Representative Bodies of Local Self-Government as an Object of Public Control: Constitutional and Legal Analysis

Goncharov Vitalii Viktorovich PhD in Law Associate Professor, Dean of the Faculty of Higher Education, Polytechnic Institute (branch), Don State Technical University in Taganrog 347900, Russia, Rostov region, Taganrog, Petrovskaya str., 109a niipgergo2009@mail.ru Other publications by this author

Introduction.

The processes of organization and implementation of public control over local self-government bodies are widely studied in the works of A. E. Epifanov, ^{[8, pp. 29-33]} V. A., Zhuravleva, ^{[9, pp. 122-126]} M. A. Kilesso, ^{[11, pp. 24-30]} A.V. Kurochkin, ^{[12, pp. 420-426]} T. N. Mikheeva, ^{[13, pp. 145-148]} D. G. Novikova, ^{[14, pp. 92-93]} E. D. Tsareva, ^{[17, pp. 198-202]} as well as a number of other authors.

However, in the above-mentioned works, the proportion of studies devoted to the analysis of representative local self-government bodies as an object of public control does not seem to be sufficient, since this type of public authorities occupies a central place in the system of municipal government.

This circumstance determines the choice of the topic of this scientific research, the purpose of which is not only to analyze modern problems that hinder the organization and implementation of public control over the activities, acts and decisions of representative bodies of local self-government, but also to develop a system of measures to resolve these problems.

In turn, the relevance and practical significance of this scientific research consists in the need to ensure the further development of the institute of public control at the municipal level by resolving identified and formalized problems that hinder the organization and conduct of its activities in relation to representative bodies of local self-government.

The main text.

The system of public power in the Russian Federation is represented by federal and regional state authorities, as well as local self-government bodies, which exercise the powers delegated to them by the multinational people of Russia, which, in accordance with the Constitution of the Russian Federation, is the bearer of sovereignty and the only source of power in the country. Public authorities in Russia are both directly elected by the people and are formed by public authorities elected by the people. At the same time, the organization and conduct of the process of implementation by the people of forms of direct democracy (for example, free elections and referendums), as well as the powers delegated by them to public authorities, need constant monitoring by society in order to prevent usurpation of power, misappropriation or retention of powers, or falsification of the results of direct forms of democracy. In this regard, the institute of public control acts as the most important legal guarantee for the implementation, protection and protection of the constitutional principles of democracy and public participation in the management of state affairs, thanks to which citizens of the country, as well as numerous public associations and non-governmental non-profit organizations are able to exercise control not only over public authorities and their officials, but also over state and municipal organizations, other bodies and organizations that are endowed by federal laws with the right to exercise certain public powers.

Despite the fact that the possibility of organizing and implementing public control measures in relation to the activities, acts and decisions of local self-government bodies is directly provided for by the legislation on public control, in particular, Federal Law No. 212-FZ of 21.07.2014 "On the Basics of Public Control in the Russian Federation", the practical implementation of this institution of civil society, as we have already as noted in previous studies, ^{[4, pp. 64-67]} is associated with numerous problems. At the same time, a number of authors rightly note that despite these problems, ^{[12, pp. 420-426; 7, pp. 78-81]} public control in municipalities is the basis for the formation and development of civil society. ^{[16, pp. 104-110]}

The foundations of the legal status of local self-government bodies in the Russian Federation are defined in the Constitution of Russia, in Federal Law No. 131-FZ of 06.10.2003 "On General Principles of the Organization of Local Self-Government in the Russian Federation", a number of federal laws on the interaction of state authorities and local self-government bodies, for example, in Federal Law No. 414-FZ of 21.12.2021 "On the general principles of the organization of public Power in the Subjects of the Russian Federation", in regional and municipal charters, as well as in regional legislation on local self-government, and in relevant municipal regulatory legal acts.

In the context of this scientific research, we will analyze the problems of organizing and exercising public control over representative local self-government bodies, which, as a number of authors rightly point out, occupy the main place in the system of local self-government bodies ^{[2, pp. 43-54; 10, pp. 255-262]} for a number of reasons: 1) representative bodies of local self-government (their deputies) are the only bodies of municipal power within municipalities that can only be directly elected by the population of a given municipality, while heads of municipalities can be elected both by their population and by representative bodies of local self-government, and heads of local administrations that are executive and administrative bodies municipal formations may be appointed under a contract concluded based on the results of a competition (except in cases when the head of the municipality is simultaneously, in accordance with the charter of the municipality and the head of the local administration); 2) representative bodies of local self-government are endowed with a significant part of the powers granted by the Constitution of Russia and Federal Law No. 131-FZ of 06.10.2003 "On the general principles of the organization of local self-government in the Russian Federation" to municipal entities (in particular, the authority to adopt the charter of a municipal entity, determine the procedure for managing and disposing of property in municipal ownership, making a decision on the election of the head of a municipal entity, as well as on his resignation, etc.); 3) representative bodies of local self-government They are represented by a large deputy corps, which carries out its activities both in a collective form (by holding meetings of the most representative local government body, its individual committees and commissions), and through individual work (with appeals from citizens, legal entities, by sending deputy requests, etc.).

Among the main problems hindering the organization and implementation of public control over representative bodies of local self-government, the following can be identified:

Firstly, a significant problem is the lack of consolidation of the institution of public control in the Constitution of the Russian Federation (while a separate chapter 8 is devoted to local self-government). There is a conflict when constitutionally unintended subjects of public control, on the basis of Federal Law No. 212-FZ of 21.07.2014, organize and carry out their activities in relation to a variety of public authorities institutionalized in the Basic Law of the country. This circumstance, as we have already noted earlier, ^{[3, pp. 169-186]} unfavorably distinguishes the institute of public control in the Russian Federation from the institute of people's control of power, which was enshrined in the Constitution of the USSR of 1977 and the Constitution of the RSFSR of 1978. At the same time, the above-mentioned constitutions defined the concept of the institution of people's control of power, fixed its structures and levels, described in detail the mechanism of interaction of state administration bodies of the USSR (RSFSR), including their local level, with the bodies of people's control. This, on the one hand, gave the people's control bodies authority and significance in the eyes of local government bodies, and on the other hand, increased the importance of people's control measures in the eyes of ordinary citizens of the USSR.

In this regard, it seems necessary to consolidate the institution of public control in the Constitution of the Russian Federation as, on the one hand, the most important legal guarantee for the implementation, protection and protection of the constitutional principles of democracy and public participation in the management of state affairs, and on the other hand, as one of the forms of direct democracy in the country. It should be noted that attempts to institutionalize public control in the Basic Law of the country were already made at the dawn of Russia's independence after 1991 in separate drafts of the Constitution of the Russian Federation. In particular, one of the projects was supposed to dedicate one of the sections of the Basic Law to civil society in the Russian Federation, the most important institution of which is public control. However, the draft prepared in the Administration of the President of Russia and submitted to a national referendum on 12.12.1993 did not provide for a section on civil society, as well as the institute of public control itself.

It seems that the Constitution of the Russian Federation should fix not only the concept of the institution of public control, its forms, principles, methods, types of activities, but also the list of its subjects, criteria for identifying objects, the mechanism of interaction of subjects of public control with public authorities (including representative bodies of local self-government).

Secondly, a significant problem in the organization and conduct of public control measures in relation to the activities, acts and decisions of representative bodies of local self–government are the peculiarities of the formation of subjects of public control functioning at the municipal level - public chambers (councils) of municipalities.

An analysis of existing regulations on municipal public chambers, for example, the Regulations "On the Public Chamber of the Municipality of Krasnodar", shows that they include members elected by representative bodies of local self–government (for example, in the municipality of Krasnodar, this is half of the members of the Public Chamber - 12 people), as well as appointed by the head of the municipality (in particular, there are 12 of them in the municipality of Krasnodar). However, in most municipalities, as we have already noted earlier, the heads of municipalities are not directly elected by the population, but are elected by a representative body of local self-government (as in the above-mentioned municipality of the city of Krasnodar).

Thus, the public chamber (council) of a municipality, designed to monitor the activities, acts and decisions, including the representative body of local self-government, as a rule, consists partially or completely of members appointed by this representative body of local self-government, which calls into question both the legitimacy, effectiveness, and also, the very social nature of such subjects of public control.

In this regard, it seems necessary to fix in Federal Law No. 212-FZ dated 21.07.2014 "On the basics of public Control in the Russian Federation" the mechanism for the formation of subjects of public control (except for the Public Chamber of the Russian Federation, the procedure for the formation of which is regulated by a separate Federal Law). As an option, the public chambers (councils) of municipalities can be recruited from members who will pass a competitive selection by voting of voters living in the territory of this municipality on the website on the Internet "Public Services" (https://www.gosuslugi.ru ). The right to nominate candidates for this competition should be granted, in particular, to groups of citizens of the Russian Federation (for example, making up at least 0.1% of the total number of adult citizens of Russia registered in the territory of this municipality), local branches of public associations, as well as other non-governmental non-profit organizations. The formation of the composition of the competition commission, which will oversee the organization and conduct of this competition, should be entrusted to a higher subject of public control – the public chamber of the subject of the Russian Federation on whose territory this municipality is located (this will exclude the possibility of exerting pressure on the course of the competitive selection procedure by the municipal authorities in this municipality).

Thirdly, a serious problem, in our opinion, is the absence in the scientific and educational literature of mass studies devoted to the development of specific principles, methods, forms, types of public control measures in relation to the activities, acts and decisions of representative bodies of local self-government. It should also be borne in mind that the system of municipalities in the Russian Federation is quite complex and multilevel. In particular, according to the number of residents, municipalities can have both a small number of citizens and consist of hundreds of thousands and even millions of citizens (for example, according to unofficial data, the number of residents actually living in the municipality of Krasnodar may exceed 2 million people). ^[18] In this regard, it seems necessary to instruct the Public Chamber of the Russian Federation To analyze, together with the Ministry of Justice of the Russian Federation, the current regulations on municipal public chambers (councils) of municipalities in order, on the one hand, to identify the most successful forms, types, methods of implementing public control measures at the municipal level, and on the other hand, to develop model regulations "On the Public Chamber (Council) municipal formation", "On public control on the territory of the municipality".

Fourth, a significant problem in the organization and implementation of public control over the activities, acts and decisions of representative bodies of local self-government, as we have already noted in previous studies, ^{[6, pp. 76-79]} is the weak development of information support for the organization and conduct of public control activities at the municipal level.

It seems that it is necessary at the federal level to develop, under the leadership of the Public Chamber of the Russian Federation and with the organizational, technical and material support of the Government of the Russian Federation, a Federal program for the creation and technical support of sites on the Internet of subjects of public control that will allow Russian citizens, public associations and other non-governmental non-profit organizations to participate online in the process organization and implementation of public control measures, including by initiating them. In addition, thanks to the functioning of these sites, subjects of public control will have operational information: on the results of consideration by local self-government bodies of appeals from citizens living on the territory of this municipality; on the effectiveness and efficiency of decisions taken by local self-government bodies (since this problem, according to a number of authors, is significant especially at the level of municipalities). ^{[1, pp. 41-43; 15, pp. 119-122]}

Fifthly, a certain problem in the field of organization and implementation of public control over representative bodies of local self-government is the lack of elaboration of the institute of electoral control in the current electoral legislation. The system of public control over the election process, as we noted in previously published works, ^{[5, pp. 66-69]} essentially boils down to the activities of public observers. However, recent changes to the electoral legislation (for example, regarding the introduction of the institute of remote voting) have significantly limited the possibilities of electoral public control, which requires the development of new methods, techniques of public control over remote voting (especially in elections of deputies of representative bodies of local self–government - as the most numerous type of elections).

Sixth, an important problem in the organization and implementation of public control over representative bodies of local self-government is the lack of consolidation in the current criminal and administrative legislation of measures of legal responsibility of officials of public authorities (including deputies of representative bodies of local self-government, officials of the apparatus of these authorities) for actions that create obstacles in the implementation of representatives subjects of public control of its relevant activities. In this regard, it is necessary to supplement the Criminal Code of the Russian Federation, the Code of the Russian Federation on Administrative Offenses with relevant articles on the establishment of measures of administrative and criminal responsibility for offenses and crimes related to countering the legitimate activities of subjects of public control.

Conclusion.

Based on the results of the conducted scientific research , a number of conclusions can be drawn:

1. The activities, acts and decisions of representative bodies of local self-government are one of the types of objects of public control in Russia, which requires the organization and implementation of its relevant activities by subjects of public control on a regular basis.

2. This institution of civil society should be enshrined in the Constitution of the Russian Federation, providing for the possibility of its organization and implementation in relation to representative bodies of local self-government as one of the most important objects of public control in the country.

3. Federal Law No. 131-FZ of 06.10.2003 "On the General principles of the Organization of local Self-Government in the Russian Federation" should contain provisions detailing the limits, methods, principles, forms and types of public control measures that need to be organized and implemented in relation to the activities, acts and decisions of representative bodies of local self-government.

4. The list of subjects of public control that can organize and conduct public control measures in relation to representative bodies of local self-government, as well as the mechanism of formation of these subjects, which would exclude the participation of the above-mentioned public authorities in the selection and approval of candidates for members of these subjects of public control, requires clarification.

5. Due to the fact that the legislation of the Russian Federation does not contain a mechanism for bringing deputies of representative bodies of local self-government to legal responsibility for countering the legitimate activities of subjects of public control when organizing and conducting public control measures in relation to the activities, acts and decisions of these public authorities, it is necessary to develop and consolidate in the current criminal and administrative legislation measures of responsibility of deputies of representative bodies of local self-government, as well as officials of the apparatus of the above-mentioned public authorities, for the above-mentioned opposition.