"Actual problems and the role of the Prosecutor's Office in the implementation of the human rights function related to the rights of minors to social security"

Shel'menkov Valentin Nikolaevich ORCID: 0000-0001-6204-5157 junior research assistant, Lecturer, Department of Information Law and Digital Technologies, Moscow State Law University named after O.E. Kutafin (MSUA) 125993, Sadovaya-Kudrinskaya str., 9, office 27 vnshelmenkov@msal.ru

International and Russian legal acts reinforce the value of the rights and legitimate interests of children in all spheres of life. Children have the right to care and assistance from the State.

Having signed the Convention on the Rights of the Child and other international acts in the field of protection of children's rights, the Russian Federation expressed its commitment to participate in the efforts of the world community to create an environment comfortable and friendly for children's lives.

The data of the Prosecutor General's Office of Russia for 2019 on the state of affairs in the sphere of the realization and protection of the rights of adolescents: 52,440 protests were brought, 67,684 applications were sent to the court, 129 856 submissions were made.

In accordance with Article 1 of the Federal Law "On the Prosecutor's Office of the Russian Federation"^[7], the Prosecutor's Office of the Russian Federation is a unified federal centralized system of bodies exercising supervision on behalf of the Russian Federation over compliance with the Constitution of the Russian Federation and the execution of laws in force on the territory of the Russian Federation.

The powers of prosecutors are defined in Article 129 of the Constitution of the Russian Federation^[8], Articles 17, 18, 19, 22 of the Federal Law "On the Prosecutor's Office of the Russian Federation"^[9] and are detailed by a number of regulations of the Prosecutor General's Office. One of the powers is to supervise the observance of human and civil rights and freedoms.

In accordance with the Federal Law "On the Prosecutor's Office of the Russian Federation"^[10] and the Regulation on Coordinating the Activities of Law Enforcement Agencies to Combat Crime, approved by Presidential Decree No. 567 of April 18, 1996^[11], the Prosecutor's Office coordinates the activities of law enforcement agencies to combat crime, including juvenile delinquency,

One of the most important human rights functions of the prosecutor is the protection of the rights of minors by the methods and means available to the prosecutor's office to strengthen the rule of law and protect the legitimate interests, freedoms and powers of minors^[12]. Protecting the rights of teenagers, the Prosecutor's Office of Russia identifies violations of children's rights, including in legislative acts that have been adopted by state authorities, other bodies and organizations, and their officials. Thus, an important function of the Prosecutor's Office is to identify and suppress violations of the rights of minors in various legislative acts. In this case, the prosecutor can act in different ways: he either brings a protest against such a legislative act to the state body that issued it, or appeals to the court in order to cancel it by a court decision, or submits a submission on the elimination of violations of the rights of the child to the appropriate authority or the appropriate official.

According to Federal Law No. 2202-1 of January 17, 1992 "On the Prosecutor's Office of the Russian Federation"^[13], the Prosecutor General of the Russian Federation has the right to submit proposals to bodies with the right of legislative initiative to amend, supplement, repeal or adopt laws and other legal acts. Now the Prosecutor's office is actively involved in the law-making activities of state bodies of the Russian Federation and local self-government bodies.

The existence of a human rights function in the prosecutor's office allows the prosecutor's control to be extended to all spheres of public relations.  Legislative acts are studied, checked, the nature of their effect on the legislative status of a person, and on the basis of this, a conclusion is made about the presence or absence of violations in the field of public welfare.

The prosecutor's control over the protection of the rights of minors, depending on the situation, may have an unexpected effect in the form of a reaction to an appeal about the violation of the rights of children by outsiders, including the public or the media. The Prosecutor's Office, upon application from certain persons, identifies offenses against adolescents, planning and conducting inspections of guardianship and guardianship authorities, including in the field of education, health and public welfare. As a result of the verification measures, criminal procedural proceedings may be opened, or a case of an administrative offense. To date, the prosecutor's office is still the only body that has all the opportunities to actively influence the suppression of violations of children's rights in the activities of state authorities, educational institutions, etc. The protection of children's rights by the prosecutor's office is implemented not only in the form of identifying offenses, but also determining methods of protecting the interests of minor children in court. In case of violation of the rights and freedoms of a child, the prosecutor has the right, if the guardianship and guardianship authorities or legal representatives deviate from this right, to present and support the interests of the child in court. The prosecutor also has the right to initiate a criminal case of personal or private-public prosecution on the fact of a criminal act against a child in the absence of such treatment from the child himself or his legal representatives.

The prosecutor's duties include carrying out planned and unscheduled verification measures to work with minors, identifying violations of legislation in the fields of education, healthcare, protection of the social rights of disabled children with disabilities and orphans. In order to eliminate violations of the rights of minors, the prosecutor takes constructive response measures to state and local self-government bodies, guardianship and guardianship authorities, commissions for the affairs of adolescents and the protection of their rights, law enforcement agencies, educational and social protection institutions, employers. The issues of protection and protection of the rights of adolescents are under special control in the Prosecutor's office.

Specific to this area of prosecutorial supervision is the right to review and verify applications, complaints and other reports of violations of human rights and freedoms.

At the same time, in case of violation, state authorities must immediately provide information to the prosecutor's office. Upon receipt of the relevant message, the prosecutor conducts an inspection, then transferring materials to the bodies of inquiry and preparatory investigation, issues a warning about the inadmissibility of violations of the law if the information relates to illegal actions being prepared.

In educational institutions, in the event of a violation of the rights of minors, school leaders are presented with ideas about the elimination of violations of the law in the designated area of legal relations and the directors are brought to disciplinary responsibility. For example, according to the results of the prosecutor's verification measures of the implementation of legislation on the protection of the rights of adolescents by the interdistrict prosecutor's office of the Budyonnovsky district in the analyzed period of 2017, 660 violations of the law were revealed, 74 protest actions were brought, 109 submissions were made, 83 officials were brought to disciplinary responsibility, 71 statements of claim were sent to the court, warnings were not issued. Based on the materials of the prosecutor's verification measures, 1 criminal case and 20 cases of administrative offenses were initiated.

The district prosecutor's office provides information on the state of law and order in the sphere of the implementation of the rights of adolescents and the need to take measures to the prosecutor's office of the region (krai), which in turn provides information to the Children's Ombudsman, the head of the region of the region (krai). The work on the prevention of violations of the rights of adolescents is carried out by the staff of the Prosecutor's Office in a timely manner in the process of fulfilling their own specific official obligations. The norms of civil procedural law provide the prosecutor with the opportunity to apply to the court for the protection of the rights, freedoms and legitimate interests of the child due to his age, the absence of legally authorized persons or other circumstances. In some cases, the law obliges the prosecutor to take part in cases of adoption, its cancellation, deprivation of parental rights, their restriction or restoration.

Thus, in accordance with Article 35 of the Federal Law of January 17, 1992 N 2202-1^[14], the prosecutor participates in the consideration of cases by the courts in cases provided for by the procedural legislation of the Russian Federation and other federal laws. In accordance with the procedural legislation of the Russian Federation, the prosecutor has the right to apply to the court with an application or to enter into a case at any stage of the process, if this is required by the protection of the rights of minors. The powers of the prosecutor participating in the judicial review of cases are determined by the procedural legislation of the Russian Federation, including Articles 10, 32, 35 of the Federal Law "On the Prosecutor's Office of the Russian Federation"^[15], Article 45 of the CPC of the Russian Federation ^[16], Article 39 of the CAS of the Russian Federation^[17].

Here are some examples of the human rights activities of the Prosecutor's Office:

1. in the field of inheritance rights

The Nikulin interdistrict Prosecutor's Office of Moscow^[18] received information that a family of four people (spouse, spouse and two young children) lived in an apartment on Przhevalsky Street. The living space was owned by the spouse and his mother. In June 2016, after the death of his spouse, his widow received from a notary a certificate of inheritance in accordance with the law in the amount of 1/2 of the share in the right of common ownership of the apartment. The mother of the deceased refused a share in the inheritance. In violation of the current legislation, when receiving an inheritance certificate, the woman did not take measures to provide her children with a share of the inheritance. In connection with this fact, the prosecutor sent a statement of claim to the court with a demand for invalidation of the designated certificate of inheritance, and the termination of the woman's right of ownership of 1/2 of the share in the right of common ownership of the apartment, and recognition of the mother and children's right of ownership of 1/6 of the share in the right of common ownership of the apartment. According to the court decision, the prosecutor's demands are satisfied in full. Appeals of prosecutors to the courts in order to protect the rights of minors increase the productivity of this process, often contribute to the real restoration of the violated hereditary rights of adolescents in full.

2. in the field of education

To replace the previous Order regulating issues of supervision in the field of legal relations, on November 26, 2007, Order No. 188 "On the organization of prosecutorial supervision over the execution of laws on minors and youth" was adopted^[19].

The new Order began to regulate the issues of the rights of minors to public access and free higher education, since the old order did not always meet the requirements of the legislation. Today there is an imbalance between the needs of the state for specialists of a certain profile and the capabilities of universities to train graduates of this profile. In addition, the quality of training of students who receive education through distance learning technologies in the form of an external degree does not fully comply with state educational standards. A significant number of universities carry out the educational process without the necessary material and technical base and teaching staff, in buildings not adapted for conducting educational activities.

3. in the housing sector

State structures systematically violate regulations on the protection of the rights of adolescents in the housing sector. As practice shows, at the moment, control by municipal authorities in the field of housing relations with the participation of teenagers is extremely weak. The state of law and order in the sphere of the implementation of housing rights of adolescents is of concern. There are especially many problems in the field of protecting the housing rights of children who have been left without parental care, orphans. According to the data of the Prosecutor General's Office of the Russian Federation, according to the results of prosecutor's inspections in the field of compliance with the housing rights of minors from 2018 to 2019, more than 579,805 offenses were identified^[20]. The facts of the theft of allocated funds for housing minors from the budgets and the lack of control over their spending have been discovered. At the same time, today more than 230 thousand orphans are registered as needing housing.

The main "fronts" of the prosecutor's control over the implementation of the housing rights of adolescents should include:

- control over the execution of the housing rights of adolescents by national executive authorities, executive authorities of the subjects of the Federation, local administrative bodies and their officials, whose duties are charged with protecting the designated rights. The main document regulating the organization of supervision over the execution of housing rights of minors is the Order of the Prosecutor General of the Russian Federation dated November 26, 2007 No. 188 "On the organization of prosecutorial supervision over the execution of laws on minors and youth"^[21].

The Order provides for the duty of prosecutors to respond in principle and in a timely manner to cases of violations of the housing rights of minors, to take exhaustive legal measures to restore them, as well as to raise questions about the responsibility of officials of local self-government bodies, housing authorities, guardianship and guardianship authorities, institutions for state registration of rights to real estate and transactions with it and notaries for every violation of the requirements of the law on the special procedure for making transactions with housing (exchange, sale, privatization, etc.) in which minors live (clause 3.3).

This legislative act obliges prosecutors to prevent the adoption of local legislative acts that do not comply with national legislation and detract from the interests and rights of children (paragraph 2). According to the Order, prosecutors must regularly check the implementation of laws regulating the protection of the property rights of children left without parental care and orphans (paragraph 5), require officials executive authorities and local self-government bodies taking effective measures to implement the provisions of Federal Law No. 159-FZ of December 21, 1996 "On additional guarantees for the social support of orphans and children left without parental care" on the realization of the right to housing (clause 5.1)^[22].

Prosecutors also reveal violations of the rights of teenagers when directing the funds of the matkapital to improve living conditions. Thus, during the inspection carried out by the prosecutor's office of the Talitsky district of the Sverdlovsk region^[23], it was established that on March 22, 2011, P. applied to the management of the Pension Fund of the Russian Federation for the Talitsky district for the issuance of a state certificate for maternal (family) capital.

The Management of the Pension Fund of the Russian Federation in the Talitsky district in April 2011 made a decision to issue a state certificate for maternal (family) capital in connection with the birth of a second child.

In June 2011, P. was issued a state certificate for maternal (family) capital.

In June 2014, P. sent to the management of the Pension Fund of the Russian Federation in the Talitsky district an application for the disposal of funds (part of the funds) of the maternal (family) capital to repay the principal debt for housing and pay interest on the loan in the amount of 453,026 rubles. 00 kopecks. The Management made a decision to satisfy the application for the disposal of maternity capital funds for improving housing conditions.

In accordance with the apartment purchase and sale agreement, P. purchased a residential building in Talitsa, registered ownership of the specified premises.

According to an extract from the Unified State Register of Rights to Immovable Property and Transactions with It, on August 13, 2015, the encumbrance was removed from the residential premises, therefore, by February 13, 2016, P. had to fulfill the obligation stipulated by law. However, the residential premises in common shared ownership, including children, were not issued.

The Talitsky district Prosecutor's Office, in order to protect the rights of minor children of P., sent a statement of claim to the Talitsky District Court for recognition of the ownership right of 1/3 of the share in a residential house acquired with the use of maternity capital funds in respect of P.'s children and to oblige P. to register the ownership rights of children within 30 days from the date of entry of the court decision into force legal force.

The court satisfied the prosecutor's claims.

Another example: the prosecutor's office of the Mamontovsky district of the Altai Territory found out that citizen X., having received the funds of the matkapital, issued the acquired residential house into her individual property, thereby violating the housing rights of her own minor daughter. The prosecutor's statement restored justice in this case: for the young daughter of citizen X. the right of ownership to the designated residential building was recognized.

It follows from this that at the stage of transferring funds, the work of the Pension Fund and the notary does not raise questions from the supervisory authority. The parent applies to the Pension Fund, where his application is considered, pays for the notarized obligation and registers the residential premises in his property.

In the future, the function of protection against interference or encroachment on the housing of minors is not implemented. None of the state authorities controls the execution of the notarial obligation to issue shares to children. The notary's duty is only to certify documents. The Pension Fund, having transferred funds, does not further control the process of implementing maternity capital and does not check the registration of shares in the ownership of minor children. The Department of Social Protection does not deal with these issues.

In addition, the issues of providing housing for families with children with disabilities who need to improve living conditions cause a sense of concern. Housing, depending on the state of the child's health (for example, a visually impaired child, hearing impaired, etc.), should be suitable for the normal life of a child with disabilities. Cases of illegal refusal to provide housing out of turn to children who have severe forms of acquired diseases have been recorded. For example, children who use wheelchairs due to their illness are provided with premises that are recognized as unsuitable for living in accordance with the established procedure^[24].

Administrations, social protection departments refuse for the following reasons:

- there are not enough documents to obtain housing;

- missed deadlines for submitting documents;

- state authorities write unsubscriptions stating that this does not fall within their competence and recommend contacting a higher organization or a court to resolve this issue.

For example, the Prosecutor's Office of the city of Artem, Primorsky Krai^[25], at the request of a local resident, checked the implementation of legislation on the protection of housing rights of a family with a disabled child.

It is established that the applicant is the mother of a disabled child (wheelchair user). In April 2019, the municipality registered the family as needing housing on an extraordinary basis. However, contrary to the requirements of the law, residential premises have not been provided.

In order to protect housing rights, the prosecutor's office appealed to the court with a statement of claim to impose an obligation on the administration of the Artemovsky city district to provide a comfortable living space out of turn.

The court's decision satisfied the requirements of the prosecutor's office. Currently, an apartment is distributed to the family^[26].

The study of cases in this jurisdiction revealed the following most popular "fraudulent acts":

- getting an apartment at an inflated price, unsuitable for living;

- making a fake or far-fetched transaction for the purchase of relatives from housing;

- conclusion of a fictitious agreement on the sale of housing with the use of housing loan funds.

The social vulnerability of minors is often the inactivity of supervisory agencies, the overload of the judicial system. This requires the prosecutor's office to carry out productive protection of housing rights of adolescents.

Conclusions:

By the time the first laws were adopted in the field of regulating the protection of children's rights, many normative legal acts were already in force, mobilizing the social sphere to protect children's rights.

If we follow the chronology of the legal foundations of the prosecutor's office, the first legislative acts were: The Constitution of the Russian Federation^[27]. The Constitution of the Russian Federation established the powers of prosecutors to ensure the observance of human and civil rights and freedoms. However, in 2002, a big important step forward was made in this area, Federal Law No. 2202-1 "On the Prosecutor's Office of the Russian Federation" was adopted on 17.01.1992^[28], which still exists today. This law for the first time established a ban on interference of the Prosecutor's office in economic activity, the functions of the prosecutor's office increased. The law was aimed at protecting the observance of human and civil rights and freedoms, which is the most important function of the state. The basic provisions of this law are still in force today, taking into account its subsequent repeated additions and changes. Subsequently, departmental orders of the Prosecutor General of the Russian Federation for the protection of the rights of youth and minors were adopted, which established the main directions of the Prosecutor's Office for the protection of children's rights. It is worth noting that still not everyone knows that the prosecutor's office can engage in human rights activities. According to Federal Law No. 2202-1 of 17.01.1992 "On the Prosecutor's Office of the Russian Federation"^[29], the Prosecutor's Office, in addition to supervision, can engage in human rights activities. To do this, she has all the powers to quickly intervene to eliminate violations of children's rights in the field of social security. For example, her duties include routine inspections in the field of healthcare, education, etc.

Ways to improve the activities of the Prosecutor's Office related to the protection of the rights of minors to social security

The study of the law-making practice of the prosecutor's offices indicates that the protection of the rights of adolescents remains the most pressing areas for the implementation of measures to improve legislation. In order to improve the organization of prosecutorial control in the field of the protection of the rights of adolescents in terms of goal-setting, it is necessary to achieve consistency and completeness of the entire structure of the tasks of the prosecutor's office, due to the fact that at the moment there is no such structure. I propose to amend the Law on the Prosecutor's Office of the Russian Federation, the Order of the Prosecutor General of the Russian Federation dated May 22, 1996 No. 30 "On the organization of prosecutorial supervision over the execution of laws, observance of human and civil rights and freedoms," etc.

At the moment, the role of the Prosecutor's Office is of paramount importance. However, the prosecutor only pointwise protects the rights of certain minors, and this work largely depends on the exactingness and competence of the prosecutor's office officer in charge of overseeing compliance with juvenile laws. At the same time, the analysis of the state of affairs suggests the need to adjust the legislation, to consolidate the mechanism in which it will be impossible to sell housing purchased with the use of maternity capital without respecting the rights of children. We consider it necessary, in order to improve the effectiveness of the implementation of the institute for the Protection of children's housing rights, to supplement Federal Law No. 256-FZ of December 29, 2006^[30] with provisions providing for the obligation of the Pension Fund, when transferring funds, to send information on the real estate object to the office of the Federal State Registration, Cadastre and Cartography Service to impose restrictions on the alienation of the object without registration of the required shares of children. In order to protect the rights of children born after the parents have disposed of the funds of the maternity capital for the purchase of housing, the civil registration authorities must be required to inform the office of the Federal Service for State Registration, Cadastre and Cartography about the birth of the third and subsequent children in order to make it impossible to alienate the object without registration of the required share of children.

It is emphasized that the distribution of the prosecutor's automatic workplace to help the prosecutor who monitors the implementation of laws on the protection of the rights of adolescents (the prosecutor's office "Children") will help increase the productivity of the organization of monitoring the implementation of the housing rights of adolescents, this system will assist the prosecutor's office staff so that they can quickly decide on the protection of the rights of adolescents.

One of the main methods of detecting violations of the protection of the rights of adolescents is a prosecutor's check. Its elements are preparation for verification, during which the state of law and order in the studied area is analyzed, an inspection plan is drawn up, the issue of attracting professionals is resolved and other preliminary measures are carried out, as well as an actual inspection, which involves collecting information about violations of rights in various areas and studying it, consolidating the acquired evidence base, resolving the issue of application measures of the prosecutor's response to the identified violations of the rights of adolescents, depending on their nature, degree of prevalence and severity of the consequences that have occurred.

I draw attention to the absence in the Law on the Prosecutor's Office of detailed regulation of issues related to the procedure and mechanism for involving the prosecutor in the role of an expert in the audit, which is an obstacle to the effective implementation of control over the implementation of the rights of adolescents. I think that when preparing for the verification of the fulfillment of the housing rights of teenagers, the main role is played by drawing up a plan for this inspection, which should reflect the objects of the inspection, the timing of its conduct, the issues to be clarified, the documents needed for the claim, the bodies and organizations from which they will be claimed, which will allow determining the nature of the upcoming inspection, the methodology its conduct, the order of research and study of the collected information. Often, checks on the protection of the rights of adolescents are conducted by prosecutors in the guardianship and guardianship authorities, other state authorities of the subjects of Russia and local administrative bodies, organizations for orphans, territorial bodies of the Federal State Registration Service and the Pension Fund of Russia. Therefore, it is necessary to prepare in advance for this check, to prepare an approximate list of questions to be clarified in the process of this check on the implementation of the rights of adolescents, depending on the objects of the check, starting from the range of their capabilities and the tasks facing them.

In order to increase the productivity of monitoring the implementation of the rights of adolescents, the prosecutor, based on the results of studying information about the nature of the violation, the causes and criteria that contribute to it, the consequences that have manifested themselves, and the possibility of their elimination, should develop a strategy for responding to the violations identified, which involves the use by the prosecutor of such legislative means that allow the timely and full return of the violated rights of adolescents. It is often expedient to apply a set of response measures provided for by law of a criminal-legislative, administrative-legislative and civil-legislative nature. It is emphasized that in order to organize appropriate control over the consideration of acts of prosecutorial response to violations of the housing rights of adolescents, the prosecutor who exercises control in this industry needs to maintain a consolidated list of such acts (compared with maintaining a list of documents that were sent by the head of the Prosecutor General's Office of Russia and his deputies to national public authorities, to implement control over their consideration).

Prosecutors, exercising control over the work of guardianship and guardianship authorities, are obliged to act at their own discretion, which requires their highest professional specialization. Protecting the rights of teenagers adopted by foreign citizens, the prosecutor, in accordance with the current legislation, takes part in court proceedings on adoption cases. The task of the prosecutor is to verify compliance with the law of actions and decisions of all persons involved in the process. But the law misses in what form such activity of the prosecutor is obliged to manifest itself.

In general, scientific research works emphasize that the absence of an established subject of control at the level of the law pulls the lack of uniformity in the organization of work, which often has a negative impact on the productivity of the prosecutor's office in the field of protecting the rights and freedoms and legitimate interests of adolescents. At the same time, it is proposed to make an independent branch of prosecutor's control – control over the implementation of legislation on adolescents.

For effective cooperation of different subjects who dealt with the difficulties of the family and minors, the following directions can be identified:

- creation of a unified information base for the proper exchange of information between the subjects of the system of prevention of neglect and delinquency among adolescents;

- creation of interdepartmental working groups, development of a detailed plan of interdepartmental measures that were aimed at preventing juvenile delinquency and their commission of other offenses;

- participation in the preparation or collective development of proposals for the formation of various comprehensive plans, local programs that were aimed at protecting the interests of children;

- consideration of the need for the adoption of relevant legislative acts;

- conducting general visits to the territory to receive people, participating in joint inspections with representatives of the prevention system, employees of the Children's Ombudsman's office in the region.

At the same time, the difficulties of violating the rights of adolescents and young people remain relevant. The number of violations detected by the staff of the prosecutor's office grows once a year, there is no radical improvement in the situation in this area.

Conclusions:

Describing the role of the Prosecutor's office in the protection of the rights of minors, the author of the work draws attention to the fact that it acts in several qualities:

- as a special body of state protection;

- as a mechanism of influence on the social process.

In this regard, the welfare of children on social security depends on the proper organization of the prosecutor's office.

Summing up, the author of the study divides the activities of the prosecutor's office into three areas:

The 1st direction is the organization of work on the establishment and repeal of legislative acts that violate the rights of adolescents;

The 2nd direction is to improve the legislation of adolescents and guarantees of their rights;

The 3rd direction is the control over compliance with the legislation of legislative acts of state authorities.

Also, in connection with the development of information technologies, it is necessary to increase the effectiveness of the organization of supervision over the observance of the rights of minors.

For example, it is necessary to create automated information systems that would identify and make a forecast for offenses.