International cooperation of subjects of public control: towards the formulation of the problem

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 organization and implementation of public control in the Russian Federation are widely studied in the works of L. A. Spector, ^{[3, pp. 186-188; 4, pp. 194-196]} V. V. Grib, ^{[9, pp. 3-6; 10, pp. 3-13]} A. I. Yastrebova, ^{[26, pp. 48-51]} as well as a number of other authors. At the same time, a number of studies by E. V. Berdnikova, ^{[1, pp. 6-9]} N. D. Buberbaeva ^{[2, pp. 29-32]} I. I. Ekadumova, ^{[13, pp. 26-32]} T. D. Zavialova, ^{[13, pp. 111-121]} S. V. Kuzyakin, ^{[16, pp. 79-83]} E. B. Mikhlina, ^{[19, pp. 86-89]} R. V. Puzikova, ^{[21, pp. 142-150]} V. A. Sukhanova, ^{[22, pp. 42-46]} N. I. Uzdemaeva, ^{[23, pp. 133-138]} A. B. Sherimbayeva, ^{[14, pp. 154-158]} E. E. Khokhlova, ^{[24, pp. 111-121]} as well as many others It is devoted to the role of international cooperation in the development of various institutions of civil society in our country. At the same time, the proportion of studies devoted to modern problems and prospects of participation of Russian subjects of public control in international cooperation activities seems to be insufficient, which was the reason for the choice of the topic of this scientific research.

The main text.

The Constitution of the Russian Federation has consolidated the legal status of the multinational people of Russia as the bearer of sovereignty and the only source of power in the state, exercising its powers both directly (in particular, through the institutions of free elections and a referendum) and indirectly (for example, through the activities of numerous public authorities). However, the constitutional principles of democracy and the participation of citizens of the Russian Federation in the management of state affairs need a system of legal guarantees, among which are, in particular: the presence of a complex system of checks and balances, through which public authorities balance each other, exercising control over the mechanism of formation and functioning; the presence of constitutional control bodies, the most important of which are the institution of the head of state, which is the guarantor of the Constitution, human and civil rights and freedoms, and the Constitutional Court of the Russian Federation as a body of constitutional justice; the prohibition enshrined in the Basic Law of the country, under threat of bringing to legal responsibility for the seizure of power, misappropriation and retention of authority by any public authority or its official a person; a system of civil society institutions, the most important of which is the institute of public control.

This institution of civil society in Russia was established relatively recently (when the Public Chamber of the Russian Federation was established and a Federal law regulating its organization and activities was adopted in 2005), but it was preceded by a rich history of functioning in the USSR (and the RSFSR as a union republic) of the Institute of People's control of power, which, as we noted earlier In the conducted research, ^{[5, pp. 127-130; 6, pp. 199-202]} despite criticism regarding its dependence on party organs (CPSU), it was highly effective and efficient in combating certain categories of crimes (for example, theft of socialist property).

The organization and implementation of public control measures is carried out by numerous of its subjects. At the same time, citizens of the Russian Federation, public associations and other non-governmental non-profit organizations can directly participate in the organization and conduct of these events.

During its functioning, the subjects of public control come in numerous relationships, which can be divided into several types: a) with the public authorities in the formation of the subject of social control (update, its composition, the introduction of new members, etc.); b) public authorities, state and municipal organizations, and other bodies and organizations under the Federal laws of certain public powers (whose, activity, acts and decisions serve as objects of public control); C) citizens and public associations (in other non-profit organizations) when the latter are invited to participate in the organization and specific activities of public control; g) and public authorities (in accordance with part 2 of article 16 of the Federal law of 21.07.2014 № 212-FZ "About bases of public control in the Russian Federation"), with responsibility for the implementation of state control (supervision) and municipal control over the activities of entities that are subject to public scrutiny, and in connection with which the public authorities of the subjects of public control send the final documents based on the results of public control (and by results of which consideration the above-named public authorities are required to provide reasonable answers); d) with the judicial authorities, which on the basis of paragraph 7 of part 1 of article 10 of the aforementioned Federal law, the subjects of public control has the right to apply for protection of the rights of an indefinite number of persons, the rights and lawful interests of public associations and other non-profit organizations in the cases stipulated by the Federal laws (in particular, if in the course of events of public control was revealed violations of the rights and legitimate interests); e) with other subjects of public control in the establishment of associations and unions of subjects of public control, as well as joint activities (on the basis of article 17 of the above Federal law); W) with higher subjects of public control at their formation (e.g., the formation of the Public chamber of the Russian Federation, when part of its members are elected by the public chambers of the constituent entities of the Russian Federation on the basis of article 8 of the Federal law dated 04.04.2005 № 32 "On the Public chamber of the Russian Federation"); z) with the inferior subjects of public control, for example, in the process of participation (such a possibility, in particular, clips for members of the Public chamber of the Russian Federation article 20 of the above Federal law); and) with foreign and international legal entities in the course of organization and implementation of international cooperation.

The formulation and analysis of the problems of the organization and implementation of the last kind of relations of Russian subjects of public control is the subject of this scientific research.

It seems that subjects of public control in the Russian Federation can enter into the above-mentioned relations for the organization and implementation of international cooperation in several forms.

Firstly, subjects of public control, in particular, the Public Chamber, as noted by a number of authors, ^{[11, pp. 32-40; 12, pp. 13-16]} can participate in numerous international scientific and practical conferences, symposiums, seminars, etc., devoted to the problems of organizing and exercising control of civil society over the mechanism of public the authorities, as well as the optimization of these processes. These events can be held either on the territory of the Russian Federation on the initiative of the Public Chamber of the country, or public authorities (with the participation of representatives of various institutions of civil society, politicians, government and public figures, etc.).

Secondly, subjects of public control can participate in various international associations and unions of subjects of public control (for example, whose activities are devoted to monitoring the provision of human rights in places of forced detention, as well as assistance to persons in places of forced detention). The legal basis for this right of subjects of public control is the provisions of the International Covenant on Civil and Political Rights of 12/16/1966, which enshrines the right of citizens and their associations "to freedom of association with others, including the right ... to join such to protect their interests." ^[18]

Thirdly, subjects of public control belonging to other organizational structures of public control (paragraph 4 of Part 2 of Article 9 of Federal Law No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation") may participate in the organization and activities of various international non-governmental organizations whose activities are aimed, in particular, at development of civil society institutions. For example, trade unions, which can be attributed to a variety of other organizational structures of public control, on the basis of paragraph 5 of Article 2 of Federal Law No. 10-FZ dated 12.01.1996 "On Trade Unions, their rights and guarantees of activity" have the right to cooperate with trade unions of other states, join international trade unions and other associations and organizations, conclude agreements with they have contracts and agreements. In particular, the Federation of Independent Trade Unions of Russia (hereinafter also - FNPR) actively participates in the work of a number of international non-governmental organizations, for example, the International Trade Union Confederation. ^[17]

Fourthly, subjects of public control belonging to other organizational structures of public control, for example, social movements, numerous non-governmental organizations specializing in transparency (at the same time, the terms "transparency" and "participation" are used in most foreign countries as an analogue of the designation of civil society institutions specializing in the control of the apparatus of public power and according to the analysis of international legislation, in particular, documents regulating the activities of the United Nations Office on Drugs and Crime, ^[8] they can participate in international cooperation using the platforms of the United Nations and other international governmental organizations established by the United Nations, or on the basis of international government agreements.

In particular, according to the previously mentioned Guide "Civil Society for Development: Opportunities within the framework of the United Nations Convention against Corruption", developed and published by the United Nations Office on Drugs and Crime, civil society organizations (this term is detailed and actively used in a number of international conventions, for example, the United Nations Convention against Corruption of 31.10.2003) ^[15] Various international platforms can be used within the framework of the functioning of this UN Office.

Thus, within the framework of the work of the United Nations Office on Drugs and Crime, there are many platforms for cooperation for civil society actors (including subjects of public control). Among the main ones are: the International Anti-Corruption Academy; the International Anti-Corruption Conference. The activities of the International Anti-Corruption Academy are primarily devoted to assistance in the training of highly qualified personnel, including for civil society institutions that are able to effectively combat corruption and other crimes in the activities of numerous public authorities and local governments. In turn, within the framework of the International Anti-Corruption Conference, a constant dialogue is held between various actors whose activities are aimed at combating corruption, in order to exchange modern ways, forms, methods, principles, types of measures within the framework of this anti-corruption.

 However, the organization and implementation of international cooperation by Russian subjects of public control are associated with numerous problems, among which the following can be distinguished:

Firstly, a very significant problem hindering the organization and implementation of the above-mentioned cooperation of subjects of public control is the lack of formalization of the institution of public control in the Constitution of the Russian Federation, in connection with which its status is regulated exclusively at the level of current legislation. This circumstance reduces the authority and importance of this institution of civil society in the eyes of the population and government officials. In addition, it is not at all clear what the forms, types of events, as well as the limits of interaction and cooperation of subjects of public control at the international level are. In this regard, it seems necessary to incorporate the institution of public control into the Basic Law of the country, detailing the concept, principles, forms and methods of public control, as well as the mechanism of its interaction with national, foreign and international legal entities.

Secondly, a significant problem that makes it difficult to optimize the processes of international interaction and cooperation of Russian subjects of public control is not the consolidation in the legislation on public control (in particular, in Federal Law No. 212-FZ dated 07/21/2014 "On the Foundations of Public Control in the Russian Federation"), the legal foundations governing the grounds, limits and forms the above-mentioned cooperation.

At the same time, an analysis of various drafts of the above–mentioned Federal Law, for example, a draft developed by the Council under the President of the Russian Federation for the Development of Civil Society and Human Rights (hereinafter also referred to as the Council) together with the Public Chamber of the Russian Federation (approved by the decision of the Council on 05/14/2013, version dated 02/07/2014), ^[20] shows that they paid close attention to issues of international cooperation of subjects of public control.

In particular, article 13 "International cooperation" of this draft states that subjects of public control not only have the right to international cooperation in the field of public control, but also public authorities and local governments were charged with the obligation to assist subjects of public control in organizing international cooperation in the field of public control in order to improve its effectiveness and the exchange of experience. ^[20]

Moreover, in this draft of the above-mentioned Federal Law, the issues of the creation of associations and unions by subjects of public control were attributed to the problems of self-regulation in the field of public control. In the current version of Federal Law No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation" (Article 17), the creation of associations and unions of subjects of public control is actualized, in fact, as the main form of interaction and cooperation. Nothing is said about the possibility of international cooperation in this Federal Law at all! This circumstance, moreover, contradicts the established practice of international cooperation of the Public Chamber of the Russian Federation by the time of the adoption of the above-mentioned Federal Law in 2014, which actively cooperated with foreign civil society institutions in order to increase the effectiveness of public control, whose activities were aimed at organizing and exercising civil society control over the apparatus of public power, as well as other objects exercising separate public powers.

In this regard, it seems necessary to supplement Federal Law No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation" with Article 17.1 "International cooperation" as follows:

"1. Subjects of public control have the right to carry out international cooperation in the field of public control in order to increase its effectiveness and exchange experience.

2. State authorities and local self-government bodies are obliged to assist subjects of public control in organizing international cooperation in the field of public control."

In addition, the law on public control should develop and consolidate the grounds, limits and forms of international cooperation of subjects of public control.

For example, in our proposed article 17.1 "International cooperation", paragraphs 2-4 can be devoted to the grounds, limits and forms of international cooperation of subjects of public control:

"3. The norms of international law, the norms of interstate agreements of the Russian Federation in the field of protection of human and civil rights and freedoms, as well as the norms of treaties and agreements concluded by subjects of public control in order to comply with the above-mentioned norms may act as grounds for international cooperation of subjects of public control.

4. The above-mentioned agreements and agreements concluded by subjects of public control, as well as the practice of their implementation, should not contradict the Constitution of the Russian Federation, create threats to national security, as well as the mechanism for the implementation and protection of human and civil rights and freedoms, the rights and legitimate interests of public associations and other non-governmental non-profit organizations.

5. Forms of international cooperation of subjects of public control may include, in particular: participation in the work of international associations and unions of subjects of public control; participation in the work of the United Nations, as well as institutions and organizations created by it, whose activities are aimed at the development of civil society in general, as well as the institute of public control in particular; organization and conducting international scientific, scientific and practical conferences, symposiums, seminars aimed at sharing experience in the organization and functioning of public control; other forms of international cooperation of subjects of public control that do not contradict part 4 of Article 17.1 of this Federal Law."

Thirdly, a very significant problem hindering the organization and implementation of the above-mentioned cooperation of subjects of public control is, in our opinion, the weak use of positive foreign experience of cooperation between subjects of civil society, whose activities are aimed at organizing and exercising control over the apparatus of public power. In this regard, it seems necessary to instruct the Public Chamber of the Russian Federation, together with the Ministries of Justice and Foreign Affairs, to analyze the foreign experience of international cooperation of civil society institutions, whose activities are aimed at organizing and exercising control over the apparatus of public power (with subsequent adaptation and implementation into practice of the activities of Russian subjects of public control of appropriate positive forms, methods and types the specified cooperation).

Fourthly, a significant problem that makes it difficult to optimize the processes of international interaction and cooperation of Russian subjects of public control is the weak financing of Russian subjects of public control, which makes such interaction and cooperation difficult. In this regard, it seems necessary, as we noted in previous studies, ^{[7, pp. 196-200]} to instruct the Government of the Russian Federation to develop and adopt federal programs dedicated to the development of the organizational, legal, material and technical base of subjects of public control.

Fifthly, in our opinion, a very significant problem hindering the organization and implementation of the above-mentioned cooperation of subjects of public control is the risk of using international cooperation of Russian subjects of public control to undermine the national security of the Russian Federation (as we mentioned earlier in this article). In this regard, in addition to the previously proposed amendments and additions to the legislation on public control, it seems necessary to consolidate in the criminal and administrative legislation of the Russian Federation measures of increased criminal and administrative liability for representatives of subjects of public control if their activities in the process of organizing and implementing international cooperation of Russian subjects of public control contradicted the Constitution of the Russian Federation, created threats to national security, as well as the mechanism for the implementation and protection of human and civil rights and freedoms, the rights and legitimate interests of public associations and other non-governmental non-profit organizations.

Conclusion.

In the course of our scientific research, we have made a number of conclusions, among which the following can be distinguished:

1. The Institute of Public Control in the Russian Federation acts as the most important legal guarantee for the implementation, protection and protection of the constitutional principles of democracy and the participation of Russian citizens in the management of state affairs.

2. The full-fledged development of the specified institution of civil society, increasing the effectiveness of the mechanism for organizing and implementing public control measures is impossible without organizing and conducting interaction and cooperation of subjects of public control with other subjects of law, the most important of which is international cooperation of subjects of public control.

3. At the same time, as forms of such cooperation of subjects of public control, one can distinguish, for example: their participation in international conferences, symposiums; participation in international associations and unions of subjects of public control; participation of certain types of public associations in the work of international non-governmental organizations whose activities are aimed at the development of civil society institutions, etc.

4. The organization and implementation of international cooperation by Russian subjects of public control are associated with numerous problems, among the main ones: the lack of formalization of this institution of civil society in the Constitution of the country; the failure to consolidate in the legislation on public control the legal foundations governing the grounds, limits and forms of the above-mentioned cooperation; weak use of positive foreign experience of cooperation of subjects civil society, whose activities are aimed at organizing and exercising control over the apparatus of public power; weak financing of Russian subjects of public control; the risk of using international cooperation of Russian subjects of public control to undermine the national security of the Russian Federation.

5. The resolution of the above-mentioned problems will require the development and implementation of a system of measures, including amendments and additions to the Constitution of the Russian Federation, legislation on public control, the Criminal Code of the Russian Federation, the Code of Administrative Offences of the Russian Federation.