The Central Bank of the Russian Federation and human rights in Russia

Vinokurov Vladimir Anatol'evich ORCID: 0000-0003-0002-3010 Doctor of Law Professor of the Department of Theory and History of State and Law of Saint Petersburg University of the State Fire Service of the Ministry of Civil Defense, Emergencies and Elimination of Consequences of Natural Disasters named after Hero of the Russian Federation Army General E.N. Zinichev 196105, Russia, Saint Petersburg, Saint Petersburg, Moskovsky ave., 149 V.Vinokurov.JD@gmail.com Other publications by this author

The Central Bank of the Russian Federation (the Bank of Russia) is a very prominent structure in our country, endowed with serious state powers. Based on the norms of the Constitution of the Russian Federation and federal laws, we will try to figure out what kind of organization it is.

Simultaneously with the identification of the status of the Bank of Russia, the question of the legal possibility of the Central Bank of the Russian Federation by its decisions to establish any prohibitions and restrictions on human and civil rights and freedoms in the Russian Federation is of interest, for which an analysis of legislation in this part has been carried out through the prism of constitutional norms.

1. The Constitution of the Russian Federation (hereinafter also – the Basic Law of the State, the Basic Law of the Country) contains references to the Central Bank of the Russian Federation in the following context:

– the money issue is carried out exclusively by the Central Bank of the Russian Federation;

– protection and ensuring the stability of the ruble is the main function of the Central Bank of the Russian Federation, which it performs independently of other state authorities;

– The President of the Russian Federation submits to the State Duma a candidate for appointment to the post of Chairman of the Central Bank of the Russian Federation; puts before the State Duma the question of dismissal of the Chairman of the Central Bank of the Russian Federation;

– the State Duma is responsible for the appointment and dismissal of the Chairman of the Central Bank of the Russian Federation; hearing the annual reports of the Central Bank of the Russian Federation ^{[1, Articles 75, 83, 103]}.

The existence of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" ^[2] is due to the constitutional norm, according to which federal laws should be adopted on matters of jurisdiction of the Russian Federation, which also include federal banks ^{[1, Articles 71, 76]}.

The Federal Law states that the status, objectives, functions and powers of the Central Bank of the Russian Federation are determined by: 1) The Constitution of the Russian Federation; 2) the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)"; 3) other federal laws ^{[2, Article 1]}.

As for the constitutional norms, as we see, neither the status, nor the objectives of the activities, nor the functions of the Bank of Russia are defined in the Basic Law of the state; only two powers are established: 1) monetary issue and 2) protection and ensuring the stability of the ruble.

Of the "other federal laws", only the Federal Law "On Insolvency (Bankruptcy)" can be distinguished, which defines additional functions of the Bank of Russia to the main ones carried out by it during the bankruptcy procedure of legal entities or individuals ^[3].

The Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" does not define the status of the Bank of Russia, fixing only that this organization "performs independently of other federal state authorities, state authorities of the subjects of the Russian Federation and local self-government bodies" and "is a legal entity". The aforementioned Federal Law establishes the objectives of the Bank of Russia and its functions ^{[2, Articles 3, Article 4]}.

The presence of the phrase "independently of other bodies" in the specified Federal Law allowed some authors to assume that the Bank of Russia is a public authority ^{[4, pp. 28-31; 5, pp. 12-13; 6, p. 45]}. At the same time, some researchers, in our opinion, unreasonably appeal to the ruling of the Constitutional Court of the Russian Federation No. 268-O of December 14, 2000 at the request of the Supreme Court of the Russian Federation on checking the constitutionality of Part three of Article 75 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" ^[7], which only confirms its powers of the Bank of Russia, established by the said Federal Law.

At the same time, a number of scientists adhere to the position that the Central Bank of the Russian Federation is not a state authority ^{[8, pp. 548-552; 9, pp. 56-62]}. In addition to the arguments supporting these conclusions, we believe that the Bank of Russia really cannot relate to federal state authorities, as well as to other federal state bodies. The proof of the validity of this conclusion is the norms of the Federal Law "On the Civil Service System of the Russian Federation", according to which these bodies meet this status only if they are funded from the federal budget, and their staff consists of federal civil servants ^{[10, Article 18, Article 10]}. 

As it is known, employees of the Bank of Russia do not belong to the category of civil servants ^{[2, Article 90]}, their maintenance, pension provision, life insurance and medical insurance, as well as capital investments and other administrative and economic needs are carried out by the Central Bank of the Russian Federation at its own expense ^{[2, Article 13, Article 18]}.

Thus, taking into account the legal status of the Bank of Russia, which includes a set of functions inherent in state authorities, state institutions, and even state-owned enterprises ^{[11, p. 18]}, it is possible to define the Central Bank of the Russian Federation as a state organization, that is, an organization created by the state, with a special status providing for its right to exercise authority on behalf of the state powers in the field of monetary emission, protection and ensuring the stability of the ruble.

In order to legislate the legal status of the Bank of Russia as a special type of state organization, it is proposed to include in the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" the definition of this structure, adding a new part of the second part of the following content to Article 1:

"The Bank of Russia is an organization created by the Russian Federation (a state organization), endowed with a special status providing for its right to exercise authority on behalf of the state in the field of monetary issuance, protection and ensuring the stability of the ruble.".

2. Let us turn to the norm of the Constitution of the Russian Federation, which provides for the possibility of restricting the rights and freedoms of man and citizen, from which it is clear that this is possible, but only by federal law and only to the extent necessary for the purposes of: 1) protection of the foundations of the constitutional system; 2) protection of morality, health, rights and legitimate interests of other persons; 3) ensuring the defense of the country and the security of the state ^{[1, part 3 of Article 55]}.

The functions of the Central Bank of the Russian Federation indicated at the beginning of the article are contained in Chapter 3 of the Basic Law of the country, referred to as the "Federal Structure", that is, they do not relate to the foundations of the constitutional system set out in Chapter 1 of the Constitution of the Russian Federation, and also do not solve issues of protecting morality, health, rights and legitimate interests of others. In terms of the country's defense, the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" provides only for the presence of field institutions of the Bank of Russia intended "for banking services of military units, institutions and organizations of the Ministry of Defense of the Russian Federation, other state bodies and legal entities ensuring the security of the Russian Federation, as well as individuals living on territories of facilities serviced by field institutions of the Bank of Russia, in cases where the creation and functioning of territorial institutions of the Bank of Russia is impossible" ^{[2, p. 86]}. With regard to state security issues, the said Federal Law obliges the Bank of Russia only to coordinate with the federal executive authority authorized in the field of security, mandatory requirements for credit institutions in the field of information protection ^{[2, Articles 574, 764-1, 769-7]}.

At the same time, this Federal Law provides for the right of the Board of Directors of the Bank of Russia to make decisions on direct quantitative restrictions, which are understood as "setting limits on refinancing of credit institutions and conducting certain banking operations by credit institutions" ^{[2, Articles 18, Article 43]}, which means "restriction of the rights of banking and credit institutions to obtain loans from the Bank of Russia as part of their refinancing, as well as restrictions on certain banking transactions" ^[12], moreover, as stated in the Federal Law we are investigating, such restrictions are possible "in exceptional cases for the purpose of conducting a unified state monetary policy only after consultations with the Government of the Russian Federation" ^{[2, Article 43]}.

It is interesting to note that the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", on the one hand, prohibits the Bank of Russia "to establish, directly or indirectly, restrictions not provided for by federal laws on transactions by customers of credit institutions", and on the other hand, grants it the right to establish "rules for cash settlements, including cash restrictions settlements between legal entities, as well as settlements with the participation of citizens related to their entrepreneurial activities" ^{[2, Article 58, Article 823]}.

As we can see, formally and legally, the Bank of Russia does not have the right to impose restrictions on individuals in any cases, including with respect to property owned. We assume that the limits on "the conduct of certain banking operations by credit institutions" may conceal restrictions imposed on individuals through the requirements established by the Bank of Russia for credit institutions. However, scientists, commenting on this norm, believe that in this case we are talking about restrictions "on the volume of funds raised or, on the contrary, on the volume of loans issued or on the amount of interest on loans or deposits" ^{[13, p. 149]}. And at the same time, they note that in any case, the right of the Bank of Russia to apply direct quantitative restrictions can be implemented only if "the following conditions are met, firstly, they should apply equally to all credit institutions; secondly, they can be applied only in exceptional cases in order to conduct a unified state monetary policy and, Thirdly, only after consultations with the Government of the Russian Federation" ^{[14, p. 171]}.

At the same time, the Bank of Russia, without observing the conditions established by law, independently introduced and then extended the restriction on the issuance of funds from foreign currency deposits or accounts of citizens ^{[15; 16]}. Moreover, this was done by informational letters that were not registered in accordance with the procedure established for the state registration of regulatory legal acts of federal executive authorities, as prescribed by the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" for regulatory acts of this body ^{[2, Article 7]}, simultaneously violating the ban on the publication of regulatory legal acts acts in the form of letters, orders and telegrams ^[17]. These information reports do not mention that any exceptional case has occurred, nor that consultations have been held with the Government of the Russian Federation on this matter.

The above means that the restrictions imposed by the Bank of Russia on the withdrawal by citizens, foreign citizens and stateless persons of cash currency belonging to them from accounts opened in accordance with the established procedure in commercial banks have come into conflict with both the constitutional norm and the norms of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)". In our opinion, letters (messages, notices, etc.) that unreasonably restrict the rights and freedoms of citizens should be canceled or properly executed.

Since the Central Bank of the Russian Federation is accountable to the State Duma, it is this chamber of the Parliament of the Russian Federation that should exercise control powers over the Bank of Russia ^{[2, Article 5]}. However, this Federal Law does not establish any forms or types of control by the State Duma over regulatory legal acts issued by the Bank of Russia, including in terms of compliance by this body with human and civil rights and freedoms in the Russian Federation. The possibility of exercising this control is also not provided for in Chapter 21 of the Regulations of the State Duma, which fixes the procedure for considering issues related to the relationship between the State Duma and the Central Bank of the Russian Federation ^[18].

Interestingly, the Bank of Russia is not included in the number of organizations in respect of which prosecutorial supervision is carried out ^[19]. Only the Accounts Chamber of the Russian Federation conducts a state audit (in this case, in the monetary sphere) and, exclusively by the decision of the State Duma, checks the financial and economic activities of the Central Bank of the Russian Federation ^{[20, Article 15, Article 23]}. In respect of acts of the Bank of Russia affecting the rights and freedoms of man and citizen, administrative control is not carried out by any of the state bodies of the Russian Federation. It is impossible to resolve the case in court according to the specified information letters of the Bank of Russia, since the Supreme Court of the Russian Federation considers as a court of first instance administrative cases on challenging regulatory legal acts and acts issued, including by the Central Bank of the Russian Federation, containing explanations of legislation and having regulatory properties ^{[21, Article 2]}, to which information the messages of the Bank of Russia cannot be excluded.

There is an obvious presence in the country of a body formed by the state to solve monetary and financial issues established by the Constitution of the Russian Federation, without formally determining its status (based on the options provided for: a state body, a state institution, etc.), and not controlled by any of the existing state bodies in terms of the Bank of Russia's observance of human and civil rights and freedoms in Of the Russian Federation.

The existing legal position of the Central Bank of the Russian Federation allows its bodies to make decisions that violate the rights and freedoms of man and citizen, since these rights are restricted without determining the constitutional necessity of such restriction and even formalized in a form not provided for by law.

Thus, if the above conditions are met, established by the Constitution of the Russian Federation and the Federal Law "On the Central Bank (Bank of Russia)", the Bank of Russia has the right to issue regulatory legal acts restricting human and citizen rights in the Russian Federation in the field of monetary emission, protection and ensuring the stability of the ruble (in the financial and credit sphere), but in the forms provided for the issuance of regulatory legal acts by federal executive authorities. However, in order for the Bank of Russia not to violate Russian legislation in this part, it is proposed to oblige the Prosecutor General's Office of the Russian Federation to monitor the observance of human and civil rights and freedoms by the Central Bank of the Russian Federation, for which to supplement the third paragraph of paragraph 2 of Article 1 of the Federal Law "On the Prosecutor's Office of the Russian Federation" after the words "federal executive authorities," with the words "by the Central Bank of the Russian Federation,".

Conclusions. The proposals made will make it possible to consolidate the special status of the Central Bank of the Russian Federation in the federal law regulating its activities; to establish prosecutorial supervision over the activities of the Bank of Russia in terms of compliance with the constitutional rights and freedoms of man and citizen in the Russian Federation, thus eliminating the possibility of violation of these rights and freedoms.