The Government of the Russian Federation 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 organization and implementation of public control over federal and regional executive authorities are widely studied in the works of D. I. Denisov, ^{[8, pp. 102-113]} M. V. Shcherbina, ^{[16, pp. 129-133]} V. V. Grib, ^{[6, pp. 3-8]} A. A. Grishkovets, ^{[7, pp. 370-384]} M. A. Mikhailina, ^{[13, pp. 78-85]} E. G. Dyakova, ^{[9, pp. 28-33]} as well as a number of other authors. However, of particular importance are studies devoted to the analysis of certain aspects of the organization and implementation of public control over the activities, acts and decisions of the Government of the Russian Federation. This circumstance determines the choice of the topic of this scientific research, the purpose of which is not only to identify and formalize the main problems that hinder the organization and implementation of public control over the Government of the Russian Federation, but also to develop and justify a system of measures to resolve them.

At the same time, the relevance and practical significance of this study is due to the central role and place of the Russian Government in the mechanism of public power in the Russian Federation, which requires a detailed constitutional and legal analysis of it as an object of public control.

The main text.

The existence of any democratic state, including the Russian Federation, presupposes the realization by citizens of a complex system of forms of direct and indirect democracy, the analysis of which is devoted to numerous studies in educational and scientific literature. ^{[14, pp. 74-78; 11, pp. 39-45]} At the same time, the constitutional principles of democracy and the participation of society in the management of state affairs need a system of legal guarantees that prevent, on the one hand, the usurpation of power, the misappropriation of authority by any public authorities, and on the other hand, their implementation is not in the interests of the majority of the population. In this system of legal guarantees, the most important role belongs directly to the institutions of civil society, thanks to the activities of which the above-mentioned constitutional principles acquire a real character. One of the main institutions of civil society that ensure the implementation, protection and protection of the above-mentioned constitutional principles is the Institute of Public Control in the Russian Federation.

Federal Law No. 212-FZ of July 21, 2014 "On the Fundamentals of Public Control in the Russian Federation" established the right of citizens, public associations and other non-governmental non-profit organizations to participate in organizing and exercising control over the activities of public authorities, state and municipal organizations, other bodies and organizations exercising certain public powers in accordance with federal laws.  

At the same time, the above-mentioned Federal Law did not fix the concept of an object of public control, its list, an exhaustive list of signs identifying it. Moreover, in article 2 of this Federal Law, a number of objects of public control were removed from the subject of its jurisdiction under the pretext of regulating the procedure for its implementation in relation to them by separate federal laws, a significant part of which was not adopted at the beginning of 2023. In addition, federal laws fixing the foundations of the legal status and powers of individual public authorities derived from the subject of Federal Law No. 212-FZ dated 21.07.2014 (for example, No. 390-FZ "On Security" dated 28.12.2010, No. 40-FZ "On the Federal Security Service" dated 03.04.1995, etc.) also do not they contain references to the possibility of exercising public control over these objects of public control.

In this regard, as a number of authors rightly point out, ^{[12, p. 11-19]} it is of great scientific interest and practical importance to conduct a constitutional and legal analysis of individual objects of public control in the Russian Federation in order to identify and formalize the main problems hindering the effective functioning of this institution of civil society in Russia, as well as the development and justification of a system of measures by their permission.

The most important object of public control in Russia is the executive authorities. ^{[1, pp. 469-477; 3, pp. 72-75]} Among them, the central place is occupied by the Government of the Russian Federation for a number of reasons: firstly, on the basis of Article 110 of the Constitution of Russia and Article 1 of Federal Constitutional Law No. 4-FKZ dated 06.11.2020 "On the Government of the Russian Federation", it exercises the executive power of the Russian Federation jointly with other federal executive authorities, being a public authority (at the same time, in the previously valid Federal Constitutional Law No. 2-FKZ dated 17.12.1997 "On the Government of the Russian Federation", it was positioned as a collegial body heading the unified system of executive power in the Russian Federation); secondly, it is endowed with the Basic Law of the country, the Federal Constitutional Law No. 4-FKZ of 06.11.2020 has a number of important powers, for example, in terms of developing and submitting the federal budget to the State Duma, as well as ensuring its execution; thirdly, it is one of the most numerous federal public authorities in terms of the number of civil servants; fourthly, the importance of the Russian Government is emphasized by the possibility of execution duties of the Head of State by the Chairman of the Government of the Russian Federation in cases stipulated by the Constitution of the Russian Federation.

However, the organization and implementation of public control over the activities, acts and decisions of the Government of the Russian Federation are associated with numerous problems, including the following:

Firstly, a significant problem hindering the organization and implementation of public control over the Government of the Russian Federation is the lack of consolidation of the institution of public control in the Constitution of Russia. There is a certain legal conflict, which consists in the fact that the subjects of public control (a legal institution not mentioned in the Basic Law of the country) must exercise control over the Government of the Russian Federation, to which a separate chapter of the Constitution of Russia and Federal Constitutional Law No. 4-FKZ of 06.11.2020 are devoted (at the same time, it does not say anything about the possibility of organizing and the implementation of public control measures against the Government of the Russian Federation). In this regard, D. I. Denisov rightly notes that the analysis of the legal structure and evaluation of the mechanism of public control over the activities of federal executive authorities, including the Government of the Russian Federation, shows the presence of "significant problems that confirm that the nature of the origin of public control is more a forced political decision than a well-functioning institution, which ensures the observance of human and civil rights and freedoms by executive authorities." ^{[8, pp. 102-113]}

It seems that in order to resolve the above-mentioned legal conflict, it is necessary to amend the Constitution of the Russian Federation in terms of fixing the institution of public control in it. At the same time, it is necessary to take into account the experience of consolidating the institution of people's control of power, which for several decades, as we justified in previously published works, ^{[4, pp. 169-186]} successfully functioned in the USSR (and the RSFSR as a union republic), in the constitutions of the USSR of 1977 and the RSFSR of 1978, in which the mechanism of interaction was described in detail people's control bodies with the entire system of public administration bodies. The Constitution of the Russian Federation should not only consolidate the concept of public control, but also the list of its objects, subjects, and the mechanism of their interaction with public authorities, primarily law enforcement agencies.

Secondly, a certain problem in the organization and implementation of public control measures, as noted above, is the lack of consolidation of the institution of public control in the legislation regulating the basis of the legal status and powers of the Government of the Russian Federation. An analysis of the Federal Constitutional Law No. 4-FKZ dated 06.11.2020 "On the Government of the Russian Federation" showed that it contains Article 20 on the mechanism of interaction between the Government of the country and civil society institutions. However, interaction in this article refers either to the provision of support measures to civil society institutions (including through their access to participation in the development and implementation of state policy measures), or direct interaction with individual religious organizations and public associations.

In this regard, it seems necessary to introduce amendments and additions to the above-mentioned Federal Constitutional Law in terms of fixing, on the one hand, the mechanism of public control over the activities, acts and decisions of the Government of the Russian Federation, and on the other hand, the system of duties of officials of this federal public authority for interaction with subjects of public control during the organization and conducting public control events.

Thirdly, a significant problem in the organization and implementation of public control over the Government of the Russian Federation is the lack of clarity as to which subjects of public control will organize and conduct its activities.

To date, only the Public Chamber of the Russian Federation has sufficient organizational, financial, technical and human resources to organize and conduct public control events.

It seems that there is a need to create a Public Council under the Government of the Russian Federation, whose duties should be attributed to the organization and implementation of appropriate measures of public control over the activities, acts and decisions of the Government of the country. Moreover, the creation of such a variety of subjects of public control is provided for in Article 9 of Federal Law No. 212-FZ dated 21.09.2014 "On the Basics of public Control in the Russian Federation".

In addition, a number of scientists criticize the activities of public councils under federal executive authorities in general. In their opinion, "in the process of adaptation on the domestic soil, this neoliberal model was crossed with the Soviet model of supervision over the activities of the authorities as a form of civic participation, which formed the model of public councils as subjects of public control. At the same time, ... members of public councils see themselves not as experts (in accordance with the global regulatory model) and not as subjects of public control, but as intermediaries between the government and the people, whose function is to bring complaints and concerns of ordinary citizens to the authorities, that is, they are focused on the traditional model of the relationship between government and society." ^{[9, pp. 180-201]} Other authors note the fact that the main emphasis in their activities of public councils under federal executive authorities is on the social expertise of the adopted normative legal acts, as well as their implementation. ^{[16, pp. 129-133]}

It seems that the small activity of the above-mentioned public councils is mainly due to the order of their formation, in which the appointment of members of the public council is carried out within the framework of the federal executive authority itself.

In this regard, it seems necessary to consolidate the possibility of creating a Public Council under the Government of the Russian Federation in Federal Constitutional Law No. 4-FKZ dated 06.11.2020. The Regulation on this subject of public control should provide for such a procedure for its formation, in which candidates for members of the council will be submitted by All-Russian public associations and non-governmental non-profit organizations to the competition committee formed by the Public Chamber of the Russian Federation. According to the results of the competition, the members of this Public Council must be approved by an order of the Government of the Russian Federation.

Fourth, a significant problem hindering the organization of public control over the Government of the Russian Federation is the weak development in the scientific legal doctrine of constitutional law of specific methods, principles, forms and types of public control measures that should be used in the implementation of this institution of civil society in relation to the Government of the country. In the scientific literature, an attempt is made, as a rule, to analyze the possibilities of applying existing forms and methods of public control provided for by Federal Law No. 212-FZ of 21.07.2014 in relation to this object of public control. ^{[2, pp. 91-99]}

Fifthly, a certain problem in the organization and implementation of public control measures against the Government of the Russian Federation, as we have already noted in previously published studies, ^{[5, pp. 76-79]} is the weak use of modern digital technologies in these processes. Thus, a number of authors note the need for more active use of the experience of the European Union in terms of monitoring the development of e-government by civil society institutions (and summarizing its results) in order to increase the role of civil society in the mechanism of improving public administration processes, which will allow "transforming the concept of "good governance" into the concept of "joint public ^{[15, pp. 525-537]} At the same time, the activities of subjects of public control will also act as one of the forms of indirect participation of society in the management of state affairs. In addition, the Government of the Russian Federation should be obliged to hold public public hearings on the most important socio-economic reforms carried out by it, with the invitation of representatives of a wide range of representatives not only of subjects of public control, but also of public associations and other non-governmental non-profit organizations.

Sixth, a certain problem in carrying out public control measures against the Government of the Russian Federation is the lack of consolidation in criminal and administrative legislation of measures of criminal and administrative responsibility of officials of executive authorities for countering the legitimate activities of representatives of subjects of public control, for example, expressed in hiding the requested information, not providing it, or providing it to in a distorted form, the non-admission of representatives of public control to the territory of executive authorities for the organization and conduct of public control events, the use of illegal measures of influence on these representatives in order to prevent the conduct of these public control events, etc. actions.

In this regard, it seems necessary to supplement the Criminal Code of the Russian Federation, as well as the Code of Administrative Offences of the Russian Federation, with provisions providing for measures of criminal and administrative liability to persons guilty of countering the implementation by representatives of subjects of public control of legal actions for the organization and conduct of public control measures in relation to objects of public control. At the same time, the use by officials of public authorities of their official position to commit the above-mentioned actions should be qualified with the use of more serious measures of legal responsibility.

Conclusion.

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

1. The activities, acts and decisions of the Government of the Russian Federation 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 permanent 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 the Government of the Russian Federation as the most important federal public authority institutionalized in the Basic Law of the country.

3. Federal Constitutional Law No. 4-FKZ dated 06.11.2020 "On the Government of 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 the Government of the Russian Federation.

4. The list of subjects of public control that can organize and conduct public control measures in relation to the Government of the Russian Federation requires clarification.

5. Due to the fact that the legislation of the Russian Federation does not contain a mechanism for bringing to legal responsibility members of the Government of the Russian Federation, as well as its other officials, for countering the legitimate activities of subjects of public control in the organization and conduct of public control measures in relation to the activities, acts and decisions of this public authority, it is necessary to develop and to fix in the current criminal and administrative legislation the measures of responsibility of civil servants (including members of the Government of the Russian Federation, as well as other officials thereof) for the above-mentioned counteraction.

For example, the Criminal Code of the Russian Federation should be supplemented with Article 149.1 "Obstruction of the legitimate activities of representatives of subjects of public control", which should provide for criminal penalties for perpetrators up to correctional labor for up to one year for obstructing the legitimate activities of subjects of public control by forcing them to refuse to carry out this activity. If these acts are committed by a person using his official position, then it is necessary to provide for a more severe punishment (up to two years of imprisonment) with deprivation of the right to hold certain positions or engage in a certain type of activity (or without it). The above-mentioned acts connected with violence against a representative of the subject of public control, his relatives, or with damage or destruction of their property, as well as with the threat of such violence, should be punished with imprisonment up to six years with deprivation of the right to hold certain positions or engage in a certain type of activity (or without it). If these acts were committed by an organized group, or against members of the Public Chamber of the Russian Federation, public chambers of the subjects of the Russian Federation, as well as public chambers (councils) of municipalities, then as a measure of criminal punishment, imprisonment up to ten years with deprivation of the right to hold certain positions or engage in a certain type of activity (or without one).

In turn, the Code of Administrative Offences of the Russian Federation should be supplemented with Article 5.70 "Violation of the legislation on public control of the Russian Federation". This article should provide for administrative and legal responsibility of officials of public authorities, as well as other objects of public control, for refusing to provide subjects of public control with information necessary for public control, as well as for preventing representatives of subjects of public control from visiting relevant objects of public control (in cases where this is provided for by the legislation on public control control).