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

The Constitution of the Russian Federation has consolidated the legal status of the multinational people of Russia as the bearer of state sovereignty and the only source of power in the country, exercising its powers through a complex system of direct and indirect forms of democracy. 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 for their implementation, protection and protection.

In the list of such legal guarantees, it should be noted, firstly, the prohibition specified in the Basic Law of the State that any public authorities could usurp power or seize powers belonging to other public authorities or local self-government, and secondly, the system of checks and balances in the apparatus of public power, thanks to in which each branch of state power and local self-government balance each other, preventing a significant concentration of power, thirdly, the system of institutions of constitutional control, the core of which is the head of state, who is the guarantor of the Constitution of the country, as well as human and civil rights and freedoms, as well as the Constitutional Court of the Russian Federation, which carries out constitutional justice in the country whose role has especially increased in connection with the abolition of the institution of constitutional (statutory) courts of the subjects of the Russian Federation; fourth, the system of civil society institutions, the level of development of which directly indicates the degree of democracy of the mechanism of public power in the state.

The most important of the institutions of civil society is the institute of public control, through the functioning of which individuals, as well as non-commercial non-governmental legal entities, are able to exercise control over both the activities and the regulatory legal acts adopted (issued), other decisions of both public authorities and legal entities created by the state and local self-government bodies, other legal entities that exercise certain public powers on the basis of federal laws.

The organization and functioning of the institute of public control in the Russian Federation are associated with numerous problems due to the fact that this institution of civil society was enshrined in the legislation of the country relatively recently, although, as we noted in previously published works, it borrowed a lot from the Institute of people's control of power that previously existed in the USSR (and the RSFSR – as a union republic). ^{[2, pp. 72-75]} At the same time, the institute of people's control of power, enshrined in the constitutions of the USSR of 1977 and the RSFSR of 1978, was incorporated into all levels of the mechanism of public administration in the country. In these constitutions, it was positioned as an instrument of people's control over the authorities, as well as any enterprises, institutions and organizations, in terms of ensuring compliance with the current legislation by the latter, as well as the rights and freedoms of the country's workers.

One of the above problems is that the system of objects of public control has not been institutionalized at the federal level, and the definition of the concept of the object of public control itself is not mentioned in regulatory legal acts. At the same time, the Federal Law of 21.07.2014, although formally devoted to the basics of public control, excluded a significant part of its objects from its subject matter under the pretext that it is more expedient to regulate the mechanism of organizing and conducting public control events in separate laws. At the same time, for nine years the legislator has not adopted separate federal laws on this subject of legal regulation.

Moreover, federal laws that establish the legal basis for the organization and activities of subjects of public control derived from the subject of the above-mentioned Federal Law, for example, dedicated to the FSB, as well as the organization of security in the country as a whole, do not contain any information about the possibility, limits and mechanism of organization and implementation of public control measures in relation to these objects. This circumstance hinders the organization and conduct of public control measures in relation to these objects. Moreover, most of them have a significant amount of power, affecting most of the rights, freedoms and legitimate interests of both citizens of the Russian Federation and foreign citizens, as well as stateless persons.

Our analysis of the practice of implementing the above-mentioned institute of civil society has shown that in relation to a number of objects of public control that are not removed from the subject of Federal Law No. 212-FZ of 21.07.2014 (for example, the President of the Russian Federation, public authorities that ensure the activities of the head of state, judicial authorities, prosecutors and investigators), the organization and the implementation of public control measures is difficult, or is not carried out. ^{[3, pp. 159-160]}

In this regard, within the framework of this scientific work, it is necessary to analyze the existing problems and existing opportunities for the implementation of the institute of public control in relation to the Administration of the President of the Russian Federation.

Historically, this federal public authority has considerable authority in the eyes of officials of public authorities, as well as the citizens of Russia themselves. This is partly due to the fact that during the confrontation of the first President of the Russian Federation with the Supreme Council of the Russian Federation in the period before its dissolution by Decree of the Head of state, the President had to rely on the Presidential Administration as an instrument of operational control over the implementation of normative legal acts issued by the head of state. Moreover, during the presidential rule of Boris Yeltsin, the so-called legal phenomenon of "decree law" developed, when the head of state was forced to regulate a number of areas of socio-economic development by by-laws, due to the fact that the federal parliament was unable to adopt the relevant laws, or their content contradicted the policy of economic reforms., implemented by the President of the Russian Federation.

In addition, thanks to the activities of the Presidential Administration of the Russian Federation, it was possible to centralize the system of public administration in the country, to put an end to the "parade of sovereignties", which was a consequence of the collapse of the USSR and the centrifugal tendencies generated by it in Russia itself.

Analysis of Article 4 of Federal Law No. 212-FZ dated 21.07.2014 "On the Basics of Public Control in the Russian Federation" shows that the activities, acts and decisions of the Presidential Administration of the Russian Federation are included in its subject matter, since it (according to the Decree of the President of the Russian Federation dated 06.04.2004 No. 490 "On Approval of the Regulations on the Presidential Administration of the Russian Federation") is a state body formed on the basis of paragraph "i" of Article 83 of the Constitution of the Russian Federation to ensure the activities of the head of state and monitor the implementation of his decisions.

And, if there is an extensive discussion in the Russian scientific and educational literature about the possibility and limits of public control over the institute of the President of the Russian Federation, ^{[4, pp. 34-36; 5, pp. 30-45; 9, pp. 78-85]} then about the possibility of carrying out public control measures in relation to the activities, acts and decisions of the Administration of the head of state the authors agree that it is unacceptable to extend the immunity or legal status belonging to the President of the country as a guarantor of the Constitution of Russia to public authorities that ensure his activities ^{[7, pp. 241-244; 11, pp. 185-197]} (therefore, there are no obstacles and restrictions for the control of civil society over them).

Although, as the above-mentioned studies have shown, in the Russian Federation there is a practice of extending the immunity of the head of state to the organization and activities of federal public authorities that ensure his activities (including judicial authorities).

At the same time, the formation and functioning of the institute of public control in relation to the activities, decisions and regulatory acts of the Presidential Administration of the Russian Federation are caused by a significant number of problems, among which we can note the following:

Firstly, a certain problem in carrying out public control measures against the Administration of the President of the Russian Federation is the fact that the institution of public control is not enshrined in the Constitution of Russia, which significantly reduces its authority and significance in the eyes of officials of public authorities in the country. In addition, there is a certain conflict regarding the fact that the subjects of public control – an institution not mentioned in the Basic Law of the country, exercise public control over the constitutionally enshrined (in Article 83) public authority - the Administration of the President of the Russian Federation. This unfavorably distinguishes the institute of public control in the Russian Federation from the institute of people's control of power, which was, as noted earlier, institutionalized in the Constitution of the USSR of 1977 and the Constitution of the RSFSR of 1978. At the same time, these constitutions fixed the mechanism of interaction of the people's control bodies with the state administration bodies, their mutual responsibility.

In this regard, it seems necessary to consolidate the institution of public control in the Constitution of the Russian Federation, defining in it its concept, the mechanism of organization and implementation, as well as interaction with public authorities, a list of subjects and objects, or signs by which they can be identified, principles, forms, methods and types of public control measures.

This will, on the one hand, ensure an increase in the legal status of both the institution of public control itself and its subjects, and on the other hand, minimizes the risks of public authorities' opposition to the implementation by representatives of subjects of public control of legitimate activities for the organization and conduct of public control events.

Secondly, a major problem that creates obstacles in the implementation of the institute of public control in relation to the work, decisions and regulatory legal acts issued by the Presidential Administration of the Russian Federation is the lack of consolidation of the institute of public control in the regulatory legal acts of the head of state defining the procedure for the creation, activities and powers of this federal public authority, in particular in the above-mentioned Decree of the President of the Russian Federation dated 06.04.2004 No. 490.

Thus, there is no mechanism for interaction between subjects of public control and the Administration of the Head of state, both in terms of mutual provision of information and public control activities.

In this regard, it is necessary to introduce into the normative legal acts defining the procedure for the creation, activities and powers of the Presidential Administration of the Russian Federation provisions that fix the possibility, procedure and limits of the organization and implementation of public control measures.

Thirdly, a significant problem that complicates the organization and implementation of public control measures in relation to the Administration of the head of State is the lack of a common understanding of what the list of subjects of public control can carry out these activities.

It seems that the largest and most significant subject of public control in the country - the Public Chamber of the Russian Federation - has the necessary organizational, technical, and material resources for organizing and conducting public control measures in relation to federal public authorities that ensure the activities of the head of state and monitor the execution of his decisions.

However, the Presidential Administration in its structure has presidential plenipotentiaries in the federal districts, in addition, other officials (for example, those who are part of the apparatus of the above–mentioned plenipotentiaries), who are located geographically outside Moscow in various cities of Russia (for example, in regional centers - in place of the previously functioning plenipotentiaries of the head of state in the subjects Of the Russian Federation). Thus, it would be advisable to organize and conduct public control measures in relation to these officials by the forces of other subjects of public control, in particular, the public chambers of the subjects of the Russian Federation.

Fourth, there are doubts about the specifics of the formation of the Public Chamber of the Russian Federation itself, which potentially acts as the main subject of public control, having the capacity to organize and implement public control measures against the Administration of the President of the Russian Federation, since forty of its members (almost a quarter of the total composition) on the basis of Federal Law No. 04.04.2005 32-FZ "On the Public Chamber of the Russian Federation" is appointed by the head of state himself.

50% of the membership of the Public Chamber of the Russian Federation is represented by members of regional public chambers (elected by the latter at their meetings), which are formed by regional public authorities. In particular, in accordance with Article 7 of the Law of the Krasnodar Territory dated 03.03.2017 No. 3575-KZ "On the Public Chamber of the Krasnodar Territory and on Amendments to Certain Legislative Acts of the Krasnodar Territory", a third of the 45 members of the Public Chamber of the Krasnodar Territory are appointed by the head of the Administration (Governor) of the Krasnodar Territory, a third – by the Legislative Assembly of the Krasnodar Territory, and more a third – by the aforementioned two-thirds of the members.

In this regard, it seems necessary to change the order of formation of subjects of public control in such a way that their members are elected directly by the people, and not formed by public authorities, as well as their officials, which, in our opinion, does not allow them to be considered public.

For example, the Public Chamber of the Russian Federation should be formed entirely according to the rules provided for in paragraphs 8-13 of Article 8 of Federal Law No. 32-FZ of 04.04.2005 "On the Public Chamber of the Russian Federation" for the election of 43 of its members.

Similarly, it is necessary to change the procedure for the formation of public chambers of the subjects of the Russian Federation and public chambers (councils) of municipalities, whose members should be chosen by voters who have reached the age of 18 by voting on the website of "Public Services" from the list of candidates who are nominated, in particular, by public associations or other non-profit non-governmental organizations, in addition, associations of citizens numbering at least 0.1% of their number living in the territory of a particular region of the Russian Federation or municipality (for persons who do not have access to the Internet or skills to use it, appropriate terminals in multifunctional centers should be equipped). The formation of the Public Chamber of the Russian Federation without the direct participation of any public authorities, in our opinion, on the one hand, will increase its authority and importance in the eyes of the people, giving legitimacy to its decisions, and on the other hand, will allow the Public Chamber of the country to rely on the opinion of ordinary voters in the organization and conduct of certain events public control (especially in relation to federal public authorities).

Fifthly, a certain problem hindering the organization and implementation of public control measures in relation to the activities, acts and decisions of the Presidential Administration of the Russian Federation is the absence in the national scientific doctrine of public control of the development of specific techniques, principles, methods, forms, types of the above-mentioned public control measures, which requires further scientific research in this area. At the same time, the basis for such developments can be scientific works devoted to both the organization and implementation of public control in general in relation to the activities, acts and decisions of executive authorities, ^{[1, pp. 469-477; 6, pp. 135-137; 8, pp. 67-73]} and the evaluation of the effectiveness of these public authorities. ^{[10, pp. 68-76]}

Sixth, a significant problem that creates difficulties in carrying out public control measures against the Administration of the head of state is the lack of consolidation in the current criminal and administrative legislation of measures of responsibility of officials of public authorities (including those who ensure the activities of the President of the country and control the execution of his decisions) for activities to counter the legitimate activities of subjects public control in the Russian Federation. In this regard, the Criminal Code of the Russian Federation, the Code of Administrative Offences of the Russian Federation should be supplemented with articles containing measures of criminal and administrative responsibility for countering the legitimate activities of subjects of public control.

Seventh, certain difficulties in organizing public control over the activities, acts and decisions of the Administration of the President of the Russian Federation, as well as other federal public authorities that ensure the activities of the head of state and control the execution of his decisions, are extremely closed, not public, lack of publicity in the work of these authorities.

In this regard, on the one hand, it is necessary to ensure greater transparency and openness in the activities of the Administration of the head of state, and on the other hand, the mechanism of its interaction with subjects of public control through modern digital technologies. For example, by organizing public hearings and discussions of draft regulatory legal acts online with the participation of both representatives of subjects of public control and any interested citizens of the Russian Federation, public associations, as well as other non-governmental non-profit organizations. Due to the fact that the Administration of the Head of state participates, in fact, in the development of any draft federal laws concerning all sectors of the Russian economy, as well as the public life of the state, holding the above-mentioned public hearings and discussions will, on the one hand, minimize the risks of adoption of regulatory legal acts by the head of state and federal public authorities, to ensure its activities, which would violate the rights, freedoms and legitimate interests of Russian citizens, and on the other hand, to increase the authority, significance and legitimacy of both the institution of the President of the Russian Federation and the public authorities associated with it.

In addition, it will allow civil society institutions not only to organize and conduct public control events, but also to evaluate the effectiveness and efficiency of the activities of the Presidential Administration of Russia.

The resolution of these problems will allow not only to ensure the organization and implementation of public control measures regarding the activities, acts and decisions of the Presidential Administration of the Russian Federation, but also to optimize this institution of civil society in the country as a whole, which is of particular interest and practical importance in the conditions of increasing pressure on Russia from foreign states. After all, the stability of the Russian state, society and the very apparatus of public power in the country directly depends on the level of legitimacy of the mechanism of public power in the eyes of the people.