On the impact of international law norms on the development of Russian legislation on public control

Malinovskii Oleg Nikolaevich ORCID: 0000-0001-6541-9046 PhD in Law Associate Professor; Department of Civil Procedure and International Law; Kuban State University Head of the Department; Kuban State University 350040, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149 niipgergo2009@mail.ru Other publications by this author     Goncharov Vitalii Viktorovich PhD in Law Associate Professor; Department of Civil Procedure and International Law; Kuban State University 350040, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149 niipgergo2009@mail.ru Other publications by this author

Petrenko Elena Gennad'evna PhD in Law Associate Professor; 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

Introduction.

Modern problems of the organization and implementation of public control in the Russian Federation are widely studied in the works of N. A. Beleshev, ^{[2, pp. 12-13]} E. G. Petrenko, ^{[1, pp. 3454-3463; 6, pp. 76-79; 7, pp. 78-91]} S. M. Zubarev, ^{[9, pp. 28-37]} T. N. Mikheeva, ^{[10, pp. 26-29]} E. E. Nikitina, ^{[12, pp. 22-36]} A. A. Spiridonova, ^{[15, pp. 33-45]} as well as a number of other authors. At the same time, in the works of E. V. Berdnikova, ^{[3, pp. 6-9]} V. V. Goncharov, ^{[4, pp. 94-99; 5, pp. 80-91]} T. D. Zavyalova, ^{[8, pp. 111-121]} O. V. Nezhenets, ^{[11, pp. 230-235]} V. M. Palchenkova, ^{[13, pp. 51-56]} E. D. Kuleshova, ^{[14, pp. 86-89]} as well as some other scientists, considerable attention is paid to the international legal aspects of the organization and functioning of this institution of civil society in Russia and in the world. However, the proportion of studies devoted to the analysis of the main directions of the influence of international legislation on the development of the domestic legal framework of public control seems insufficient. In addition, it is of particular interest to study the degree of compliance of Russian legislation on public control with the international legal framework for regulating the possibility of civil society (people, population) control over the apparatus of public administration in individual national states. These circumstances determine the choice of the topic of this study, the purpose of which is not only to analyze the main directions of the impact of international law on the trends in the development of Russian legislation on public control, but also to study modern problems related to the organization and functioning of the institute of public control in Russia, which are caused by ignoring the main trends in the development of international legislation in the field of human rights and freedoms as well as civil society (with the development of a system of proposals to resolve these problems). Achieving the above-mentioned goal of scientific research is possible by solving a system of scientific tasks, among which the following can be distinguished: 1) analysis of the origins of the institution of public control in the Russian Federation represented by the Institute of People's Control of Power in the USSR, the functioning of which in a certain way affected the norms of international legislation formed following the Second World War (in the UN Charter, in numerous international covenants on civil, political, economic, social and cultural human rights, in particular other norms of international legislation); 2) analysis of current trends in the development of international legislation, which forms the international legal framework in the field of human rights and freedoms, as well as civil society; 3) formalization and research of modern problems of the organization and functioning of the institute of public control in Russia, which are caused by ignoring the main trends in the development of international legislation in the field of human rights and freedoms; human freedoms, as well as civil society; 4) development and justification of a system of measures to resolve these problems.

Research methods and methodology.

The work uses a number of methods of scientific cognition, including: formal-logical; historical-legal; comparative-legal; statistical; sociological; method of analyzing specific legal situations.

The empirical basis of the study was made up of international normative legal acts, including the UN Charter, the Universal Declaration of Human Rights of 12/10/1948, the International Covenant on Civil and Political Rights of 12/16/1966, the International Covenant on Economic, Social and Cultural Rights of 12/16/1966, other international documents, Russian legislation on public control, documents on the practical activities of public entities control in the Russian Federation, their interaction with each other, as well as with foreign and international actors of civil society and public control.

The main text.

The modern system of international law acquired general outlines after the end of World War II, when the United Nations was formed, the UN Charter was adopted, the structure of international governmental organizations was formed, and the fundamental principles of international law were consolidated.

The most important role in these processes was played by the USSR, which acted as the founding state of the United Nations (the same right was granted to the three republics most affected during the Great Patriotic War within the USSR - the RSFSR, the BSSR, the Ukrainian SSR). The USSR was also granted the legal status of a permanent member of the UN Security Council (along with the United States, Great Britain, France and China).

This circumstance allowed the USSR to have a serious impact on the content of the fundamental documents of the United Nations, primarily on the UN Charter, the Universal Declaration of Human Rights, as well as the set of international covenants adopted at the UN General Assembly on civil, political, social, economic and cultural rights and freedoms of man and citizen.

The USSR Constitution of 1936, as well as Soviet legislation at the time of the creation of the United Nations and the adoption of the UN Charter, was one of the most democratic in the world. First of all, the legislation of the USSR established a broad system of personal civil, political, social, economic, cultural and other rights of Soviet citizens. Soviet legislation was one of the first to equalize the rights of men and women, and secured a significant number of socio-economic guarantees for the latter.

The Soviet Constitution declared a whole system of political rights of the Soviet people related to the formation of a system of government bodies, as well as the direct participation of the people in the management of the affairs of the Soviet state (for example, in the role of people's assessors, through the functioning of the institute of recall of deputies of all levels of councils, etc.).

The USSR insisted on the greatest democracy of this fundamental international legal act when drafting the UN Charter. As a result, it became possible to destroy and destroy the system of slavery in a number of states, the destruction of the institution of colonies and colonial dependence, the spread of civil, political, social, economic and cultural rights and freedoms to the broad masses of the population in all UN member states.

A significant role in the democratization of Soviet society and the state was played by the institution of people's control of power, through which Soviet citizens had the opportunity to to control the activities, acts and decisions of not only government bodies, but also legal entities (Soviet enterprises, institutions and organizations of any organizational and legal forms and forms of ownership).

The existence of such an institution of civil society in the USSR was reflected in international legislation.

However, in the last years of the USSR's existence, the party and economic nomenclature, which was burdened by people's control over its activities, achieved a number of populist methods to eliminate the institution of people's control of power.

And until 2005, in the Russian Federation, in fact, there was no regulatory legal act at the federal level at the federal level, which would provide for the possibility of public control over the apparatus of public power in the country.

In 2004, Russian President Vladimir Putin initiated the restoration of the right of the population to control power and the Federal Law of 04.04.2005 "On the Public Chamber of the Russian Federation" was adopted, which marked the beginning of the construction of this institution of civil society in the country.

Today, the norms of international law have an important impact on the development of legislation on public control.

Firstly, the UN Charter, the Universal Declaration of Human Rights and the international Covenants on the consolidation of political, civil, social, economic and cultural rights and freedoms of man and citizen contain a system of fundamental basic legal principles that were enshrined in the Constitution of the Russian Federation in 1993 (first of all, the principles of democracy and public participation in management of state affairs). In particular, article 25 of the International Covenant on Civil and Political Rights of 12/16/1966 is devoted to this.

Secondly, the UN Charter and Article 1 of the above-mentioned International Covenant have secured for the peoples of the world the right to self-determination and the establishment of their political status in a free regime. As a result, the constitutions of many states of the world have secured the highest legal status for the people. The Constitution of Russia, in particular, has secured for the multinational people of the country the status of the bearer of sovereignty and the only source of power in the country.

Thirdly, article 16 of the International Covenant on Civil and Political Rights of 12/16/1966 indicated that civil and political human rights, according to the norms of international law, act as basic guarantees allowing the realization, protection, protection and observance of all other human rights and freedoms (in particular, social, cultural, economic, etc.). The UN member states, in turn, are obliged to promote and respect the above–mentioned political rights and freedoms of man, including the rights to democracy and people's participation in the management of state affairs (both through their representatives and directly through direct forms of democracy). At the same time, citizens independently, or as part of collectives, can seek to promote the observance and realization of these rights and freedoms.

Fourthly, the population of any country, according to the norms of international law, for example, article 22 of the above-mentioned International Covenant, has the right individually or by uniting in any association (in particular, in trade unions) to protect the above-mentioned rights and freedoms by any means. The population can defend these rights and freedoms both by monitoring the authorities and by requesting and receiving any information that affects or may affect the processes of realization, protection and protection of their rights, freedoms and legitimate interests.

Fifthly, the norms of international law have established a system of prohibitions for public authorities to violate and interfere with the processes of realization by the population of the above-mentioned rights, freedoms and legitimate interests. At the same time, the Universal Declaration of Human Rights in its preamble enshrined the so-called right of the people to revolt against tyranny and oppression, in the event that the above-mentioned system of prohibitions is not enforced, or if elections and referendums are falsified in any country, that is, the population is eliminated from the procedure of exercising power through a system of direct and indirect forms of democracy.

The Institute of Public Control in Russia is organized and operates with certain problems, some of which are due to the fact that legislation on public control does not always adhere to the dominant trends in the development of international legislation in the field of human rights and freedoms, as well as civil society.

Among these problems are the following:

Firstly, unlike international legislation, Russian legal norms on the institution of public control are not fixed in the most status-oriented normative legal acts. And if the legal foundations of civil society and the possibilities of its control over power in one form or another are contained in the fundamental documents of the United Nations (first of all, the UN Charter, the Universal Declaration of Human Rights of 12/10/1948, the International Covenant on Civil and Political Rights of 12/16/1966, the International Covenant on Economic, Social and Cultural Rights of 12/16/1966, etc.), then the Constitution of Russia does not mention anything about civil society, not about public control. The elimination of this problem is seen in the formalization of this institution of civil society (and its other institutions) in the Constitution of the country.

Secondly, Russian legislation (unlike the norms of international law, and unlike the norms of Soviet legislation on people's control of power), in fact, did not assign any real powers to subjects of public control that would allow them to promote, respect and exercise human and civil rights and freedoms in the sphere of control over the apparatus of public power, as well as its observance, assistance in the implementation of the entire array of constitutional principles, as well as the rights, freedoms and legitimate interests of citizens and numerous non-governmental non-profit organizations in the country. The solution to this problem is seen in securing a set of real effective powers for subjects of public control (for example, to suspend acts and decisions of public authorities, state and municipal organizations, other bodies and organizations exercising certain public powers if the latter violate the above-mentioned principles, rights, freedoms and legitimate interests, up to decisions on the merits of this issue by the relevant judicial authorities).

Thirdly, Russian legislation on public control does not explicitly prohibit public authorities from interfering with the legitimate activities of subjects of public control, which reduces their independence and independence to a minimum. The solution to this problem is seen, on the one hand, in changing the mechanism of formation of subjects of public control, from which any forms of participation of public authorities in these processes should be excluded. On the other hand, legislation should prohibit the possibility for public authorities to interfere under threat of bringing officials of these authorities to legal responsibility in the legitimate activities of subjects of public control.

Fourth, a significant problem in Russia is the underdevelopment of various forms of citizens' associations for participation in the mechanism of organization and implementation of the institute of public control. Subjects of public control should be given the right to participate in international associations and unions of subjects of public control (subjects of civil society) directly in Federal Law No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation". This will strengthen the institution of public control in Russia.

Conclusion.

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

1. The formation and development of the modern system of international law (first of all, the UN Charter, the Universal Declaration of Human Rights of 12/10/1948, the International Covenant on Civil and Political Rights of 12/16/1966, the International Covenant on Economic, Social and Cultural Rights of 12/16/1966, etc.) was significantly influenced by Soviet legislation consolidating the system of rights and freedoms Soviet citizens, as well as the Institute of People's Control in the USSR, which largely determined the democratic vector in the development of international law to this day.

2. The liquidation of the institute of public control of power in the last years of the USSR, as well as the fact that the need to consolidate the institute of public control in the legislation of the Russian Federation was not immediately realized, created certain difficulties in creating a system of legal guarantees for the implementation, protection and protection of the entire system of constitutional rights, freedoms and legitimate interests of citizens of the country, and also non-governmental non-profit organizations.

3. International law has largely determined the main directions of development of the legislation of sovereign Russia (especially in terms of consolidating and developing the system of rights, freedoms and legitimate interests of man and citizen). At the same time, the norms of international law have an important influence on the development of the law on public control by the fact that: a) in international law provides the fundamental legal principles at the basis of the Russian Constitution (including the principles of democracy and people's participation in managing the Affairs of the state); b) international law establishes that the world's peoples right to self-determination and freedom to set their political status; C) international law establishes civil and political rights and freedoms of the population and legal status of the guarantees for the rest of the system of the rights and freedoms of the individual, which the public authorities are obliged to promote and respect, and citizens, in turn, have the right to obtain from them the promotion, observance and realization of these rights and freedoms; g) the rules of international law secured as legal safeguards for the rights and freedoms of the individual right of people to own, or together in various associations, primarily the trade unions to defend their rights and freedom by controlling the activities of public authorities, by receiving any information that may have an impact on the processes of implementation, enforcement and protection of the rights and freedoms of man and citizen; d) international law contains a prohibition for public authorities to take actions aimed at the destruction and humiliation of the aforementioned civil and political rights and freedoms of man and citizen, under the threat of the use of the population of their right to revolt against tyranny and oppression as a last resort.

4. The processes of organization and functioning of the public control system in the Russian Federation are associated with a number of problems caused by ignoring the main trends in the development of international legislation in the field of human rights and freedoms, as well as civil society: a) the legal foundations of public control are not enshrined in the fundamental normative legal act of Russia - its Constitution (unlike the international legal foundations of civil society, which permeate all fundamental international documents (the UN Charter, the Universal Declaration of Human Rights of 12/10/1948, the International Covenant on Civil and Political Rights of 12/16/1966, the International Covenant on Economic social and cultural rights dated 12/16/1966, etc.); b) Russian legislation on public control does not contain real powers of subjects of public control that would allow protecting, restoring violated rights, freedoms and legitimate interests of a person and citizen, as well as non-governmental non-profit organizations (in the case, for example, inaction of judicial authorities, signs of tyranny and oppression of the population by any public authorities and their officials); c) the legislation on public control does not contain an unconditional prohibition of public administration bodies to interfere in the legitimate activities of subjects of public control; d) in the above-mentioned legislation, the institution of creation and functioning of associative forms of interaction of the population in the exercise of their right to organize is poorly developed and the implementation of public control.

5. As a mechanism for resolving these problems, we propose the organization and implementation of the following measures, among which are: a) the consolidation of the institution of public control in the Constitution of the Russian Federation as a legal guarantee of the implementation, protection and protection of the entire system of constitutional principles (first of all, democracy and participation of Russian citizens in the management of state affairs) and the entire system of rights, freedoms and legitimate interests of a person and citizen, as well as non-governmental non-profit organizations; b) securing real powers for subjects of public control (up to the suspension of decisions and acts of legal entities, subordinate normative legal acts of public authorities that violate human rights, freedoms and legitimate interests and before the issue is resolved on the merits by the relevant court); c) fixing in the legislation on public control the unconditional prohibition of bodies to interfere in the legitimate activities of subjects of public control under threat of criminal and administrative liability (with the addition of appropriate administrative and criminal legal structures of the Criminal Code of the Russian Federation, the Code of Administrative Offences of the Russian Federation, relevant regional legislation); d) the development of a system of subjects of public control in the legislation on public control, and as well as the forms of their interaction (through the creation of various associations, including through the participation of subjects of public control in the processes of creation, activity and development of international associations and unions of subjects of public control and subjects of civil society).