Legal foundations of the national security of the Russian Federation

Shikhnabiev Rustam Abdulkadirovich Senior lecturer; Methodologist of the All-Russian Institute for Advanced Training of Employees of the Ministry of Internal Affairs of Russia 142007, Russia, Moscow region, Domodedovo, Fir street, 3 rustamkaluga@yandex.ru Other publications by this author     Afonina Irina Alekseevna PhD in Law Senior Research Fellow of the Research Department of the All-Union Institute of Advanced Training of the Ministry of Internal Affairs of Russia 142007, Russia, Moscow region, Domodedovo, Fir street, 3 irina9247@yandex.ru

Volkova Ol'ga Alekseevna Inspector of the 5th Department of the zonal information center of the Central Internal Affairs Directorate for Moscow 38 Petrovka str., Moscow, 127944, Russia irina9247@yandex.ru

Security issues have always been central to the life of every country. The significance of this problem is evidenced by the entire history of human development over many centuries ^[2].

The increasing level of threats and political challenges against the background of the beginning of a special military operation of the Russian Federation on the territory of Ukraine forces the leadership of our country to develop and take appropriate measures to implement productive solutions to protect the interests of the state and society. In this regard, the issue of effective national security in various aspects comes to the fore: both in the organizational and legal field.

Before proceeding to the question of the specifics of the legal regulation of the national security of the Russian Federation, it is important to consider the conceptual apparatus, as well as to determine the structure of this institution.

It is worth noting that currently the following terms are used in Russian legislation, but are not clearly defined: "security", "state security". Often, even in the legal field, one concept is replaced by another. There is also no consensus among legal scholars on the content of these concepts, as well as the concept of "national security".

Thus, some authors consider the term "national security" as an incorrect translation from the English expression "national security". In this case, "national" is translated not as "nation" or "national", but as "people, society, state" ^[1].

According to M.Y. Zelenkov, national security is "the protection of the vital interests of the individual, society and the state from external and internal threats, achieved by applying a system of measures of a political, economic, organizational, legal, military, ideological and other nature, adequate to threats to the vital interests of the individual, society and the state, ensuring their sustainable progressive development"^[7].

Academician of Legal Sciences A.V. Opalev believes that "in a broad sense, national security is the protection of the foundations of a country's existence. In other words, state security is the highest level of national security" ^[8].

We agree with the opinion of V.G. Vishnyakov, who proposes the following definition of the national security of the Russian Federation: "the state of protection of vital interests of the individual, society and the state from internal and external threats, achieved by a combination of actions of state authorities, local self-government, public organizations and people on the basis of regulatory legal acts in order to ensure sovereignty and territorial integrity the state, its sustainable and progressive development" ^[3]. In our opinion, in this definition, the purpose of activities to ensure national security practically coincides with the purpose of activities to ensure state security in its traditional sense.

"National security" as a concept has been repeatedly formulated in various legal acts (in particular, in the National Security Strategy in the Decree of the President of the Russian Federation dated 17.12.1997 No. 1300 (ed. from 10.01.2000) "On the approval of the Concept of National Security of the Russian Federation (Expired) and the Decree of the President of the Russian Federation dated May 12, 2009 No. 537 (ed. from 01.07.2014) "On the National Security Strategy of the Russian Federation until 2020" (Expired)), while with each new edition, the definition of the term in question changed.

The definition of the term "national security" was given in the National Security Strategy of the Russian Federation until 2020, approved by Presidential Decree No. 537 of 12.05.2009. This definition corresponded with the previously established definition of the concept of "security" given in Article 1 of FZ-2446-1 of 05.03.1992 "On Security", as well as with the security objects formulated in it. This gives grounds for concluding that the two definitions of different terminology (security and national security") are equal in content. However, in our opinion, this is unacceptable from the standpoint of the very technique of jurisprudence. It is also important to emphasize that the current version of Federal Law No. 390-FZ dated December 28, 2010 (ed. dated 10.07.2023) "On Security" does not provide a definition of the terms "security" and "national security" at all.

Later, in the text of the Strategy on National Security in the Russian Federation, approved by Presidential Decree No. 683 of December 31, 2015, the concept of "national security" appeared in a more general, comprehensive formulation. It included various types and types of public security provided for by the Constitution of the Russian Federation (adopted by popular vote on 12.12.1993 with amendments approved during the all-Russian vote on 01.07.2020) and other legislative norms of the Russian Federation.

It should be noted that in the Decree of the President of the Russian Federation dated December 31, 2015 No. 683 "On the National Security Strategy of the Russian Federation" (Expired), the concept of national security has changed again and has the following definition: "the national security of the Russian Federation is the state of protection of the national interests of the Russian Federation from external and internal threats, in which realization of constitutional rights and freedoms of citizens, decent quality and standard of living, civil peace and harmony in the country, protection of the sovereignty of the Russian Federation, its independence and state integrity, socio-economic development of the country."

Summarizing the above, it is worth concluding that national security can be interpreted in the broadest sense – as ensuring the conditions for the physical survival of society, the preservation of sovereignty and integrity of territories, the indivisibility of the country. National security also includes the creation by citizens and members of society of all the necessary conditions to ensure civil liberties, cultural development, and spiritual self-expression.

In the global world with its constant changes, for many countries and peoples, the issue of national security is considered a sign of stability, stability, and development of the country as a system of society. National security is a public–state institution in which there must be reliable protection of the vital interests of each of the citizens from external threats and the influence of dangerous internal factors. Also, national security is a sign of the protection of public interests from any real or potential threats.

In any State, national security includes several constituent elements (separate spheres of activity). These are the military sector, economy, social sphere, politics, spiritual and moral life of society, etc. The current situation in the world is closely connected with the emergence of various threats to the state, serves as a source of new requirements for ensuring national security ^[4].

Ensuring national security within each country serves as an element of international security. In addition, national security serves as a specific strategy, the purpose of which is to ensure all the significant interests of citizens, the needs of the population of the country ^[6].

When discussing and considering internal national threats to Russia, it is worth studying a specific set of certain phenomena. First of all, they include corruption and social inequality of the population. It is also difficult to ignore a significant percentage of the population below the poverty line. Other internal threats include rising unemployment and price inflation, relatively new crisis trends in the development of the social institution of the family.

When moving on to the study of the issue of the specifics of the legal regulation of national security in Russia, it is important to note the following fact: over the past ten years, significant changes have appeared in Russian legislation regarding national security issues. This was mainly expressed in the introduction of complementary concepts, definitions and categories.

It is also important to note the fact that the Constitution of the Russian Federation does not use the concept of "national security". But at the same time, it is still a formative, initial legal platform for the development of various ways to ensure national security in our country.

The role of the Constitution of the Russian Federation is the leading one in the legal sphere related to ensuring national security. The main Russian law plays a key role in the modern solution of issues related to ensuring all areas of the country's security. First of all, all aspects and types of public relations are regulated through the Constitution of the Russian Federation. They are important for the personal safety of citizens, for public and state security. Secondly, it guarantees the integrity and sovereignty of Russian territories, which is of crucial importance for national security. Thirdly, the Constitution of the Russian Federation declares the Russian people, with its entire multinational structure, to be the bearers of sovereignty, the only source of state power. Fourth, the Constitution of the Russian Federation includes specific instructions on various aspects of national security, its varieties. And, finally, fifthly, the Constitution of the Russian Federation, as mentioned above, has become the basic legal act for developing ways to ensure national security.

In addition to the Constitution of the Russian Federation, the legal basis of Russia's national security is the principles and norms of international law (namely, the Universal Declaration of Human Rights (adopted by the UN General Assembly on 10.12.1948); the International Covenant on Economic, Social and Cultural Rights. Adopted on 12/16/1966 by Resolution 2200 (XXI) at the 1496th plenary session of the UN General Assembly), the Collective Security Treaty of May 15, 1992, etc.).

The formation of the legislative system of the Russian Federation on national security issues begins with the adoption of the above-mentioned Law of the Russian Federation "On Security" (dated 05.03.1992 No. 2446-1). He consolidated the key concepts and objects in the field of security, the corresponding powers of the authorities in matters of national security. It is important to note that this law lost its force after the publication of the new Federal Law No. 390 in 2010. As already noted, this act widely applies such a category as "security", but does not include its general interpretation, does not give a legal and formal definition of a specific phenomenon. The subject of regulation in this law is the key principles and content of activities to ensure security at the state level, security in society, ecology, economy, military sphere and other industries. Also, this law contains descriptions of the powers of federal authorities, state authorities of the subjects of the Russian Federation and local self-government bodies in the field of security on the territory of our country and defines the legal status of the Security Council of the Russian Federation ^[10].

When trying to identify the system of legislative acts in the field of national security of the country, it is worth considering its varieties in the context of public relations. In 1996, the Criminal Code of the Russian Federation No. 63-FZ of June 13, 1996 (as amended on 04/28/2023) (hereinafter referred to as the Criminal Code of the Russian Federation) was published and still serves as the only source of criminal law in Russia.

Article 2 of the Criminal Code of the Russian Federation establishes the main tasks of the criminal law: "protection of human and civil rights and freedoms, property, public order and public safety, the environment, the constitutional system of the Russian Federation from criminal encroachments, ensuring peace and security of mankind, as well as the prevention of crimes."

It is important to note that according to the content of the tasks outlined in the legal norms of the Criminal Code of the Russian Federation, it can be considered as a separate act of legislation designed to ensure national security. This is due to the fact that the Criminal Code of the Russian Federation includes an extensive, exhaustive list of criminal acts that are suppressed by the authorities in order to preserve and maintain the necessary level of national security. Along with this, the special part of the Criminal Code of the Russian Federation contains such sections as: section IX "Crimes against public safety and public order", section XII "Crimes against the peace and security of mankind". In these sections, the limits of responsibility for the most serious crimes are fixed, including those that are capable of endangering national security. For example, this category of crimes can include the activities of terrorist organizations, the revival of nationalist ideologies, calls for extremism, acts of proliferation of particularly dangerous weapons (mass destruction), etc.

Offences relating to national security are subject to regulation by the Code of Administrative Offences of the Russian Federation No. 195-FZ of December 30, 2001 (as amended on 04/28/2023) (hereinafter referred to as the Administrative Code of the Russian Federation). The provisions contained therein cover a wide variety of areas of administrative violations. For example, communication and information systems, the sphere of economics and finance, customs activities, state structures, the operation of the state border, issues of public security protection, accounting of military personnel. 

The National Security Strategy adopted in 2021 is directly related to the introduction of amendments to the Russian Constitution in 2020 (specifically paragraph "m" of Article 71), significant changes taking place around the world and events that have already occurred. It is important to clarify that the national security of the Russian Federation should also be perceived through the prism of maintaining national–level security in other states, both friendly and unfriendly.

An important feature of Russia's National Security Strategy is that there is a possibility of its permanent adjustments. It is much easier to make changes in the composition of the Strategy than in the Federal Law. The strategy serves as a more convenient and flexible, functional document – it is easy to adapt it to the dynamic conditions of a rapidly changing world. The last time changes to the Strategy were proposed was in 2020. In the process of the next revision, the legislator decided on the expediency of predicting the possible clarification of certain provisions in the document, which will take into account the specifics of the current situation around the world, the internal situation in the country. It was in 2020 that adjustments were made regarding the threat of degradation of the controlling regime over combat resources, weapons, and the risks of an increase in the number of international hotbeds of political and military tension. A special dedicated chapter is devoted to the problems of security in the information sphere.

When considering other regulatory legal acts that regulate issues of national security, it is important to emphasize one important point. In view of Russia's access to the sea and the long length of the maritime border, it is especially important to ensure the protection of national territorial interests within the existing sea area, taking into account the state territory on the coast, the presence of a special economic zone, its own continental shelf, open sea zones ^[5].

Issues, tasks, directions, principles, mechanisms for the implementation of security in naval activities are regulated by Decree of the President of the Russian Federation No. 327 dated 20.07.2017 "On Approval of the Fundamentals of the State Policy of the Russian Federation in the field of naval activities for the period up to 2030".

One of the modern threats to Russia is terrorism. In this regard, the President of the Russian Federation approved the Concept of Countering Terrorism in the Russian Federation (approved by the President of the Russian Federation on 05.10.2009), which defines the main directions and tasks for countering this criminal act. In addition to it, in 2018, the Concept of Developing a national system for countering the legalization (laundering) of proceeds from Crime and the financing of terrorism was approved (approved by the President of the Russian Federation on 30.05.2018).

There are also other documents adopted as part of the implementation of certain areas of national security (for example, Decree of the President of the Russian Federation dated 05.12.2016 No. 646 "On the approval of the Information Security Doctrine of the Russian Federation", Decree of the President of the Russian Federation dated 13.05.2017 No. 208 "On the Strategy of Economic Security of the Russian Federation for the period up to 2030", etc.).

In addition to these aspects, the system of sources of the rule of law in matters of national security includes other acts – regional, subordinate.

As a result of this article, the following distinctive feature of the system of legal support in the field of national security can be noted: the structure of the key areas of this system does not yet have the required laws. At the same time, the central, most important areas of the national security system are subject to regulation through regulatory legal acts of the so-called "second level" ^[9].

Such legal documents include the Concept of National Security of the Russian Federation, the Military Doctrine of the Russian Federation (approved by the President of the Russian Federation on 25.12.2014 No. Pr-2976, Decree of the President of the Russian Federation dated 31.07.2022 No. 512 "On Approval of the Maritime Doctrine of the Russian Federation", Decree of the President of the Russian Federation dated 31.03.2023 No. 229 "On approval of the Concept of Foreign Policy of the Russian Federation", Decree of the President of the Russian Federation dated 25.04.2018 No. 174 "On approval of the Fundamentals of the State Border Policy of the Russian Federation" and other documents. With this in mind, there have also been cases of disagreements in federal laws and legislative concepts, and on the same issues. For example, in the text of the Military Doctrine of the Russian Federation, one can note the unjustified allocation, strengthening of the tasks of the military department (which distinguishes the doctrine from the composition of the National Security Concept) in relation to limiting and eliminating threats of an internal nature. Against this background, there is a decrease in the importance of the main goal in matters of ensuring Russian military security (prevention, localization and neutralization of military threats against Russia). This fact is direct evidence that it is necessary to develop a uniform, comprehensive and harmonious system of legal norms, with a clear hierarchy, uniform interpretation and interpretation on various issues. The system should also have strong relationships within its own structure, but not have disagreements on the merits – regarding the interpretation and interpretation, implementation of these legal norms.

Among the problems in the sphere of ensuring national security are the existing gaps in regional legislation (specifically, in relation to the territories of the DPR and LPR, Kherson and Zaporozhye regions annexed to Russia). It is worth expressing an opinion on the need to develop a legal framework for ensuring the security of these regions. At the same time, the development should be based not on fears, stereotypes and suspicions about neighboring countries, not on approaches and positions of the defense type, but on specific legal outlines of understanding the events taking place, a sober analysis and consideration of all emerging opportunities, as well as their consequences.

Based on the above, it can be concluded that with all the vastness, clarity of the legal regulation of relations in the field of national security, as well as, taking into account the increased social importance of security and the nationwide nature of this phenomenon, it can be considered appropriate to adopt a special Federal law "On National Security". The proposed regulatory act can in the future become the basis for the development of Russian laws that regulate legal relations in this area.