Public control in the Republic of Belarus: problems and prospects for the development of legislation (public law analysis)

Petrenko Elena Gennad'evna PhD in Law Associate Professor of the Department of State and International Law, Kuban State Agrarian University named after I. T. Trubilin 350044, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 niipgergo2009@mail.ru Other publications by this author     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

Nagaitsev Viktor Valentinovich ORCID: 0000-0003-0231-8592 PhD in Sociology Head of the Department, Associate Professor, Department of Sociology and Conflictology, Altai State University 656049, Russia, Altai Territory, Barnaul, Lenin Avenue, 61 niipgergo2009@mail.ru Other publications by this author

Introduction. The issues of the organization and functioning of the institute of public control in the Republic of Belarus are the object of research in the works of A. F. Lebedev, ^{[1, pp. 55-61]} G. A. Vasilevich, ^{[2, pp. 188-192]} O. V. Makarova, ^{[3, pp. 15-21]} I. A. Mikhailovsky and A.V. Nevmerzhitskaya, ^{[4, pp. 28-31]} A. V. Zinkevich ^{[5, pp. 632-639]} and many other authors. The organization and implementation of public control in certain branches of public administration and local government in the country are studied in the works of D. V. Shcherbik, ^{[6, pp. 79-88]} Ya. B. Dicevich, ^{[7, pp. 79-88]} N. V. Kiiko, ^{[8, pp. 423-427]} I. A. Belova, ^{[9, pp. 114-124]} I. S. Shakhray, ^{[10, pp. 59-67]} I. N. Kiryakova, ^{[11, pp. 156-161]} as well as a number of other scientists. However, the works devoted to the analysis of existing problems and prospects for the development of the legislation of the Republic of Belarus on public control, the mechanism of their resolution using positive foreign experience in the organization and functioning of this institution of civil society, in our opinion, are not enough for the development of the Belarusian scientific legal doctrine of public control. This is the reason for the choice of the topic of this scientific research, the purpose of which is to develop a system of measures and proposals to resolve the problems of the development of legislation of the Republic of Belarus on public control. The realization of this goal will be achieved by solving a number of tasks: 1) by substantiating the importance of the institution of public control in the country as the most important legal guarantee for the implementation, protection and protection of the constitutional principles of democracy and participation of citizens of Belarus in the management of state affairs; 2) by researching the problems of the organization and functioning of this institution of civil society, hindering the effective development of legislation on public control in the Republic of Belarus; 3) by developing and substantiation of the system of measures and proposals to resolve the above-mentioned problems in order to optimize the processes of organization and activity of this institution of civil society, both through amendments and additions to the Constitution of the Republic of Belarus and current legislation, and through the development and adoption of new laws on: the organization and functioning of the public control system in the Republic of Belarus; the creation of the Public Chamber of the Republic Belarus, regional public chambers, district and city public chambers (councils).

The object of the study is public relations related to the organization and functioning of the institute of public control in the Republic of Belarus, and the subject of the study is normative legal acts on the legal regulation of this institution of civil society in the country, as well as scientific legal doctrine in the field of organization and functioning of the institute of public control.

The methodology and methodology of the study. The following scientific research methods are used in the work, in particular: comparative legal; statistical; sociological; formal-logical; historical-legal; method of analyzing specific legal situations. The empirical basis of the study was: the regulatory framework of the Russian Federation and the Republic of Belarus, devoted to the legal regulation of the Institute of public control; the works of Russian and Belarusian authors, devoted to the analysis of modern problems of the organization and functioning of subjects of public control in the Russian Federation and the Republic of Belarus; the practice of the organization and activities of subjects of public control in the Russian Federation and in the Republic of Belarus.

The main text. According to article 3 of the Constitution of the Republic of Belarus, the only source of State power and the bearer of sovereignty in the Republic of Belarus is the people exercising their power both directly and through representative and other bodies in the forms and limits defined by the Constitution. However, the powers delegated by the people to State and local government bodies require constant monitoring by civil society so that, firstly, they are not illegally appropriated or withheld by any public authorities or their officials, secondly, so that they are implemented as effectively as possible, thirdly, to ensure that the process of their implementation meets the interests of the majority of the population of the Republic of Belarus, without violating the rights, freedoms and legitimate interests of citizens of the country.

In this regard, the constitutional principles of democracy and participation of citizens of Belarus in the management of state affairs need a system of guarantees for their implementation, protection and protection, which includes several elements: 1) a system of separation of powers, which presupposes the existence of a complex mechanism of checks and balances, when each branch of government exercises control over others, balancing them; 2) a system of constitutional control, the most important element of which is the President of the Republic of Belarus, who has the powers of the guarantor of the Constitution, human and civil rights and freedoms; 3) institutions of civil society, through which the people (citizens of the Republic of Belarus) exert influence on state and local government bodies in order to ensure the implementation, protection and protection of constitutional principles.

The most important institution of civil society, at the same time, is the Institute of public control, which has a long and successful history of organization and functioning during the USSR in the form of the institute of people's control of power, which, as we have already justified in previous studies, was most effectively and efficiently carried out in the BSSR. ^{[12, pp. 169-185]}

However, the organization and functioning of the institute of public control in the Republic of Belarus are associated with numerous problems that hinder the effective development of legislation on public control in the country, among which the following can be distinguished:

Firstly, this institution of civil society is not directly formalized in the Constitution of the Republic of Belarus. This problem is not unique to Belarus. In particular, the Constitution of the Russian Federation also does not directly enshrine the concept of "public control", without mentioning mandatory subjects of public control, including the Public Chamber of the Russian Federation. However, unlike in a number of countries, the Basic Law of the Republic of Belarus contains a number of provisions that are somehow devoted to the possibility of participation of civil society institutions in the implementation, protection and protection of the constitutional principles of democracy and the participation of citizens of the Republic of Belarus in the management of state affairs. Thus, article 21 of the Basic Law of the country imposes on citizens the need to exercise social responsibility, making a feasible contribution to the development of society and the state. In turn, article 34 guaranteed citizens the right to receive information (and materials) about the activities of State bodies, about political, economic, cultural and international life, and the state of the environment, which the latter are obliged to provide to them upon their personal and collective appeals (article 40). Citizens of Belarus have the right to participate in the discussion of any normative legal acts (article 37 of the Constitution). Trade unions are an important institution of civil society that monitors the observance of citizens' rights (article 41). A distinctive feature of the Constitution of the Republic of Belarus (for example, in comparison with the Constitution of Russia in 1993) is the peculiarity of the formation of the highest representative body of democracy in the country – the All-Belarusian People's Assembly, which, in our opinion, can also be safely attributed to the body of public control, since, on the one hand, it is designed to ensure civil harmony, and On the other hand, its delegates include representatives of civil society (article 892).

Secondly, a significant problem in the development of legislation on public control in the Republic of Belarus is the absence of a separate Law on the organization and functioning of this institution of civil society in the country at all levels of government, local government and self-government, which would unify the forms, methods, types of public control measures, would consolidate the signs of attribution of subjects of law to the category of objects of public control, it would formalize the system of subjects of public control, as well as the mechanism of their interaction and cooperation with public authorities, local government and self-government (especially with law enforcement agencies).

Thirdly, an important problem in the development of the institute of public control in Belarus is the lack of mandatory subjects of public control who would organize and conduct public control events on a regular basis, analyzing their effectiveness and efficiency (both at the national level and at the level of individual regions, the city of Minsk, cities and districts of the country).

Fourthly, the absence of provisions and chapters in certain laws of the Republic of Belarus devoted to the possibility of organizing and implementing public control measures over individual state authorities and local government in the country is also a significant problem.

Fifthly, an important problem in the development of the institute of public control is the fact that the current criminal and administrative legislation does not contain separate criminal and administrative law norms, through the application of which it would be possible to bring to criminal and administrative responsibility officials of state authorities and local government, private business entities for actions (inaction) that impede the legitimate activities of subjects of public control in the organization and conduct of public control events in the country by the latter.

Sixth, a significant problem in the functioning of subjects of public control is their lack of real powers to control the activities of public authorities, their officials, as well as any other entities that exercise certain public powers directly affecting the mechanism of implementation, protection and protection of the constitutional rights and freedoms of citizens of the Republic of Belarus.

The resolution of the above-mentioned problems in order to optimize the processes of organization and activity of this institution of civil society requires the development and implementation of a system of measures and proposals for the development of the country's legislation on public control (both through amendments and additions to the Constitution of the Republic of Belarus and current legislation, and through the development and adoption of new laws on: the organization and functioning of the public control system establishment of the Public Chamber of the Republic of Belarus, regional public chambers, district and city public chambers (councils).

Firstly, the institution of public control in the Republic of Belarus should be formalized in the Constitution of the country (either in the form of a separate chapter or by supplementing its text with a group of articles).

At the same time, these additions should fix: 1) definition of the concept of "public control in the Republic of Belarus"; 2) a system of subjects of public control (both mandatory, the formation and activity of which must be carried out on a permanent basis on the territory of the country, its individual regions, cities, districts, other settlements, and optional, the creation of which may be provided for by separate laws of the Republic of Belarus) as well as a set of their powers; 3) the system of objects of public control in the country, or a set of signs according to which certain subjects of law can be attributed to them; 4) types, forms and methods of public control; 5) a system of types of public control measures; 6) the mechanism of interaction of subjects of public control with public authorities local government and local self-government in the Republic of Belarus; 7) the mechanism of interaction and implementation of joint activities of subjects of public control and law enforcement agencies in terms of prevention, suppression of crimes and offenses that infringe on the constitutional rights and freedoms of citizens of the Republic of Belarus; 8) the limits of public control in the country; 9) the mechanism of mutual responsibility of subjects of public control control and bodies of state power, local government and local self-government in case of violation by them of the Constitution of the Republic of Belarus and the current legislation on public control.

When developing these provisions, it is necessary to take into account the positive experience of consolidating the institute of people's control of power, which successfully functioned in the BSSR during the era of the USSR, being a serious tool for maintaining socialist legality, combating corruption in the system of public administration. ^{[12, pp. 169-185]} The experience of the organization and functioning of the institute of public control, which was formalized in the legislation of the CIS member states (in particular, in the Russian Federation and the Republic of Kazakhstan), also plays an important role. ^{[13, pp. 10-14; 14, pp. 73-75]}

Secondly, the Law of the Republic of Belarus "On the Organization and Implementation of Public Control in the Republic of Belarus" should be developed and adopted, using both the domestic experience of the organization and functioning of this institution of civil society and the legislative experience of foreign countries, in particular, federal laws No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation Federation" and dated 04.04.2005 No. 32-FZ "On the Public Chamber of the Russian Federation".

However, only the positive experience of foreign legislation should be used, without repeating mistakes. For example, Federal Law No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation" removed from the subject of its regulation in Article 2 a huge number of objects of public control (activities in the field of national defense and state security, public security and law enforcement, police, investigative bodies, prosecutors and courts related to the execution of punishments, control over the trafficking of narcotic drugs and psychotropic substances, the maintenance of orphaned children and children left without parental care, the provision of psychiatric care; public relations regulated by legislation on elections and referendums related to the organization and conduct of public discussions and public hearings in accordance with legislation on urban development activities arising from the implementation of public inspectors environmental protection, public environmental control (public environmental control), public inspectors in the field of animal treatment, public control in the field of animal treatment), arguing for such withdrawal of objects of public control by the need to adopt separate federal laws, none of which was adopted after the adoption of this Federal Law. As a result, a "white field" has been formed in the practice of organizing and implementing public control in Russia, within which this institution of civil society does not cover the most important branches of public administration.

Thirdly, the Public Chamber of the Republic of Belarus should be created at the republican level in Belarus, which should be given the authority to coordinate the organization and activities of subjects of public control in the country. The formalization of this subject of public control should be carried out by adopting a separate Law of the Republic of Belarus "On the Public Chamber of the Republic of Belarus". At the same time, the formation of the composition of the Public Chamber should be carried out taking into account the involvement of the maximum number of public organizations of the country, trade unions, which should form the entire membership of the Public Chamber. Alternatively, they should submit candidates to the Public Chamber, and the approval of its personal composition can be delegated to the All-Belarusian People's Assembly.

Fourthly, amendments and additions should be made to the legislation of the Republic of Belarus concerning the possibility and necessity of implementing public control measures in various sectors of public administration, local government and local self-government of the country, detailing the powers of subjects of public control to monitor the activities of public authorities, their officials, as well as any other entities that They exercise certain public powers delegated to them by legislation, or whose activities affect the process of realizing the constitutional rights and freedoms of citizens of the Republic of Belarus. For example, it is necessary to formalize the institute of public control in the form of separate chapters or sections in the Electoral Code of the Republic of Belarus, as well as in the Law of the Republic of Belarus dated 04.01.2010 No. 108-Z "On Local Government and Self-Government" (for example, fixing in Chapter 7 the institute of public control as a guarantee in the field of local government and self-government).

Fifth, it is necessary to expand the powers of trade unions in the Republic of Belarus in terms of organizing and conducting public control events.  In particular, they should be given the right to organize inspections of the effectiveness of the use of state budget funds provided to private business entities within the framework of fulfilling a state order, since, for example, the level of wages of trade union members directly depends on this.

Sixth, due to the fact that, as we noted earlier, the All-Belarusian People's Assembly includes delegates from civil society, this supreme representative body of the people's power in the Republic of Belarus should be given a number of powers in the field of organization and functioning of the institution of public control in the country. For example, to give him the right to approve members of the Public Chamber of the Republic of Belarus. In addition, the supervisory powers of the All-Belarusian People's Assembly should also be expanded over the activities of state authorities, local government and local self-government, for example, in terms of temporary suspension of regulatory legal acts of regional, city, district, etc. executive committees, if violations of current legislation, as well as constitutional rights and freedoms were revealed as a result of public control measures. freedoms of citizens of the Republic of Belarus (up to the resolution of this issue on the merits by the President of the Republic of Belarus or judicial authorities).

Seventh, it should be fixed in the current legislation regulating the organization and activities of constitutional control bodies in the Republic of Belarus (in particular, in the laws of the Republic of Belarus dated 02/21/1995 No. 3602-XII "On the President of the Republic of Belarus" and dated 07/01/2010 No. 142-Z "On the State Control Committee of the Republic of Belarus and its territorial bodies") the mechanism of their interaction with subjects of public control (especially the head of state and state control bodies in the country).

Eighth, the Criminal Code of the Republic of Belarus, as well as the Code of the Republic of Belarus on Administrative Offenses, should be supplemented with articles containing the possibility of bringing to criminal and administrative responsibility officials of state authorities and local government for actions (inaction) that impede the organization and conduct of public control events in the Republic of Belarus.

Ninth, it is necessary to increase the powers of existing public control bodies, for example, public inspectors (whose activities are regulated by Decree of the President of the Republic of Belarus dated 09/10/2021 No. 339 "On Public Inspectors"), public advisory (expert) councils (which were created by departmental regulatory legal acts, for example, by order of the Ministry of Health of the Republic of Belarus No. 11/14/2016 1116 "Regulations on the Public Advisory (Expert) Council for the Development of Entrepreneurship under the Ministry of Health of the Republic of Belarus"), (other public councils) under state and local government bodies, obliging the latter to create similar subjects of public control under these public authorities. This will allow for real-time public monitoring of the activities of all public authorities, as well as their officials.

Conclusion.

In the course of our scientific research, we have made a number of conclusions, among which we can highlight, in particular, the following:

1. The Institute of Public Control in the Republic of Belarus acts as the most important legal guarantee for the implementation, protection and protection of the constitutional principles of democracy and participation of citizens of Belarus in the management of state affairs, as it allows citizens of the country independently and as part of public associations (for example, trade unions) to participate in the control of both the activities, acts and decisions of public authorities as well as the activities of other organizations, if it affects the rights and freedoms of citizens, as well as the rights and legitimate interests of public associations and other non-governmental non-profit organizations.

2. Among the main problems that hinder the organization and functioning of public control in the Republic of Belarus, we have formalized and studied, in particular: a) the lack of formalization of the institution of public control in the Constitution of the Republic of Belarus; b) the absence of laws of the Republic of Belarus devoted to consolidating the legal foundations of this institution of civil society; c) the absence of a centralized system of subjects of public control in Belarus, first of all - their permanent types, similar to public chambers and councils operating in the Russian Federation (in particular, the Public Chamber of Russia); d) the presence in Belarus of numerous "white spots" in the system of objects of public control - types of public relations, as well as types of activities of public authorities that public control measures are not covered; e) weak powers of Belarusian subjects of public control, as well as bodies similar to them, for example, the All–Belarusian National Assembly; f) lack of a mechanism for the participation of public authorities (primarily central ones) in the procedure for the creation and operation of existing and promising varieties of subjects of public control; g) lack of legislation a detailed mechanism of interaction between public authorities and subjects of public control; h) the absence in the criminal and administrative legislation of the Republic of Belarus of legal norms on the possibility of bringing perpetrators to justice for countering the legitimate activities of representatives of subjects of public control.

3. The resolution of these problems will require the development and implementation of a system of measures, among which are: a) the incorporation in the Constitution of the Republic of Belarus, Institute of social control (its concepts, forms, principles, methods, types of events, list of subjects and objects, or an exhaustive list identifies their characteristics, mechanism of interaction of subjects of public control of public authorities, and other objects of social control); b) a system of law on public control in the Republic of Belarus based on the experience of the functioning of similar legislation in the Russian Federation for 20 years, which includes all public authorities, as well as any legal entity whose activities are local acts and decisions affect the rights, freedoms and legitimate interests of citizens of Belarus, and numerous non-governmental organizations (other non-profit organizations); C) the establishment of a system of subjects of public control at the head of the Public chamber of the Republic of Belarus; d) the vesting of the existing and prospective subjects of public control of real powers of control over the activities, acts and decisions of public authorities and other bodies and organizations that implement public powers (for example, trade unions in the country - right organization of audits, use of state budget funds, provided by private business entities within the framework of implementation of state order); d) elimination in the system of public control of the Republic of Belarus "white spots" of public relations, as well as activities of public authorities that are not covered with the activities of public control; e) securing in criminal and administrative law on the system of measures of legal responsibility (including imprisonment) for persons impeding the lawful activities of representatives of the subjects of public control); g) approval of the legislation of the Republic of Belarus, on the one hand, the mechanism of interaction and cooperation of public authorities with the subjects of public control, but on the other hand, the forms of participation of public authorities in the formation of subjects of public control.