Institute of Public-Private Partnership in Public Control in Russia

Potapenko Sergei Viktorovich ORCID: 0000-0003-3013-5072 Doctor of Law Professor; Department of Civil Procedure and International Law; Kuban State University 350040, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149 niipgergo2009@mail.ru Other publications by this author     Goncharov Vitalii Viktorovich PhD in Law Associate Professor; Department of Civil Procedure and International Law; Kuban State University 350040, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149 niipgergo2009@mail.ru Other publications by this author     Cheshin Andrei Vladimirovich ORCID: 0009-0000-7572-3076 PhD in Economics Associate Professor; Faculty of Secondary Vocational Education; Orsk Institute of Humanities and Technology (branch), Orenburg State University 462419, Russia, Orenburg region, Orsk, Mira, 15A niipgergo2009@mail.ru Other publications by this author     Petrenko Elena Gennad'evna PhD in Law Associate Professor of the Department of State and International Law, Kuban State Agrarian University named after I. T. Trubilin 350044, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 niipgergo2009@mail.ru Other publications by this author

Maksimov Aleksandr Alekseevich ORCID: 0000-0003-0853-1669 Lecturer; Northeastern Federal University named after M.K. Ammosov 58 Belinsky str., Yakutsk, Republic of Yakutia, 677000, Russia niipgergo2009@mail.ru

Introduction.

The issues of organization and implementation of various forms of public-private partnership in Russia and foreign countries are widely studied in the works of O. V. Burgonov, ^{[3, pp. 993-1004]} E. L. Grishina, ^{[4, pp. 127-133]} A. Pukhov, ^{[5, p. 1]} S. Balashenko, ^{[6, pp. 93-106]} Ya. V. Kozhenko, ^{[12, pp. 288-290]} A.V. Malko, ^{[14, pp. 7-18]} N. S. Maloletkina, ^{[15, pp. 66-73]} P. V. Pashkovsky, ^{[19, pp. 231-233]} A. Sakhbieva, ^{[21, p. 1]} A.V. Svistunova, ^{[25, pp. 79-94]} Ya. Zalesny, ^{[28, p. 1]} M. Savchenko, ^{[30, pp. 51-61]} as well as a number of other authors. In turn, the issues of the formation and functioning of the institute of public control are studied in detail in the works of S. A. Benda, ^{[2, pp.122-124]} G. A. Vasilevich, ^{[7, pp. 78-90]} V. V. Grib, ^{[10, pp. 3-8]} I. A. Kravets, ^{[13, pp. 48-58]} R. L. Metlickovo, ^{[16, pp. 141-146]} O. V. Molodova, ^{[17, pp. 1-14]} I. M. Morozova, ^{[18, pp. 38-41]} E. V. Sayfullina, ^{[20, pp. 107-113]} E. Y. Semeleva, ^{[23, pp. 65-70]} A. A. Spiridonova, ^{[24, pp. 72-79]} P. V. Teplyashina, ^{[26, pp. 1126-1133]} Ya. Zalesny, ^{[29, p. 1]} V. V. Zhukova, ^{[31, pp. 56-59]} as well as many other scientists. At the same time, the proportion of works devoted to the study of the current state and prospects for the development of the institute of public-private partnership in the field of public control in the Russian Federation seems, in our opinion, to be clearly insufficient, not corresponding to the current dominant democratic trends in the development of constitutional law and legislation in Russia and the vast majority of countries around the world. ^{[1, pp. 40-47; 9, pp. 1; 27, pp. 59-65]} In this regard, the main purpose of the study is not only the formalization and analysis of the main problems associated with the formation and development of the institute of public-private partnership in the field of public control, but also the development and justification of a system of measures to resolve these problems.

Research methods and methodology.

The research methodology consists, in particular, of the following scientific methods of cognition: historical and legal; statistical; formal and logical; sociological; methods of financial analysis; comparative law; method of studying specific legal situations. The empirical basis of this scientific article is, first of all: the Constitution of the Russian Federation; materials of international and Russian law; documents of judicial practice; materials related to the activities of subjects of public control; sources of Russian and foreign scientific and legal doctrine of civil society control over the apparatus of public power.

The main text.

The existence of any modern democratic state on the planet presupposes that the people inhabiting it have a legal status formalized in legislation and implemented in law enforcement practice, allowing them to determine the main directions of development of society and the state. In the Russian Federation, the 1993 Constitution, which was adopted after the collapse of the USSR and the destruction of the totalitarian legal regime, consolidated the legal status of the multinational people of Russia as the bearer of sovereignty and the only source of power in the state. This means that the population of the Russian Federation has the right to exercise their powers through a broad system of direct and indirect forms of democracy, in which power is either exercised directly by the people or delegated to any public authorities, which are either directly elected by the people or formed by other public authorities, which, in turn, are elected by the people. The rights of the people to democracy and participation in the management of State affairs are system-forming rights. These rights of the multinational people of Russia (as well as other constitutional rights and freedoms of man and citizen, the rights and legitimate interests of legal entities) require a system of legal guarantees. Without these legal guarantees, such rights, freedoms and legitimate interests are an empty formality, a fiction. Thus, in the USSR, a huge number of rights were assigned to the people, which in practice were ignored by the totalitarian regime (for example, the right of the people to exercise popular control over power). In fact, for example, this right to control the authorities has not been implemented in practice. The people's control bodies had no right to control, in particular, law enforcement agencies. There were even public organizations outside the zone of popular control, primarily communist ones, which were beyond the control of the people in general.

In this regard, in the Russian Federation, these rights, freedoms and legitimate interests of individuals and legal entities are guaranteed for implementation, use and protection by a whole system of legal guarantees, starting with the activities of subjects of constitutional control and supervision, and ending with the functioning of numerous civil society institutions (the key of which is public control).

The Institute of public control in Russia appeared relatively recently – it was legalized in the Russian legal field only 20 years ago, when the Federal Law "On the Public Chamber of the Russian Federation" was adopted. This institution of civil society in Soviet times was preceded by the Institute of People's Control of Power, which was used in the USSR for more than 70 years with small temporary interruptions.

The formation and functioning of the institute of public control in the Russian Federation has been accompanied throughout its short history by numerous problems that hinder the growth of its effectiveness, and which are due to a number of reasons:

Firstly, this institution of civil society, as we noted above, is extremely young. There is no large-scale practice of organizing and conducting public control events in Russia. In fact, the subjects of public control in many areas of their activities are still pioneers. They cannot rely on the experience of the functioning of public control in these areas, unlike, for example, the countries of the European Union and the United States, where the institution of civil society control over the apparatus of public power has existed for a long time. Huge experience of civil control has been accumulated in these countries. In some countries, in particular in Switzerland, the institution of public control over power is the most important system-forming factor of public policy, which allows minimizing the level of corruption in public administration, ensuring a high level of legality in society.

Secondly, Russian legislation on public control contains a huge number of so-called "white spots", that is, areas of public administration, which, in fact, are removed from the number of objects of public control. What is the reason for this? First of all, there are a number of flaws in the text of Federal Law No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation". This Federal Law has removed from its subject matter a huge number of objects of public control, for example, activities, acts and decisions of law enforcement agencies, activities related to the provision of psychiatric care to the population, etc. What motivated the legislator's decision, bringing these objects under the action of the above-mentioned Federal Law? The federal law says that separate federal laws should be adopted for these objects of public control, which regulate the general principles of organizing and conducting public control in these areas of public administration. However, since 2014, in fact, none of the proposed federal laws have been adopted. Consequently, the "white spots" in the legislation on public control have not been eliminated, which creates a lot of problems in the organization and functioning of the institution of public control in the whole country.

Thirdly, the optimal organization and functioning of the public control system in Russia is hindered by the low level of legal culture and legal awareness of the population. What is the reason for this? First of all, this is due to the fact that during the existence of the USSR with its totalitarian regime, the population was largely excluded from participating in government. In this regard, the people have lost interest in the processes of formation and development of legislation, not trusting the public authorities in the country. In addition, historically in the USSR there was a very small number of lawyers, primarily in the field of protection of human and civil rights and freedoms, rights and legitimate interests of business entities. In fact, the institute of advocacy in the USSR also had a fake character, being a kind of appendage of the law enforcement system in the country. In addition, the low level of legal culture and legal awareness is also influenced by the fact that after the collapse of the USSR in the Russian Federation (as the successor state of the USSR), many institutions of civil society were destroyed (for example, the all-powerful political party of Communists). Other institutions of civil society have lost their authority in society (in particular, trade union organizations, public organizations and associations). The population does not trust them, which is confirmed, for example, by the fact that a minority of working citizens of the country are members of trade unions. New institutions of civil society in Russia are poorly formed. The State provides insufficient support in their formation and development. Consequently, the institutions of civil society in the Russian Federation cannot play an important role in the formation and development of legal culture and legal awareness of Russian citizens.

Fourthly, the development of the public control system in the Russian Federation is also hindered by the fact that huge areas of its territory, in fact, are not covered by the activities of subjects of public control in any way. For example, in a number of municipalities in certain regions of Russia (as a rule, these regions are subsidized and their economies are degraded) there are no municipal public chambers and councils. Why did this happen? This happened because the municipal budgets in these municipalities are subsidized. Municipalities are unable to finance the organization and activities of municipal public chambers and councils, which should consist not only of members acting on a volunteer basis, but also of professional workers who should make up the apparatus of these municipal public chambers and councils. As a result, public control measures are not organized and are not carried out on an ongoing basis in these municipalities. Consequently, in these municipalities, civil society does not control the activities, as well as acts and decisions, of the municipal government apparatus, as well as territorial divisions of state authorities.

Fifthly, the development of the institute of public control in the Russian Federation is significantly hampered by the fact that the country has a poorly developed mechanism for cooperation between public authorities and individuals and legal entities that have the right to participate in the processes of organizing and conducting public control events. This is partly due to the fact that legislation on public control, for example, the above-mentioned Federal Law No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation", poorly detailed the mechanism, conditions, procedure, principles, methods, forms of the above-mentioned cooperation between public authorities and individuals (legal entities). In particular, it is not clear from the legislation at all what the requirements are for individuals to participate in the functioning of the institute of public control. After all, it is quite obvious that some categories of citizens cannot act in such a capacity (for example, persons who are in prison, pedophiles, drug addicts, alcoholics, persons recognized by a court decision as incompetent, with limited legal capacity).

Thus, the most important negative factor hindering the development of public control in Russia is the weak development of the mechanism of interaction and cooperation of the apparatus of public authority with citizens and certain categories of legal entities in the process of organizing and conducting public control events in the country at one level or another. That is, the institution of public-private partnership in the field of public control is poorly developed.

In the scientific and educational literature in Russia, there is no single approach to understanding the institution of public-private partnership, as well as its most important variety in the field of public control. This is partly due, as we noted earlier, to the weak use of foreign experience in optimizing the mechanism of organization and functioning of the government system in the Russian Federation. ^{[8, p. 1]} In addition, the development of this institution is significantly hindered by the fact that public authorities are trying, on the one hand, to dominate this partnership, and on the other hand, they have extremely bureaucratized the mechanism, conditions and forms of this partnership. Moreover, a number of authors note that a high level of corruption negatively affects the prospects for the development of the institution of public-private partnership and, in general, ^{[11, pp. 29-37; 22, pp. 156-160]} since public authorities are frankly not interested, on the one hand, in transparency of their activities, and on the other hand, in its control by civil society institutions through the participation of the latter in the mechanism of public-private partnership.

In our opinion, the institution of public-private partnership in a broad sense differs in a number of features: a) it is a kind of interaction between public authorities and individuals and legal entities; b) this interaction is permanent or long-term; c) the purpose of this interaction is the development, organization of financing and implementation of any material, organizational legal, financial, social, economic, political, etc. projects; d) this interaction is usually regulated in legislation.

What are the features of public-private partnership in the field of public control in Russia?

First of all, the subject of this cooperation is limited to the area of organization and conduct of public control events, analysis and interpretation of the results of these events. In addition, this interaction involves the cooperation of efforts and resources of participants in such interaction. At the same time, the apparatus of public power, for its part, directs mainly organizational and legal resources and efforts, having a huge bureaucratic apparatus for this. In turn, legal entities, as well as individual citizens of the country, can use their personal time, the time of their employees, as well as material resources, proven technologies and practices for organizing and conducting control measures. However, the resources of public authorities are obviously greater. The purpose of public-private partnership is, first of all, to ensure the effective use of the above-mentioned resources, when, on the one hand, public authorities are under the control of civil society, and subjects of public control are controlled by the apparatus of public authority (in terms of effective spending of budgetary funds within the framework of the organization and functioning of public control measures). Thus, the efficiency and effectiveness of the work of this institution of civil society in the country as a whole increases.

However, the organization and functioning of the institute of public-private partnership in the field of public control are associated with numerous problems, among which, for example, the following can be distinguished:

Firstly, a significant problem complicating the formalization of the institution of public-private partnership in the field of public control is the fact that public control is not mentioned at all in the Constitution of the Russian Federation. Although attempts to consolidate it were made back in 1992-1993, when various drafts of the Constitution of Russia were being developed. A number of these projects contained not only a mention of the institute of public control, but also fixed the most important part of the Basic Law of the country the chapter "Civil Society", among the main institutions of which was public control. However, the draft Constitution, adopted at a national referendum on 12.12.1993, no longer contained any mention of the concepts of "civil society", "institutions of civil society", "public control". This circumstance significantly undermines the status of public control. The solution to the problem is seen in the incorporation of the above-mentioned concepts into the text of the Constitution. At the same time, in the Basic Law of the country, it is necessary, first of all, to detail the mechanism of interaction between the state and citizens (as well as public associations and other non-governmental non-profit organizations) in the field of public control. This will create an effective constitutional and legal basis for the institution of public control in Russia.

Secondly, a major problem is the fact that the Constitution of the Russian Federation, as well as the legislation of the country, avoids consolidating the concept, essence, and content of the institution of public-private partnership in Russia. The limits of this partnership, its foundations, the mechanism of implementation and many other issues are also unclear. The solution to this problem is seen in the detailing of the institution of public-private partnership in Chapters 1, 2 of the Constitution of Russia. This will allow for interaction and cooperation between the apparatus of public authority and citizens (as well as certain categories of legal entities) not from the position of absolute dominance of public authorities, but on an equal parity basis. Moreover, the Basic Law of the country enshrines the sovereignty of the people as its priority form. And the sovereignty of the apparatus of public power is only a derivative of the sovereignty of the people, to whom it is absolutely controlled. And any attempts to usurp authority, to appropriate it in a manner contrary to the law and the Constitution of the country, are a crime.

Thirdly, a significant problem in the development of the institution of public-private partnership in the field of public control in Russia is the fact that this institution is practically not reflected in any way in the legislation on public control. The solution to this problem is seen in the formalization of this institution in Federal Law No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation". In this Federal Law, the concept of "public-private partnership in the field of public control" should be consolidated, the mechanism of such partnership should be disclosed, the limits of its implementation should be indicated, the basis for such interaction of public authorities with individuals and certain categories of legal entities that, according to the legislation on public control, have the right to participate in the processes of organizing and holding public events control. Similar additions should be made to other federal and regional laws on public control, for example, to federal laws dated 04.04.2005 No. 32-FZ "On the Public Chamber in the Russian Federation", dated 06/10/2008 No. 76-FZ "On Public control over ensuring human rights in places of forced detention and on assistance to persons in detention places of forced detention".

Fourthly, a major problem hindering the development of the institution of public-private partnership in the field of public control is the fact that in Russia the positive foreign experience of such interaction of public authorities with individuals and certain categories of legal entities is poorly analyzed and used. In the West, there are hundreds of thousands of public organizations whose activities are somehow connected with the organization and control of civil society over the apparatus of public power, as well as any bodies and organizations authorized to exercise certain public powers. At the same time, these organizations (in particular, foundations) have enormous resources and capabilities, accumulating the efforts of many legal entities. This makes it possible, on the one hand, to properly finance the activities of the subjects of control of civil society, and on the other hand, to ensure full and comprehensive coverage of control measures in all spheres of public and state life. Of particular interest, in our opinion, is the experience of the countries of the European Union, Switzerland, in particular, as well as the United Kingdom and the United States. In particular, the United States has a long-standing tradition of this interaction between the state and civil society institutions in organizing and conducting civil society control activities over the functioning of the mechanism of public authority in the country. This made it possible, on the one hand, to minimize the bureaucratic procedures of public-private partnership, and on the other hand, to increase the effectiveness of both public and private financing of civil society control measures in the United States over public authorities and any objects authorized to exercise certain public powers.

Fifth, a significant problem hindering the development of the institution of public-private partnership in the field of public control in Russia is the frankly weak development of modern digital technologies in the country. The Russian Federation is not among the leading countries in this field. This does not allow the apparatus of public power and citizens (legal entities) to accumulate efforts aimed at developing the institution of public control in real time. Many subjects of public control in Russia do not even have their own websites (pages) on the Internet or on social networks. Their communication with the authorities in terms of technology is at the level of the 60-70 years of the last century. The solution to this problem is seen in the joint efforts of the Government of the Russian Federation and civil society in terms of organizing the development and implementation of modern digital technologies in the practice of organizing and functioning subjects of public control. The Russian Government should be entrusted with the development and implementation of a system of federal programs aimed at the creation and implementation of these technologies (and at the expense of the federal budget). It is also required to systematically train specialists for subjects of public control (programmers, sysadmins, engineers, etc.). This will optimize the mechanism of interaction between civil society and the apparatus of public authority in terms of the organization and functioning of the institute of public-private partnership in the field of public control in the Russian Federation.

Conclusion.

In the course of our scientific research, we have made a number of conclusions, in particular:

1. Public control acts as a system-forming legal guarantee that makes the whole set of rights, freedoms and legitimate interests of both individuals in Russia and non-governmental non-profit organizations real.

2. The functioning of the institute of public control in Russia is associated with numerous problems caused, in particular: a) the youth of the specified institution of civil society; b) the presence of a significant number of "white spots" in Russian legislation on public control; c) the low level of legal culture and legal awareness of the population of the Russian Federation; d) the absence of a widely branched network subjects of public control throughout the country; e) weak interaction between the state, individuals and legal entities in the process of improving public control in Russia.

3. The last of these problems is due to the insufficient development of the institution of public-private partnership in the Russian Federation as a whole, as well as its most important variety in the field of public control. At the same time, public-private partnership in a broad sense should be understood as long-term, as a rule, regulated in legislation, interaction of public authorities with individuals and legal entities regarding the development, financing and implementation of any material (in particular, infrastructural), organizational, legal, financial, social, economic and other projects. In turn, public-private partnership in the field of public control should be understood as long-term interaction and cooperation of public authorities with individuals and legal entities during the formation and functioning of subjects of public control, the organization and conduct of public control events, as well as the analysis and interpretation of the results of these events, by cooperating joint efforts and resources organizationally- legal, financial, economic, technological nature.

4. The formation and functioning of the institute of public-private partnership in the field of public control in the Russian Federation are associated with numerous problems, among which, for example, the lack of: a) formalization of public control in the Constitution of Russia; b) in Russian legislation and scientific legal doctrine, a unified approach both to understanding the concept, essence and limits of the implementation of the institute of public-private partnership, and its adaptation in various areas of public and public life; c) detailing in the legislation on public control of the institute of public-private partnershipprivate partnership (in particular, its concepts, essence, limits); d) a systematic approach to the analysis, adaptation and implementation of positive foreign experience of cooperation and interaction between public authorities and civil society institutions; e) the widespread use of modern digital technologies during the development and implementation of public-private partnership activities in the field of public control.

5. The resolution of these problems will require the development, justification and implementation of a system of measures, among which the most important are: a) incorporation of the institute of public control into the Constitution of Russia; b) introduction of the institute of public-private partnership into the country's legislation, including in the field of public control; c) assignment to the Government of the Russian Federation with the support of Public Chambers of Russia for the development and implementation of a system of federal programs aimed at the development of legislation in the field of public-private partnership, especially in the field of public control, the development of scientific legal research in this area (especially related to the analysis, adaptation and implementation of positive foreign experience in the organization and functioning of public–private partnerships in the field of public control, the use of in these processes of modern digital technologies).