Legality as a principle of public control in the Russian Federation

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 issues of consolidation and implementation of the system of principles of public control in the Russian Federation are widely studied in the works of V. V. Grib, ^{[4, pp. 3-13]} E. V. Berdnikova, ^[1] V. S. Byalt, ^{[2, pp. 101-103]} A. I. Zemlin, ^{[5, pp. 34-40]} M. A. Kilesso, ^{[8, p. 24-30]} A. A. Klishasa, ^{[9, pp. 47-55]} T. N. Mikheeva, ^{[11, pp. 58-65]} O. A. Okolesnova, ^{[12, pp. 64-77]} O. G. Savitskaya, ^{[14, pp. 43-46]} I. V., Teplyashina, ^{[16, pp. 39-44]} as well as a number of other authors. However, the proportion of works devoted to the study of individual principles of public control is relatively small, which requires a more detailed analysis of the practice of consolidating and implementing each of these principles in relation to the organization and activities of, in particular, certain subjects of public control, and to their entire system. This is the reason for the choice of the topic of this scientific research, the purpose of which is not only to analyze the concept and content of legality as a principle of public control, but also to formalize the main problems associated with the consolidation and implementation of this principle, with the subsequent development of a system of measures to resolve them.

The main text.

The Russian Constitution of 1993 established the legal status of the multinational people of the Russian Federation as the bearer of sovereignty and the sole source of power in the country, exercising their powers both directly (in particular, through the institutions of free elections and referendums) and indirectly (for example, through the activities of public authorities). 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 through which their consolidation, implementation, protection and protection from violations are ensured. The most important place in this system of guarantees is occupied by the institute of public control, through which citizens of the Russian Federation, public associations, as well as other non-governmental non-profit organizations, exercise control over the activities, acts and decisions of public authorities, state and municipal organizations, other bodies and organizations that are endowed by federal laws with the right to exercise certain public powers.

The legal regulation of the institute of public control in the Russian Federation is based on a set of principles – the basic, most general principles that determine the content and main directions of regulation of this institution of civil society in the Russian Federation.

Due to the fact that according to Article 2 of Federal Law No. 212-FZ dated 21.07.2014 "On the Fundamentals of Public Control in the Russian Federation", the legal basis of public control is not only federal laws and other regulatory legal acts of Russia, but also the norms of regional legislation, as well as relevant regulatory legal acts of local self-government bodies, then, accordingly, the principles of public control can be formalized at all levels of the legal system of the Russian Federation.

At the federal level, the principles of public control are enshrined, in particular, in Article 6 of Federal Law No. 212-FZ of 21.07.2014. The most important of the principles of public control listed in this article is the principle of legality of the activities of subjects of public control, which, as a number of authors rightly point out, acts as the basis of Russian civil society. ^{[6, pp. 7-10]}

The above-mentioned article does not formalize the concept of legality as a principle of public control and does not detail its content. However, an analysis of article 10 of this Federal Law, devoted to the formalization of the rights and obligations of subjects of public control, shows that their activities are strictly limited by the limits defined in the legislation on public control: firstly, this activity is carried out only in the forms and in the manner prescribed by federal laws; secondly, visits to objects of public control representatives of subjects of public control are carried out exclusively in cases and in accordance with the procedure provided for by federal and regional legislation on public control, as well as relevant municipal regulatory legal acts; thirdly, subjects of public control are required to comply with restrictions related to the activities of public authorities; fourth, they are not assigned a certain circle obligations stipulated by federal legislation.

What should be understood by legality as a principle of public control in the Russian Federation?

Firstly, legality in this case is a special political and legal regime within which the activities of subjects of public control are carried out, which consists in the duties of all subjects of law (subjects of public control, public authorities, state and municipal organizations, other bodies and organizations whose activities, acts and decisions are objects of public control control, etc.) be guided by the norms of the current legislation when organizing and implementing public control measures.

Secondly, legality in the activities of subjects of public control in the Russian Federation presupposes a strict hierarchy of normative legal acts through which the legal regulation of the organization and functioning of these subjects is carried out.

At the same time, the top in the system of normative legal acts devoted to the organization and functioning of the system of public control in Russia are federal Laws No. 32-FZ dated 04.04.2005 "On the Public Chamber of the Russian Federation"; No. 76-FZ dated 10.06.2008 "On Public Control over ensuring human rights in Places of forced Detention and on assistance to persons those who are in places of forced detention", dated 21.07.2014 No. 212-FZ "On the basics of public control in the Russian Federation"; dated 23.06.2016 No. 183-FZ "On the general principles of the organization and activities of public Chambers of the Subjects of the Russian Federation".

Regional legislation on public control, as a rule, is represented by the laws of the constituent entities of the Russian Federation on public control, as well as on regional public chambers. In particular, in the Krasnodar Territory, these regional laws include the laws of the Krasnodar Territory dated 25.12.2015 No. 3305-KZ "On Public control in the Krasnodar Territory" and 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".

Municipal regulatory legal acts on public control, as a rule, are represented by decisions of local self-government bodies on municipal public control, as well as on municipal public chambers (public chambers of municipalities). So, for example, such normative legal acts include the resolution of the head of the Administration of the municipality of Krasnodar dated 18.08.2010 No. 6214 "On the Public Chamber of the Municipality of Krasnodar", as well as the resolution of the administration of the Slobodsky municipal District of the Kirov region dated 07.11.2017 No. 1800 "On approval of the Regulations on Public Control in the municipality of Slobodskoy municipal district of Kirov regions".

Thirdly, the principle of legality assumes that acts and decisions made by subjects of public control are binding on any subjects of law to the extent provided for by the legislation of the Russian Federation.

However, the consolidation, implementation, protection and protection of legality as a principle of public control in the Russian Federation are associated, as a number of authors rightly point out, ^{[4, pp. 3-13; 13]} with numerous problems, among which the following can be distinguished:

Firstly, a certain problem in the consolidation of legality as a principle of public control is the fact that there is no consensus in the scientific and educational literature on the content of the concept of the principle of legality (both in general and in relation to the above-mentioned institution of civil society).

For example, many authors, considering the content of the principle of legality, contrast the concepts of legality and legitimacy. ^{[7, pp. 38-40; 10, pp. 1-20]}

In particular, V. E. Chirkin opposes legalization as a process of establishing, recognizing and supporting a particular state or public institution by law (based on the constitution and legislation) to the process of legitimizing these institutions, which often has nothing to do with laws, and sometimes contradicts them, based on the recognition and support of these institutions by the majority of members of a particular society. ^{[18, pp. 65-73]}

At the same time, a number of authors, on the contrary, believe that only those institutions of civil society that support the legitimately elected government have the right to exist and develop. In particular, E. V. Svinin notes that subjects of public control should be loyal to the apparatus of public power and ensure its legitimacy. ^{[15, pp. 41-44]}

Naturally, one cannot agree with this approach, since the institute of public control is precisely aimed at identifying, preventing and suppressing any violations of the current legislation (especially in terms of violations of the rights, freedoms and legitimate interests of citizens of the Russian Federation, public associations and other non–governmental non-profit organizations) from a wide range of objects of public control, first of all – public authorities, as well as state and municipal organizations, but should not be a means of artificial legitimization of the apparatus of public power in the eyes of the people. Such a negative experience, as we have already noted in previous studies, has already taken place in Nazi Germany (1933-1945) and fascist Italy (late 20s - mid 40s of the last century), when the actions of the official authorities were carried out in full compliance with the norms of legislation, but were condemned by society.^[3]

In this regard, it seems that the principle of legality in relation to the activities of subjects of public control will be observed only if their formation and functioning will be carried out in accordance with the norms of the current legislation on public control, the content of which will be approved and accepted by the majority of the population.

Secondly, an important problem of formalization of legality as a principle of public control is the fact that this institution of civil society is not enshrined in the Constitution of the Russian Federation. This is unprofitable, as we have already noted earlier, distinguishes the institute of public control from the institute of people's control of power, which was enshrined in the Constitution of the USSR of 1977 and the Constitution of the RSFSR of 1978. ^{[3, pp. 169-185]} At the same time, these constitutions not only formalized the concept of people's control, but also consolidated its legal foundations and the mechanism of interaction of people's control bodies with state authorities in the USSR (RSFSR as a union republic).

At the same time, in the scientific and educational literature, proposals have been repeatedly made to formalize this institution of civil society in the Basic Law of the country. ^{[17, p. 7-15]}

In this regard, it seems necessary to formalize the institution of public control in the Constitution of the Russian Federation, fixing its concept, basic principles (including the principle of legality), a list of objects and subjects (or an exhaustive list of identifying features), forms, types and methods, as well as the mechanism of interaction of public authorities with the system of subjects of public control in country.

Thirdly, a certain problem in the consolidation and implementation of legality as a principle of public control is the fact that this principle is enshrined only in Federal Law No. 212-FZ of 21.07.2014 "On the basics of public Control in the Russian Federation", but is not mentioned in any other federal laws on the organization and implementation of public control, and also in most regional laws on public control and relevant regulatory legal acts of local self-government bodies in the country.

In this regard, it seems necessary, on the one hand, to consolidate the system of principles of public control in all federal laws on its organization and activities, and on the other hand, to work on the unification of regional legislation on public control and relevant regulatory legal acts of local governments. This work should be entrusted to the Public Chamber of the Russian Federation together with the Ministry of Justice of the Russian Federation (at the expense of the federal budget).

Fourth, a significant problem in the consolidation and implementation of legality as a principle of public control is the fact that it is defined in Article 6 of Federal Law No. 212-FZ dated 21.07.2014 "On the fundamentals of public Control in the Russian Federation" as "the principle of legality of the activities of subjects of public control", which, in our opinion, is essential it limits its content, since, on the one hand, the principle of legality should apply not only to the activities of subjects of public control in Russia, but also to the mechanism of their organization, and on the other hand, cover all participants in public relations related to the organization and conduct of public control events in the country.

In this regard, the principle of legality in Article 6 of the above-mentioned Federal Law should be defined as follows: "the principle of legality in the organization and implementation of public control measures, as well as the organization and activities of its subjects."

Fifthly, an important problem in ensuring the consolidation and implementation of legality as a principle of public control in the Russian Federation is the fact that the above-mentioned Federal Law in Article 2 excluded from its subject matter a number of objects of public control, for example, activities in the field of national defense and state security, public security and law and order, etc. (under the pretext that the exercise of public control over these facilities will be regulated by the relevant federal laws). However, to date, most of the objects of public control excluded from the subject matter of the above-mentioned Federal Law have not been regulated by any federal laws. For example, federal laws No. 40-FZ dated 03.04.1995 "On the Federal Security Service", No. 390-FZ dated 28.12.2010 "On Security" do not fix provisions on the organization and implementation of public control over activities in the field of state security.

In this regard, in order to ensure the consolidation, implementation, protection and protection of legality as a principle of public control, it is necessary to develop and adopt all federal laws that will regulate public control in relation to objects removed from the subject of Federal Law No. 212-FZ dated 21.07.2014 "On the Basics of Public Control in the Russian Federation". As an alternative, it is possible to supplement the existing federal laws on the organization and activities of the above-mentioned objects of public control with separate provisions (articles, chapters, sections) on the organization and implementation of public control over these objects.

Sixth, a certain problem in the consolidation and implementation of legality as a principle of public control is also the legal status of the normative legal act, which enshrines the foundations of public control in the Russian Federation (the above-mentioned Federal Law).

The fact is that the organization and implementation of public control in Russia are provided for in relation to all types of public authorities in the country, including those whose legal status, powers, principles of organization and activity are fixed directly (and only) in the Constitution of the Russian Federation (for example, the President of the Russian Federation), or in the Constitution of the country and relevant federal constitutional laws (in particular, the Constitutional Court of the Russian Federation).

At the same time, there is a legal conflict when public control, provided for by Federal Law, can be carried out in relation to a public authority whose organization and activities are regulated by normative legal acts of higher legal force (federal constitutional laws and the Constitution of the Russian Federation).

In this regard, it is necessary to raise the legal status of the normative legal act, which establishes the foundations of public control in Russia to the level of Federal Constitutional Law.

Conclusion.

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

1. Legality is one of the most important principles of public control enshrined in the legislation of the Russian Federation. It should be understood as the need to comply with the norms of current federal and regional legislation, as well as relevant regulatory legal acts of local self-government bodies, by all participants in public relations arising in connection with the organization and implementation of public control measures in Russia. At the same time, the legislation on public control must meet the interests and needs of the majority of the population of the Russian Federation.

2. The consolidation, implementation, protection and protection of legality as a principle of public control requires the development and implementation of a system of measures, including those aimed at consolidating this institution of civil society in the Constitution of the Russian Federation, the universalization of legislation on public control (especially in terms of consolidating the system of its principles, including the principle of legality), the development and adoption of federal laws on the organization and implementation of public control in relation to objects removed from the subject of Federal Law No. 212-FZ dated 21.07.2014 "On the Basics of Public Control in the Russian Federation".

3. A legal conflict requires resolution regarding the fact that the legal status of the above-mentioned Federal Law is lower than the legal status of normative legal acts that consolidate the foundations of the organization and activities of a number of types of public authorities in the Russian Federation (by consolidating the legal foundations of public control in the country at a level not lower than the Federal Constitutional Law).