On the Problems and Prospects of Development of the Institute of Public Councils under Federal Executive Authorities: 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

In the Russian scientific and educational literature, the problems of the organization and activity of subjects of public control are widely studied in the works of V. V. Grib, ^{[5, pp. 3-13]} G. N. Chebotarev, ^{[19, pp. 62-65]} N. S. Rybolovleva, ^{[15, pp. 50-52]} A. I. Lapshina, ^{[11, pp. 136-140]} T. Y. Khabrieva, ^{[18, p. 5-10]} S. A. Avakyan, ^{[1, p. 3-17]} and many other authors.

In turn, the works of E. A. Abayeva and M. A. Lipchanskaya, ^{[13, p. 25-29]} A.V. Gavrilova, ^{[3, p. 133-137]} A. A. Grishkovets, ^{[7, p. 3]} E. G. Dyakova, ^[8] are devoted to certain aspects of the organization and functioning of public councils under federal and regional executive authorities, pp. 180-201] A.V. Lipuntsova, ^{[12, pp. 45-47]} E. V. Matveeva and I. Y. Sitdikova, ^[14] E. S. Selivanova, ^{[16, pp. 123-133]} V. V., Starchikova, ^[17] and a number of other authors. The works of these scientists allow us to investigate the advantages and disadvantages of the processes of organizing and implementing public control measures for certain types of executive authorities at the federal and regional levels by various subjects of public control, primarily public councils under these public authorities.

The legislation on public control provided for the possibility of creating public councils under federal and regional state authorities. The state mechanism in the Russian Federation is mainly represented by the executive authorities – the most numerous branch of government. At the same time, federal executive authorities and executive authorities of the subjects of the Russian Federation, in accordance with the provisions of the Constitution of the country, constitute a single system of executive power headed by the Government of the Russian Federation. In this regard, it is of particular interest to conduct a constitutional and legal analysis of the problems of the organization and activities of public councils under federal executive authorities. Moreover, Federal Law No. 212-FZ of 21.07.2014 "On the Fundamentals of Public Control in the Russian Federation" in Article 9 provided for the creation of public councils only under federal executive authorities, without mentioning the possibility of their formation under the Federal Assembly of the Russian Federation (as a federal body of legislative (representative) power), as well as under federal judicial authorities in the country.

The object of this study is public relations arising in the process of organizing and operating public councils under federal executive authorities in Russia. The subject of the study is a set of legal norms regulating these relations, as well as the Russian legal doctrine of public control. The purpose of the study is not only to formalize and study the main problems that hinder the organization and activities of public councils under federal executive authorities, but also to develop and justify a system of measures to resolve them, including proposals to improve the current legislation.

Achieving this research goal involves solving a number of research tasks, among which the following can be distinguished: 1) substantiation of the importance of the institute of public control as the most important legal guarantee for the implementation, protection and protection of the constitutional principles of democracy and public participation in the management of state affairs; 2) analysis of the system of subjects of public control in the Russian Federation, as well as the place of public councils under federal executive authorities in it; 3) study of the mechanism of creation and activity of this variety subjects of public control, as well as the author's classification of their powers; 4) identification and formalization of the main problems that hinder the organization and functioning of public councils under federal executive authorities; 5) development and justification of a system of measures to resolve these problems, including proposals to improve the current legislation, which will ensure further development as a specified variety of subjects public control, and in general, this institution of civil society.

It seems that the topic of scientific research chosen by us has great relevance and practical significance, since it allows not only to formalize the most typical modern problems that hinder the organization and functioning of public councils under federal executive authorities, but also to develop and justify a system of proposals for their resolution in order to ensure the overall development of this institution of civil society (as well as the above-mentioned variety of subjects of public control in particular).

The Constitution of the Russian Federation has consolidated the legal status of the multinational people of Russia as the bearer of sovereignty and the only source of power in the country, which exercises its powers both directly (in particular, through the institutions of free elections and referendums) and indirectly (for example, through the activities of state authorities, local self-government bodies, as well as their officials).. 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 ensure their implementation, protection and protection, among which one can distinguish, in particular: 1) the constitutional prohibition on the seizure of power and the misappropriation of authority under the threat of bringing the perpetrators to justice on the basis of federal laws; 2) the mechanism of checks and balances that permeates the entire apparatus of public power and minimizes the risks of usurpation of power in the hands of any public authority or its official; 3) the system of bodies of constitutional the most important elements of which are the Constitutional Court of the Russian Federation (as a federal body of constitutional justice), as well as the President of the Russian Federation (as a guarantor of the Constitution of Russia, human and civil rights and freedoms in the country); 4) a system of civil society institutions, the most important of which is the institute of public control.

This institution of civil society allows citizens of the Russian Federation, public associations, and other non-governmental non-profit organizations to participate in monitoring the activities, acts and decisions of public authorities, state and municipal organizations, and other bodies and organizations endowed by federal laws with the rights to exercise certain public powers.

The most important element of the institution of public control are its subjects. The list of subjects of public control is fixed in Article 9 of Federal Law No. 212-FZ dated 21.07.2014 "On the Basics of Public Control in the Russian Federation". However, it is not entirely clear from this article whether the legislator refers to the category of subjects of public control the organizational structures of public control (public monitoring commissions, public inspections, public control groups, as well as other organizational structures of public control, the list of which is left open) mentioned in part 2 of this article, or the subjects of public control are only 4 of their varieties, fixed in part 1 of this article. In our opinion, it is necessary to amend Article 9 of the above-mentioned Federal Law by conducting a more detailed classification of subjects of public control, for example, dividing them into permanent subjects of public control (referring to them the subjects mentioned in part 1 of this article), as well as those created in accordance with regulatory legal acts for a certain period (these include the organizational structures of public control mentioned in part 2 of this article, leaving the list of these structures open).

Public councils under federal executive authorities occupy a special place in the system of subjects of public control: 1) they are one of the most numerous subjects of public control; 2) they have the ability to organize and conduct public control measures not only in relation to the activities, acts and decisions of these federal executive authorities, but also their territorial divisions, regional executive authorities, as well as other objects of public control in this area of public administration; 3) these subjects of public control include the most experienced specialists, experts in these areas of public administration in the country.

Federal Law No. 212-FZ of 21.07.2014 established the legal basis for the mechanism of formation of public councils under federal executive authorities. So, in part 5 of Article 13 of this Federal Law, the priority competitive procedure for their creation is fixed (under the leadership of the Public Chamber of Russia, which, together with the relevant public authorities, is developing a system of requirements for candidates for the above-mentioned public councils).

At the same time, the composition of the above-mentioned public councils, although approved by the head of the relevant federal executive authority, must be coordinated with the Council of the Public Chamber of the Russian Federation (at the same time, the chairman of the public Council is elected from among its members at a meeting of the public council).

The analysis of normative legal acts of federal executive authorities fixing the mechanism of creation of public councils under them shows that when issuing these normative legal acts, the above-mentioned public authorities were guided by the Decree of the Government of the Russian Federation No. 481 of 02.08.2005, except for those of them, which are managed by the President of the Russian Federation (for example, the Federal Security Service).

For example, the Federal Agency for Railway Transport in its Order No. 378 dated 19.10.2018 (as amended. dated 07/22/2021), dedicated to the approval of the public council at the agency, duplicated and detailed the provisions on the establishment of public councils at federal executive authorities specified in the above-mentioned decree of the Government of the Russian Federation, as well as Article 13 of Federal Law No. 212-FZ dated 07/21/2014.

In turn, federal ministries, services and agencies subordinate to the Head of state are guided in the development and adoption of departmental normative legal acts on public councils by Decree of the President of the Russian Federation No. 842 of 04.08.2006. At the same time, the analysis of these normative legal acts showed that these federal executive authorities are more free to choose members of public councils.

Thus, the Public Council under the Ministry of Defense of the Russian Federation (according to Section III of the Order of the Minister of Defense of the Russian Federation dated 16.11.2006 No. 490 "On the formation of the Public Council under the Ministry of Defense of the Russian Federation") is formed by the Deputy Minister of Defense and the Chief of Staff of the Minister of Defense based on the results of consultations with public associations, associations of non-profit organizations, as well as the Public Chamber of the Russian Federation Federation, and then approved by the Minister of Defense. In part, this is due to the fact that the activities of the above-mentioned federal executive authorities are associated with state and other legally protected secrets. In addition, the nature of this activity imposes additional requirements on the professionalism, business reputation, moral and ethical appearance of members of such public councils.

Federal Law No. 212-FZ of 21.07.2014 did not fix special powers for public councils under federal executive authorities. General powers for all types of subjects of public control are fixed in article 10 of this Federal Law.

In more detail, the powers of public councils under federal executive authorities are enshrined in the normative legal acts adopted by these public authorities on the organization and activities of this type of subjects of public control.

Analysis of regulatory legal acts regulating the organization and activities of public councils under federal executive authorities has shown that their functions can be classified into a number of groups: 1) on the organization and conduct of public control measures (as a rule, public expertise of both areas of activity and draft regulatory legal acts in a specific area of public administration); 2) consulting and advisory; 3) research; 4) information and educational; 5) promotion and support of civil initiatives in a specific area of public administration; 6) public relations; 7) educational.

However, as a number of authors rightly point out, the organization and activities of public councils under federal executive authorities are associated with numerous problems of an objective and subjective nature, ^{[9, pp. 32-39; 6, pp. 370-384]} which require the development of a system of measures to resolve them, including proposals to improve federal legislation on public control. Among the above - mentioned problems are the following:

Firstly, the fact that the mechanism of their formation does not involve the selection of members to these public councils exclusively by public associations, as well as non-governmental non-profit organizations, is a certain problem that levels the public character of public councils under federal executive authorities. At best, they nominate candidates for these public councils, but the decision is made by the heads of these federal executive bodies. At the same time, in most ministries, services and agencies of the so-called "power bloc", their leaders (and often just responsible officials) are limited only by the need to consult with the above-mentioned non-profit non-governmental organizations (for example, when forming a public council under the Ministry of Defense of the Russian Federation). This gives rise to disputes in the Russian scientific literature regarding the legal status and legal nature of public councils under federal executive authorities. ^{[10, pp. 24-31]}

Secondly, a significant problem in the organization and activities of public councils under federal executive authorities is the lack of real powers for these subjects of public control to suppress, prevent and prevent violations by officials of federal executive authorities of the rights and freedoms of citizens of the Russian Federation, as well as the rights and legitimate interests of public associations and other non-governmental non-profit organizations, in contrast, for example, to the people's control bodies in the RSFSR, which had a number of real powers, for example, provided for in Article 22 of the USSR Law No. 1159-X of 11/30/1979 "On People's Control in the USSR", as we indicated in earlier studies. ^{[4, pp. 169-185]}

Thirdly, in our opinion, the powers of these subjects of public control provided for in a number of normative legal acts on public councils under federal executive authorities, which can be relatively conditionally attributed to public control, are also debatable. For example, these are the powers provided for in paragraphs 5.3 and 5.7 of the Order of the Minister of Internal Affairs of the Russian Federation No. 812 dated 13.09.2001 "On the Public Council under the Ministry of Internal Affairs of the Russian Federation" (to strengthen the Ministry's ties with the media, to participate in scientific research in the field of state and law).

Fourth, a certain problem in the organization and activity of public councils under federal executive authorities is the lack of consolidation in Federal Law No. 212-FZ of 21.07.2014 of provisions on the possibility of creating public councils under territorial divisions of these public authorities. This creates, according to a number of authors, certain problems in the organization and activities of these public councils. ^{[2, pp. 88-91]}

It seems that in order to resolve the above-mentioned problems, the following measures should be carried out:

Firstly, it seems necessary to exclude in part 5 of Article 13 of Federal Law No. 212-FZ dated 21.07.2014 "On the basics of public Control in the Russian Federation" the words "if a different procedure for the formation of public councils under certain federal executive bodies is not provided for by regulatory legal acts of the President of the Russian Federation or the Government of the Russian Federation", thus obliging thus, to form all public councils under federal executive authorities on a competitive basis, where the Public Chamber of the Russian Federation will act as the organizer of the competition. The implementation of this proposal will increase the legitimacy and social significance of these subjects of public control in the eyes of the people.

Secondly, it seems necessary to expand the list of powers of subjects of public control in Federal Law No. 212-FZ dated 21.07.2014 "On the basics of public control in the Russian Federation", giving them a number of real powers, for example, to temporarily remove from office officials who have committed or are committing crimes that violate the rights and freedoms of citizens of the Russian Federation, as well as the rights and legitimate interests of public associations and other non-governmental non-profit organizations (until the relevant law enforcement agencies, as well as higher-ranking officials, resolve this issue on its merits).

Thirdly, it is necessary to amend the normative legal acts on public councils under federal executive authorities, for example, the order of the Minister of Internal Affairs of the Russian Federation dated 13.09.2001 No. 812 "On the Public Council under the Ministry of Internal Affairs of the Russian Federation", clarifying and detailing the relevant powers of these subjects of public control, excluding from their composition the powers, not related to public control.

Fourth, it is necessary to supplement Article 13 of Federal Law No. 212-FZ of 21.07.2014 with provisions providing for the possibility of creating public councils under the territorial divisions of these public authorities.

This will allow: to give a new dynamic in the development of public councils under federal executive authorities; to exercise full control over the activities, acts and decisions of the above-mentioned variety of public authorities to these subjects of public control.