Organizational and legal problems of functioning of public councils under the Ministry of Internal Affairs of Russia and its territorial bodies in matters of road safety

Kalyuzhny Yurii Nikolaevich PhD in Law Docent, the department of Administation of Work of Public Order Units of Staff Training Centre, Academy of Management of the Ministry of Internal Affairs of Russia 125171, Russia, g. Moscow, ul. Zoi I Aleksandra, 8 kaluzhniy-y@yandex.ru Other publications by this author

The full implementation of the state's functions is impossible without taking into account social interests, and the implementation of such principles as openness and accessibility of state bodies, a partnership model of interaction with civil society institutions. The formation of civil society in the context of the development of the rule of law shows the need for the active participation of civil society institutions in government, including through the coordination of socially significant interests of society in the field of road safety.

The development of the democratic foundations of the state and society has a positive effect on the formation of a unified balance of interests of the individual, society and the state in matters of security ^[1].

One of the most important ways of expressing democracy is the direct interaction of civil society institutions and the state ^[2].

The role of civil society institutions in public administration issues has traditionally been the subject of research in social, legal and political sciences.

Exploring the functions of the state, the philosopher Plato draws attention to the fact that "an ideal state is able to ensure a balance of interests and social justice, allowing to resolve contradictions between the individual, society and the state" ^[3].

The legislation of the Russian Federation provides for various forms of expression of citizens' participation in government, one of which is the public councils under the Ministry of Internal Affairs of the Russian Federation and its territorial bodies.

For administrative legislation, such a form of activity of public councils as public control is not a novelty. I. V. Teplyashin, exploring the forms of implementation of public control during the years of Soviet power, identifies the institutions of workers' and people's control to identify violations in the activities of organizations and institutions, as well as people's squads and friendly courts. In the Soviet state, public councils did not function, at the same time, the organizational forms of public activity characteristic of that time made it possible to identify violations in the work of organizations and institutions, contributing to the strengthening of law and order and legality ^[4].

Public control in the Federal Law "On Police" is devoted to Article 50, which reflects the guidelines, general provisions related to the activities of public councils under the Ministry of Internal Affairs of Russia and its territorial bodies.

The consolidation of the task of public control allows us to assert the development of this institution in the structure of administrative law and control over the activities of the police.  Public control in the scientific literature is defined as the process of taking public representatives' participation in determining the main directions of domestic and foreign policy of the state, checking and monitoring the procedure for its implementation ^[5].

The norms of law relating to this control set forth in the Federal Law "On Police" were developed in the norms of Federal Law No. 212-FZ of July 21, 2014 "On the Basics of Public Control in the Russian Federation", which legislated the legal forms of expression of public control carried out by public councils.

This law provides for quite a variety of forms of expression of the control under consideration by the public, such as public monitoring, public inspection, public expertise. Considering the designated forms of expression of public control, it seems possible to note their borderline nature with other forms of activity in general of public councils that are not directly related to the control under consideration, which is especially clearly embodied in such legislatively fixed forms of public activity as discussions, public hearings and other forms of expression of public control activities that do not contradict legislation ^[6].

In addition to implementing the task of control, public councils coordinate socially significant interests between the state and society, which is their main purpose ^{[7, 8]}.

Based on the analysis of Part 7 of Article 9 of the Federal Law "On the Police", public councils should act as a link on the one hand, primarily bodies that are part of a single system of public authority, on the other hand, citizens to coordinate socially significant interests, address the most important issues of the activities of internal affairs bodies, including the area under consideration security.

Further analysis of this norm allows us to establish the most acceptable forms of activity of public councils related to the coordination and resolution of the most important issues of the activities of internal affairs bodies in relation to the security under consideration. These are:

– involvement of the public in the implementation of the main directions of state policy in the field of ensuring the considered security;

– participation of citizens in the development and consideration of concepts, regulations and civil initiatives on the most pressing issues of ensuring the considered security;

– involvement of citizens and representatives of public associations, human rights organizations and trade unions in the discussion in the media of the most significant areas of traffic;

– involvement of the public in the implementation of activities for the analysis and evaluation (public expertise) of draft legal acts and decisions, actions of subjects of ensuring the considered security;

– implementation by representatives of civil society of public control over the activities of police units performing certain functions in the field of ensuring the security in question ^[8].

The above suggests that the federal legislation defines the forms of coordination of socially significant interests of bodies that are part of a single system of public authority with civil society, as well as solutions to the most important issues of their activities related to road safety.

Thus, legal prerequisites have been created for the effective interaction of bodies that are part of a single system of public authority with civil society.

Public councils are a kind of instrument for expressing the will of civil society, its democratic principles and a form of participation of citizens in the management of public affairs, within the limits defined by legislation.

In this regard, it seems necessary to turn to the opinion of Professor S.A. Avakian, who develops ideas about the relationship between the state and society and points out that in matters of ensuring the rights of citizens it is possible to talk about various institutions of civil society or its mechanisms, but do they exist in reality, or is it an appearance, and then what are they worth ^[9]?

In relation to this context, it should be noted that despite the existence of public councils for more than ten years, an analysis of the practice of their functioning, scientific and specialized literature allows us to assert that there are separate problems, both legal and organizational, that do not allow them to fully fulfill their intended purpose.

Its composition is important for the effective functioning of the public council. The basis for the formation of which is the principle of voluntary participation of the public in its activities in accordance with the procedure established by the head of our state. The analysis of normative legal acts defining the requirements for the composition of the public council, or rather who cannot be part of it, allows us to point out the absolutely liberal principles laid down in the norms.

Despite the completely unassuming requirements for applicants to public councils, the personnel composition of individual public councils, at least makes you think about the effectiveness of the tasks facing these councils.

In this context, it seems completely justified to agree with the opinion of Professor A.A. Grishkovets, who points out that the public council should not be an elite "closed club" of public representatives who have the opportunity to interact with the leadership of the federal executive authority under consideration. It is important to ensure not formal, but real functioning of public councils. Representatives of public councils within the framework of the current legislation should exert organizational and managerial influence on decision-making ^[10], be motivated and purposeful in coordinating socially significant interests between the state and society, including in the field of ensuring the security in question.

Undoubtedly, motivation and desire to protect public interests must be taken into account when forming the composition of the public council, but an equally important component is the observance of moral principles by representatives of the public council, formulated in the Code of Ethics of Members of Public Councils. The specified wording in the regulatory legal acts does not represent an effort to comply with "modern trends", but represents a fully justified and justified requirement for members of public councils, corresponding to the provisions of the Basic Law of our country ^[11].

It should be borne in mind that the formed procedure for recruiting public councils is aimed at excluding the membership of representatives of the unified system of public authority, which is predetermined by the presence of such councils to control the activities of the federal executive body in the field of internal affairs. Membership in the legal institution under consideration of persons who are not endowed with state-governmental powers is the most important guarantee of the independence of public councils and their ability to express public interests ^[12], provided by the legislation in ways.

M.A. Kokotova, investigating the procedure for the formation of members of public chambers (councils) of Russia, referring to the analysis of foreign legislation, points to the ban on the participation of representatives of political parties provided for by French law, since representatives of political parties often pursue their own goals related to the struggle for power and electoral majority ^[13]. We believe that despite the absence of a direct ban on the entry of representatives of political parties into the public council in the norms of Russian law, the existing procedure for their recruitment excludes the membership of representatives of the unified system of public power, that is, representatives of those state and municipal positions in which political parties can realize their political ambitions to the greatest extent, which does not require additional consolidation the designated restrictions in the norms of Russian law.

In the formation of qualified members of public councils, the leading role is played by state and regional authorities, as well as public chambers, to varying degrees participating in the organization and conduct of competitions for the purpose of selecting candidates for members of public councils.

The lack of proper regulatory regulation of the procedure for the formation of public councils suggests a different degree of participation of public chambers in the mechanism of their creation and, as a result, different regional practices. In some regions of our country, representatives of the public chamber are only present as part of the competition commission (Tambov region), in Kurgan and Orenburg they are the organizers of the competition, and in the Sverdlovsk region they organize and conduct the competition. Moreover, individual state bodies, together with regional public chambers, develop and establish additional requirements for membership in the councils under consideration, in addition to those provided for in Part 4 of Article 13 of the Federal Law "On the Basics of Public Control in the Russian Federation" (for example, the Amur, Voronezh, Kemerovo, Orenburg and Tambov regions) ^[14].

The variability of the order of formation of public councils, as well as the definition in the regions of our country of additional requirements for representatives of public councils shows the process of normative legal development and formation of the institution of public councils as a way of expressing the activities of civil society in the management of state affairs, by coordinating socially significant interests and solving the most important issues related to the competence of public councils under the relevant executive bodies the authorities.

It seems that for the effective functioning of public councils, a huge amount of work is needed to transform the institution in question into a real instrument for expressing the position of civil society in the management of state affairs.

The provisions contained in the Standard of Activity of the Public Council under the federal executive authority (model provision), adopted by the decision of the Council of the Public Chamber of the Russian Federation, cause some discussion ^[15]. In accordance with paragraph 6, part 1 of Article 2 of the Federal Law "On the Public Chamber of the Russian Federation", one of its tasks is to provide methodological assistance to public chambers established in the subjects of the Russian Federation, as well as social associations whose activities are aimed at the development of civil society ^[16].

In a democratic state, the activities of public councils, based on their perception in a broad sense, are aimed at the development of civil society, accordingly, the Standard adopted by the Public Chamber of the Russian Federation should be the basis for the formation of a Public Council under the Ministry of Internal Affairs of the Russian Federation. But, as far as this Standard, being a standard document, can relate to the functioning of the public council formed under the federal executive authority in the field of internal affairs, whose activities are regulated by the Regulations on the Public Council under the Ministry of Internal Affairs of the Russian Federation ^[17]. In addition, Part 8 of Article 9 of the Federal Law "On Police" establishes that the procedure for forming public councils is established by the President of the Russian Federation.

A similar question arises with regard to the activities of public councils under other federal executive authorities. Part 2 of Article 20 of the Federal Law "On the Public Chamber of the Russian Federation" establishes that the procedure for the formation of public councils under federal executive authorities is determined by the Government of our country, and in relation to federal executive authorities, whose activities are managed by the President of the Russian Federation, is determined by the latter.

It seems that this Standard can serve as a basis for the development of a legal framework for the functioning of public councils under those federal executive authorities under which they have not yet been formed or can be taken into account when changing regulatory acts regulating those already carrying out their activities. At the same time, it is not entirely clear why the Standard reduces the purpose of public councils to the exercise of public control over the activities of the federal executive authority, although Article 2 of the Federal Law "On the Public Chamber of the Russian Federation" stipulates that its purpose is to coordinate socially significant interests between the state and society.

Considering the activities of public councils in relation to the field of road traffic, it is necessary to pay attention, first of all, to their coordination work of the volunteer movement, voluntary people's squads, representatives of automobile clubs for legal information, promotion of road safety, joint participation in preventive measures, flash mobs with road users, interaction with the media.

Summing up the work of the police units for 2021, the President of our country Vladimir Putin noted the importance of work on the formation of a legal culture on the roads, drawing attention to the existing positive experience of interaction between the Ministry of Internal Affairs of Russia with civil society institutions, volunteer associations and pointed out the need to develop such a partnership ^[18].

The comparative novelty of the institute of public councils, the legal and organizational problems of their functioning show the need to improve their activities, the order of formation, interaction and public control.

Improvement of the activities of public councils is possible in the following areas:

– coordination of the heads of public councils by public chambers, as well as preventing the possibility of determining membership in the structure under consideration exclusively by state authorities;

– introduction to the public councils of representatives of legal entities and individual entrepreneurs directly related to ensuring the safety in question (representatives of driving schools, car dealerships, persons involved in the organization of traffic);

– in order to further implement the principle of openness of the police to society, it is necessary to expand the objects of control by civil society institutions, primarily related to the procedure for providing public services in the field of security in question;

– development of the legal basis for the functioning of the social institution in question, including the definition of uniform requirements for their representatives;

– improving the forms of control implementation by analyzing the practice of implementing regional and municipal programs related to the field of road traffic.

Thus, the intersectoral nature of ensuring road safety in the implementation of their functions by the police, the high social significance for the society of the road traffic sphere, predetermine the need to improve the mechanisms of citizens' participation in the management of public relations related to ensuring the safety in question, one of which is the public councils under the federal executive authority in the field of internal affairs and its territorial bodies. For the effective functioning of the institution under consideration, it is necessary to improve the organizational and legal foundations that help transform it into a real tool for expressing the position of civil society, allowing for managerial influence on the sphere of traffic.