USSR (1936) became necessary to eliminate the class character ^{[10, p. 29]}.

At the same time, the study of the report of I. V. Stalin "On the draft Constitution of the USSR" at the Extraordinary VIII All-Union Congress of Soviets (November 25, 1936) allowed us to conclude that the basis of the decision was the need to introduce different terminologies in the new Constitution of the USSR in comparison with bourgeois constitutions, proceeding "from the premise of the fact that society consists of antagonistic classes", and "the constitution is needed in order to consolidate public order, pleasing and beneficial to the propertied classes" ^{[11, p. 128]}.

This, in our opinion, allowed the Constitutional Commission to separate the constitutional duties of citizens of a bourgeois state from the duty of a citizen of a socialist republic, perceived as the victory of socialism over the capitalist system.

At the same time, it should be noted that such artificial separation in its essence has not changed the generality of the concepts of "duty" and "duty" inherent in these constitutions.

Further expansion of the concept of debt was continued in the Constitutions of the USSR (1977) and the RSFSR (1978).

According to scientists such as D. Y. Tumanov ^[12], V. R. Davtyan ^[13], S. A. Denisov ^[14], V. S. Kronsky ^[15] and others, the adoption of the Constitution of the USSR (1977) was conditioned by political phenomena requiring not only the expansion of citizens' rights, but also the imposition of a larger spectrum on them obligations, which led to the use of such a term as debt.

I. N. Strekalov and A. A. Fokin believe that the reason for such an expanded range of obligations (debt) was the "nationwide discussion of the draft Constitution of the USSR in 1977", which "was perceived by the population as an effective mechanism for interaction with the authorities and an opportunity to solve pressing problems" ^{[16, p. 170]}, reflected in its text.

At the same time, it is impossible to fully agree with such a position. So, along with the unchangeable (the sacred duty to protect the Fatherland), new types of debt appeared that had not previously been found in the Constitution of the USSR (1936), including:

1) the duty to combat theft and waste.

According to some researchers, the reason for the introduction of this constitutional duty into the Constitution is due to certain difficulties in countering the theft of socialist property and speculation, when, by virtue of legislative acts of that time, party and Soviet officials were exempt from criminal prosecution, who could with impunity assist the "shopkeepers" and the trade mafia to obtain various kinds of benefits, which allowed the latter to avoid criminal prosecution punishments. The consolidation of this debt in the constitution made it impossible to apply the exemption from criminal liability of these persons, which contributed to the development of the rule of law and reduced the amount of theft of socialist property ^[17].

However, it is impossible to fully agree with this position. Of course, as individual special cases, these situations took place. But the author does not take into account that:

Firstly, the rest of the participants in criminal groups were not exempt from criminal liability, as a result of their criminal activities were stopped.

Secondly, there was an effective mechanism for party control over the activities of party members who held these positions of the party-Soviet apparatus.

Thirdly, the Interior Ministry system was not directly subordinate to these individuals, and therefore, in most cases, they had limited opportunities to counteract.

In our opinion, one of the main reasons for the introduction of debt to combat theft and waste was the insufficient volume of production of material goods, which does not fully meet even the basic needs of citizens, not to mention luxury goods.

In order to improve the system of state distribution of goods and services, reduce the facts of their theft, as well as the inefficient use of resources, it became necessary to involve all citizens of the country in this process, for which they were entrusted with a constitutional obligation, enshrined in the named concept.

This type of debt is not reflected in the Constitution of the Russian Federation (1993).

2) the duty to respect national dignity, strengthen the friendship of nations and nationalities of the Soviet multinational state.

According to S. P. Shorokhov, "The politburo of the Central Committee of the CPSU had an important task – to integrate independent republics and, at the same time, to wash away the edges of inequality between citizens of the USSR" ^{[18, p. 58]}.

At the XXIV Congress of the CPSU (1971), it was stated that "the past period is characterized by comprehensive progress and further rapprochement of all nations and nationalities of our country" ^{[19, p. 203]}. It is recognized that the flourishing and rapprochement of the nations and nationalities of the USSR is part of the progressive development of socialist society. The ongoing policy of "friendship of peoples" was one of the ways of signifying the socio-political ideal of national relations, which led to the consolidation of this type of constitutional duty.

Agreeing with this opinion regarding the introduction of this concept, we note that subsequent events following the collapse of the USSR refuted this point of view about the possibility of full integration of independent republics.

This debt was not reflected in the Constitution of the Russian Federation (1993)

3) the duty of care for the preservation of cultural values.

According to M. A. Lipchansky, shared by us, this type of duty was fixed in the framework of the development of international relations by analogy with the Universal Declaration of Human Rights (1948), the Convention "On the Protection of Cultural Property in the Event of Armed Conflict" (1954) and other normative documents regulating the preservation of cultural heritage ^{[20, p. 356]}.

At the same time, I consider it necessary to note such a component of the protection of cultural values provided for by the said Convention as respect for these values. It is for instilling a culture of respect for cultural values by the population of the country, in our opinion, that it became necessary to introduce this debt.

Despite the fact that this type of duty was not reflected in the Constitution of the Russian Federation (1993), it was transformed into the duties of citizens (Part 3 of Article 44 of the Constitution of the Russian Federation), that "Everyone is obliged to take care of the preservation of historical and cultural heritage, to protect historical and cultural monuments."

4) international duty to promote the development of friendship and cooperation with the peoples of other countries.

According to M. A. Fadeichev, "The concept of internationalism was used to characterize the attitude towards the peoples of Asia, Africa, and Latin America who were liberated or in the process of liberation from colonial dependence, to the peoples of the countries of the socialist camp, as well as to the proletarian, working part of the population of capitalist countries. The content of the concept of "internationalism" as its basis included the idea of a common class interest, which determined its proletarian character. Thus, a Soviet person, a citizen of the USSR, regardless of race and nationality, was endowed with equal rights, but also had a constitutional obligation to be an internationalist both inside and outside the country" ^{[21, p. 101]}.

Considering that the USSR took part in military conflicts of other countries, such as the fighting in Syria 1956-1991, the civil war in Angola 1975-1992, the fighting in Ethiopia 1977-1990, etc., anticipating the Afghan war of 1978-1989, the leadership of the USSR, within the framework of the development of the policy of friendship of peoples and rapprochement with other countries, in our opinion In her opinion, she consolidated the international duty as the basis of the duties of citizens of the USSR, based on a common class interest and bearing a proletarian character.

This position is confirmed by the XXIV Congress of the CPSU (1971), in which it was announced that: "The entry of allied troops of five socialist countries into Czechoslovakia was an act of international solidarity that met both the common interests of Czechoslovak workers and the interests of the international working class, the socialist commonwealth and the class interests of the international communist movement. ...

The Communist Party of the Soviet Union considered and considers it its international duty to contribute in every possible way to the further growth of the power of the world system of socialism. We stand for the cooperation of fraternal countries to become more and more versatile and profound, to cover an ever wider mass of workers..." ^{[22, pp. 36-37]}, which, in the author's opinion, led to the consolidation of international debt.

The term "international debt" was not used in the Constitution of the Russian Federation (1993), which, in our opinion, is due to a change in the country's political course. However, this term was retained in legislative acts, in particular in paragraph 2 of part 1 of Article 218 and paragraph 11 of part 1 of Article 407 of the Tax Code of the Russian Federation (part two).

According to N. S. Avdonin: "a synonym for the concept of international duty has appeared – military duty" ^{[23, p. 201]}. At the same time, it is impossible to agree with this position, since international duty is based on the principle of proletarian internationalism, where the basis is the deployment of Soviet troops to other countries to assist them in suppressing anti-communist protests (actions outside the Russian state), when military duty provides for the protection of Russian state sovereignty and territorial integrity. Therefore, these terms are not identically equal.

5) the duty of the Armed Forces of the USSR to the people.

Scientific and practical studies devoted to the reasons for the consolidation of the duty of the Armed Forces of the Russian Federation to the people in the Constitution of the USSR (1977) could not be established in publicly available sources, which required us to formulate our own approach to this problem.

In our opinion, this is possible by considering the situation with domestic and foreign policy, preceding the discussion and adoption of the said basic law.

In our opinion, the main reason for the inclusion of this debt in the Constitution of the USSR (1977) should be attributed to the events of the Cold War, the ideological consolidation of socialism, as well as the risk of a possible military coup.

So, after the end of the Great Patriotic War, the stage of the "cold war" began, between the USSR and the United States, which implied the struggle of socialism against capitalism (from March 5, 1946 to November 21, 1990).

According to M. F. Polynov, one of the concepts used by the United States against the USSR during the Cold War was the destruction of the ideological principles of Soviet citizens. He argues that "human rights is a Western project. It was invented in order to drive a wedge between the Soviet people and the government, the intelligentsia and the CPSU, undermine the internal political stability of Soviet society, and teach people to think in Western individualistic categories. To set human interests against the interests of the state, society, and the collective" ^{[24, p. 52]}.

He also refers to V. Novodvorskaya, who admitted that "I personally ate my fill of human rights. Once upon a time, both we, the CIA, and the United States used this idea as a battering ram to destroy the communist regime and the collapse of the USSR. This idea has served its purpose and stop lying about human rights and human rights defenders."

The leadership of the USSR, anticipating the attempts of the West to stratify a socialist society in which the concept of the interests of the collective is higher than the interests of the individual, at the XXI Extraordinary Congress of the CPSU (1959) declares "the complete and final victory of socialism in the USSR", proclaiming at the same time a new goal of rallying society around the country's leadership, in order to consolidate ideology among Soviet citizens.

According to A.L. Zemtsov, on January 4, 1967, the term "developed socialism" appeared, which was a stage on the way to communism and the creation of the "Constitution of Developed Socialism" ^{[25, p. 41]}. At the same time, developed socialism did not relate to an individual, but to society as a whole, which was based on the principle of equality and social justice, not only of citizens among themselves, but also of the state in relation to society, in which the country's leadership legislatively wanted to consolidate that not only the people have obligations to the state, but also and the state itself has obligations to the people. One example of this consolidation was Article 6 of the Constitution of the USSR (1977), which explicitly stated that "the CPSU exists for the people and serves the people."

Also, in the author's opinion, coups d'etat in Peru (1968), Panama (1968), Portugal (1974) and other countries played a role in accepting the debt. According to E. N. Pashentsev, an essential role in coups is assigned to the armed forces, which, by virtue of their professional duty, are able both to prevent the coup itself and to allow it to happen, as it was in 1991 by the Soviet armed forces ^{[26, p. 79]}.

The Soviet leadership, realizing the importance of the armed forces, taking into account the experience of other countries and the attempts made to destroy Soviet ideology, in our opinion, consolidating the duty of the Armed Forces of the USSR to the people, was guided, among other things, by the moral component of citizens.

At the XXIII Congress of the CPSU (1966), issues related to the Armed Forces of the USSR were discussed. In particular, the announced report by L.I. Brezhnev "sounded like a combat order obliging all personnel of the Soviet Army to devote all their energy to improving combat skills, to remain vigilant so that, as stated in the report of the Central Committee, the aggressors, if they try to violate the peace, never take us by surprise, so that retribution overtakes them inevitably and without delay" ^{[27, p. 417]}, part of this excerpt was reflected in the law "On Universal Military duty" (1967). At the same time, the congress also discussed that "The basis of the power of our Armed Forces is the indestructible unity of the army and the people. Therefore, we consider the full expansion and strengthening of ties between army and navy party organizations, political organizations, military councils with local party, Soviet, and trade union organizations as one of the main conditions for increasing the combat capability of our Armed Forces."

Consequently, in our opinion, at the XXIII Congress of the CPSU, issues related to strengthening and expanding ties between the army and the people were discussed, which led to the decision to consolidate the duty of the Armed Forces of the USSR to it, but not in terms of protecting the people themselves, but protecting the socialist Fatherland, which previously was only a sacred duty of citizens.

This position is confirmed by the circumstances that at the XXIII (1966), XXIV (1971) and XXV (1976) ^[28] congresses of the CPSU, the Soviet Army and Navy assured the Communist Party of the Soviet Union, as well as the entire people of the USSR, of their loyalty to them, as well as that "they are always ready with honor to fulfill his sacred military duty to protect our Homeland."

The events indicated in the aggregate contributed to the addition of an article on the duty of the Armed Forces of the USSR to the people. If earlier in the Constitution of the USSR (1936) the protection of the Fatherland was only a sacred duty of every citizen, then the adopted Constitution of the USSR (1977) already reflected the "protection of the socialist Fatherland", which emphasized the importance of socialism. Moreover, the protection of the socialist Fatherland was a sacred individual duty of every citizen, which could be fulfilled through military service in the Armed Forces of the USSR, in accordance with the law "On Universal Military Duty" of 12.10.1967, which, before the adoption of the Constitution of the USSR (1977), reflected the obligation "to be in constant readiness for decisive and the complete defeat of any aggressor who dares to encroach on our Homeland", the text of which was subsequently adopted in Article 31 of the Constitution of the USSR (1977).

In our opinion, the consolidation of the duty of the Armed Forces of the USSR to the people was a party decision aimed at expanding and strengthening ties between the army and the people, for their joint unity. At the same time, this necessity is also conditioned by the fact that the sacred duty of a citizen to protect the Fatherland is realized through his military service in the Armed Forces, which makes it possible to ensure reliable protection of the socialist Fatherland, the leadership and guiding force of which is the Communist Party of the Soviet Union (Article 6 of the Constitution of the USSR 1977).

The duty of the Armed Forces of the USSR to the people was not reflected in the Constitution of the Russian Federation (1993). The reason for its non-inclusion, in our opinion, is a change in approaches to establishing rights, freedoms and duties, which began to relate mainly to individuals, while the subject of this duty was the Armed Forces, which are the executive body of state power.

In our opinion, this duty was legally based on military duty, which is currently not constitutional, but is included in the concept of the duty of citizens to protect the Fatherland.

The Federal Law "On Military Duty and Military Service" (1998) implements legal regulation in order to "realize the constitutional duty and duty of citizens of the Russian Federation to protect the Fatherland." Part 1 of Article 1 of which provides that the military duty of citizens provides for conscription and military service on conscription. Part 1 of Article 40 defines that "military personnel undergoing military service on conscription ... are sworn in", within the framework of which they undertake to "fulfill military duty" (Part 2 of Article 40). Consequently, military duty is an assumed obligation of citizens, after they receive the status of a serviceman.

According to article 26 of the Federal Law "On the Status of Military Personnel", "The protection of state sovereignty and territorial integrity of the Russian Federation, ensuring the security of the state, repelling an armed attack, as well as performing tasks in accordance with international obligations of the Russian Federation constitute the essence of military duty", which is practically identical to what is stated in the duty of the Armed Forces of the USSR to the people in the Constitution USSR (1977), as well as in the USSR Law "On Universal Military Duty" dated 12.10.1967.

The leadership of the military is carried out by the President of the Russian Federation – the Supreme Commander of the Armed Forces of the Russian Federation (Part 1 of Article 87 of the Constitution of the Russian Federation).

Consequently, in our opinion, the debt of the Armed Forces of the USSR to the people was redistributed to the military personnel of the Russian Federation, since the subject of debt was previously mistakenly defined, since the very concept of debt can only be applied to an animate subject, in this case, a citizen.

Thus, it can be concluded that in the constitutions of 1977-78 the imposed obligations were divided into: duties, duty and sacred duty, as an additional, international duty.

Accordingly, it can be concluded that constitutional obligations had their own hierarchy, where sacred duty is the highest form of obligation, debt is the average form of obligation, and obligations are at the lowest level (Fig. 1).

Figure 1 – Hierarchy of constitutional obligations

It should be noted that approaches to the formation and consolidation of the concepts of debt turned out to be a previously unexplored category, since the analysis showed that most types of debt enshrined in the Constitution of the USSR (1977) in general had no legislative prerequisites and scientific justifications.

In the Constitution of the Russian Federation, the concept of "duty" is used only in Part 1 of Article 59 in the aspect of protecting the Fatherland. In other previously stated terms, the concept of duty has been transformed into other constitutional and civic duties.

According to some Western (G. Stephanopoulos ^[29], S. Cohen ^[30], S. Talbott ^[31], K. Stoner-Weiss, M. McFaul ^[32], B. Clinton ^[33],[34], D. Simes ^[35], etc.) and domestic scientists (A. Domrin ^[36], A. Medushevsky ^[37], etc.), all types of constitutional duty (with one exception) were not included in the Constitution of the Russian Federation (1993), which is associated with the exertion of foreign policy pressure on the leadership of Russia by Western governments in order to eliminate Russian identity by imposing values alien to our people.

An important role was played by the fact that the concept of duty is absent both in generally recognized norms of international law (for example, the Universal Declaration of Human Rights in 1948) and is not reflected in the national constitutions of many foreign countries (Austria, Belgium, Great Britain, Hungary, Germany, Romania, USA, Ukraine, Sweden, Japan and others), which automatically contrasts the ideological features of Russian statehood in comparison with Western values ^[38].

Thus, the concept of debt is not disclosed either in the Constitution of the Russian Federation or the related norms of the legislation of the Russian Federation. It has not been worked out by practice either.

At the same time, during its formation, the prerequisite and consequence of the norms of law governing debt were duties, which allows us to conclude that they are synonymous.

In the Constitution of the Russian Federation (1993), the only duties of a citizen:

Firstly, it is the highest or unconditional duty to protect the fatherland, which distinguishes it in relation to other types of duties;

Secondly, for violations of this duty, responsibility is established under articles 275 "High treason", 275.1 "Cooperation on a confidential basis with a foreign state, international or foreign organization", 328 "Evasion from military and alternative civilian service", 352.1 "Voluntary surrender" and others.

This conclusion is confirmed by the ruling of the Fourth Cassation Court of General Jurisdiction dated 07/20/2023 in case No. 88-23114/2023, according to which the performance of military service duties takes place within the framework of the realization by citizens of the Russian Federation of a constitutional duty ^[39], for non-fulfillment of which criminal liability is provided.

As a result, it was concluded that duty under the Constitution of the Russian Federation (hereinafter – Constitutional Duty) is an unconditional duty of a citizen, limiting his constitutional rights and freedoms under threat of criminal punishment.

3. Compliance of the constitutional duty of men and women with the constitutional principle of legal equality of the sexes

As noted earlier, the only article in the Constitution of the Russian Federation in which there is a mention of debt is Part 1 of Article 59 of the Constitution of the Russian Federation, which stipulates that "The protection of the Fatherland is the duty and obligation of a citizen of the Russian Federation." At the same time, this obligation, according to the Constitution of the Russian Federation, applies to all citizens, regardless of their gender identity.

This conclusion is based on Part 2 of Article 6 of the Constitution of the Russian Federation, according to which men and women are obliged to bear equal responsibilities, one of the forms of which is duty.

In conjunction with Parts 1, 2 of Article 59 of the Constitution of the Russian Federation, the Federal Law "On Military Duty and Military Service" implements legal regulation "in the field of military duty and military service in order for citizens of the Russian Federation to realize their constitutional duty." At the same time, the obligations established by this federal law are not constitutional, but only have signs of constitutionality, that is, attribution to the constitutional norm of law. At the same time, the federal law itself should not contradict the Constitution of the Russian Federation (Part 1 of Article 15 of the Constitution of the Russian Federation).

One of the ways to fulfill the constitutional duty to protect the Fatherland, the legislator refers to entering military service in accordance with the procedure established by law (part 4 of Article 1 of the law) ^[40].

Considering that this federal law implements legal regulation in the field of military duty in order for citizens to realize their constitutional duty, therefore, military duty is part of the constitutional duty, as a lower form of obligation, which in turn provides (Part 1 of Article 1): military registration, mandatory preparation for military service, conscription military service, military conscription, stay in reserve, conscription for military training and military training during the period of stay in reserve.

However, studies have shown that "constitutional duty" and "military duty" are provided for necessarily only for the male part of the population, for women this type of obligation is absent. The statement of individual officials and scientists that some women also have military duty, in our opinion, does not correspond to elementary logic, since their entry into military service is exclusively voluntary, or they voluntarily chose a specialty for which military registration is provided.

Thus, all citizens are required to be registered in the military (Part 1 of Article 8), with the exception of "women who do not have a military accounting specialty" ^[41].

Since entry into military service and obtaining a military accounting specialty for women is exclusively voluntary, it is not possible to assert that they have such a duty. In fact, this is their right, not their duty.

Mandatory preparation of citizens for military service provides for "obtaining basic knowledge in the field of defense" (Part 1 of Article 11), within the framework of the regulations on the preparation of citizens of the Russian Federation for military service, approved by Decree of the Government of the Russian Federation dated 12/31/1999 No. 1441. Paragraph 4 of this provision defines that "Male citizens receive basic knowledge in the field of defense in accordance with an approximate training program agreed with the Ministry of Defense of the Russian Federation", as well as training in the basics of military service, which is provided exclusively for male citizens ^[42].

Military service is subject exclusively to "male citizens aged 18 to 27 years" (Part 1 of Article 22). Considering that women are not conscripted into military service, then military service on conscription is also an obligation only for men ^{[43, p. 46]}.

Staying in reserve is provided for both sexes. However, enlistment in the reserve for women is possible only if they have a military accounting specialty (part 1 of Article 52), which they previously received voluntarily, and not necessarily, like men ^[44].

Female citizens are exempt from military duties (Part 1 of Article 55), there is no such preference for men.

According to the author, constitutional duty in relation to the Constitution of the Russian Federation is the highest form of constitutional duties of citizens, which, due to the peculiarities of Russian legislation, is inherent exclusively in the male part of the Russian population, which indicates the gender inequality of men and women in Russian society.

At the same time, the author puts forward a new term "constitutional debt", which means the type of debt established by Federal laws aimed at the realization by citizens of their constitutional duty.

Thus, constitutional duty in the modern sense cannot be considered as a gender-neutral concept, since it is an unconditional obligation only for men, limiting their constitutional rights and freedoms under threat of criminal punishment, for example, Article 328 of the Criminal Code of the Russian Federation, which provides criminal liability for evading conscription in the absence of a legitimate reason for exemption from this service ^[45].

Conclusion

After conducting a scientific study, it was found that debt is one of the forms of imposed obligations on citizens. For the first time, the legal consolidation of the concept of debt in the Constitution of the USSR (1936) was due to the need to separate the constitutional duties of citizens of a bourgeois state from the duty of a citizen of a socialist republic.

The analysis of the formation of the debt of citizens in the Constitutions of the Russian state is carried out, the grounds and prerequisites for their consolidation are revealed, and the reasons for the non-application of a large part of the debt to the Constitution of the Russian Federation (1993) are substantiated.

However, despite the fact that in the modern version there is a constitutional consolidation (Part 2 of Article 6 and Part 3 of Article 19 of the Constitution of the Russian Federation) of equality of rights, freedoms, opportunities for their realization, as well as carrying out equal duties, an analysis of constitutional norms of law showed that the duty to protect the Fatherland is a duty only for men, This form of obligation does not apply to women, which indicates a violation of the principle of gender equality and discrimination against men based on gender, the observance of which was guaranteed by the state (Part 2 of Article 19 of the Constitution of the Russian Federation).

In the course of the research, an analysis of approaches to understanding the concept of debt was carried out, the concept of constitutional and constitutional debt was defined, the historical process of its formation and consolidation in higher (basic) normative legal acts was considered, a hierarchical model of constitutional obligations was built, and constitutional duty in the aspect of gender equality was analyzed.