Control (supervisory) activities in the field of higher education in the context of a risk-based approach: problems of law enforcement and prospects for development

Kotsyurko Elena Petrovna ORCID: 0009-0008-4395-2200 Associate Professor of the Center for Educational Engineering, Yugra State University 628012, Russia, Khanty-Mansi Autonomous Okrug, Khanty-Mansiysk, Chekhov str., 16 Kotsyurkoe@gmail.com

The modern development of Russian society and the state has raised many new questions for the science of administrative law. One of the topical issues was the scientific support of the ongoing reform of control (supervisory) activities aimed at forming a new system of administrative and legal regulation of state control (supervision), designed to provide regulatory regulation of the unified legal regime for assessing and establishing mandatory requirements, updating the risk management model, as well as strengthening the role of prevention, and including the Federal Law dated 31.07.2020 "On State Control (Supervision) and Municipal Control in the Russian Federation" No. 248-FZ [Federal Law No. 248-FZ of July 31, 2020 "On State Control (Supervision) and Municipal Control in the Russian Federation" // Official Internet Portal of Legal Information (www.pravo.gov.ru ) July 31, 2020 No. 0001202007310018] (hereinafter – the Law on State Control (Supervision)) and Federal Law No. 247-FZ of 31.07.2020 "On Mandatory Requirements in the Russian Federation" [Federal Law No. 247-FZ of July 31, 2020 "On Mandatory Requirements in the Russian Federation" // Official Internet Portal of Legal Information (www.pravo.gov.ru ) July 31, 2020 No. 0001202007310002]. In the current period of development of administrative science, associated with the revision of many concepts and concepts formed in Soviet times, the scientific understanding of state control and supervision has been continued in scientific research as well-known administrative scientists, in particular A.F. Nozdrachev ^[1], S. M. Zubarev ^[2], A.V. Martynov ^[3], and young researchers, for example, E. N. Smirnova ^[4], D. S. Fesko ^[5]. It should be noted that there are currently no thorough scientific studies of the administrative content of state control (supervision) in the field of education. The analysis of various aspects of the organization and implementation of state control and supervision in the field of education is presented in the dissertation research of B. M. Frolov [Frolov B. M. State control and supervision in the field of education in the Russian Federation: federal and regional aspects: dis...cand. jurid. sciences': 12.00.14. / Frolov B. M. Voronezh, 2017. 258 p.]. However, the scientific work of the scientist is more focused on the study of the administrative content of state control (supervision) in the field of education through the prism of the separation of powers of control (supervisory) bodies in the context of federal and regional levels and understanding their legal statuses, in addition, some the scientist's judgments require scientific speculation, taking into account the formation of a new model of control (supervisory) activity, the updating of key regulations and the ongoing administrative reform. It seems that the peculiarities of administrative and legal regulation in the field of education in the Russian Federation in the context of current transformational processes in the higher education system put forward new requirements for the assessment and control of the activities of educational organizations, which poses new challenges to the science of administrative law related to the scientific understanding of existing problems of law enforcement, possible development prospects and the development of scientifically based recommendations on to improve the organization and implementation of control (supervisory) activities in the field under study.

Article 93 of Federal Law No. 273-FZ of December 29, 2012 "On Education in the Russian Federation" (as amended by Federal Law No. 170-FZ of June 11, 2021) [Federal Law No. 273-FZ of December 29, 2012 "On Education in the Russian Federation" // Official Internet Portal of Legal Information (www.pravo.gov.ru ) December 30, 2012] (hereinafter referred to as the Law on Education) leveled the previously existing species classification according to the subject criterion, currently the state control (supervision) in the field of education as a normative definition includes several types, while educational activity acts as an object exclusively of federal state control (supervision) in the field of education. Based on the established powers of federal state authorities in the field of education, enshrined in Article 6 of the Law on Education, the authorized control (supervisory) body is one for the studied sphere of higher education and is represented by the Federal Service for Supervision in the Field of Education and Science of the Russian Federation (hereinafter – Rosobrnadzor).

The core of the reform of the system of state control (supervision) has certainly become the introduction of a risk-based approach, manifested primarily in the proportionality of the actions of control (supervisory) bodies in relation to the choice of the type, intensity and content of control (supervisory) and preventive measures. The period of regulatory recognition of the risk-based approach to education at the federal level cannot be considered long. In the field under study, the date of the beginning of the implementation of control (supervisory) functions from the position of their risk-oriented orientation is the date of entry into force of the Law on State Control (Supervision) (01.07.2021). Pursuant to the general regulatory provisions of Chapter 5 of this Law, paragraph 6 of the Regulations on Federal State Control (Supervision) in the field of education, approved by Decree of the Government of the Russian Federation No. 997 of June 25, 2021 [Decree of the Government of the Russian Federation No. 997 of June 25, 2021 "On Approval of the Regulations on Federal State Control (Supervision) in the field of education" // Official Internet portal of legal information (www.pravo.gov.ru ) June 29, 2021] (hereinafter referred to as the Regulation on Control (Supervision)), three categories of risk of harm (damage) (hereinafter referred to as risk categories) are established, which are assigned based on two independent groups of criteria, namely the severity of potential negative consequences of possible non–compliance with mandatory requirements and the likelihood of their non-compliance. Actually, educational activities (with the exception of some of its types), based on the assessment of the severity of possible consequences, are classified as low risk. The category of medium risk is established in the presence of one of the probability criteria formulated as the presence of a substantiated complaint (appeal) against the activities of an educational organization and bringing an educational organization to administrative responsibility for violations specified in the list. At the same time, it is determined that with the simultaneous presence of two specified probability criteria, a high-risk category is assigned.

When studying the presented criteria, questions inevitably arise, the resolution of which is important in their practical implementation within the framework of the formation of the practice of law enforcement of these norms. In particular, whether the presence of both an appeal and bringing an educational organization to administrative responsibility for one fact of violation will be considered as two of the available probability criteria, which can significantly affect the choice of the risk category and, as a consequence, the intensity of control (supervisory) measures against the educational organization. During the analysis of the probability criteria, the absence of facts of violation of mandatory requirements is seen, which did not entail bringing to administrative responsibility and (or) did not cause treatment in accordance with the established procedure. At the same time, violation of mandatory requirements does not always constitute an administrative offense and may entail the use of other measures of administrative and legal coercion, depending on the nature and severity of the violations committed, including the issuance of prescriptions, suspension and cancellation of licenses, and others. It seems reasonable to take into account these violations as a parameter affecting the risk assessment of a particular educational organization.

Based on the content of the criterion for bringing an educational organization to administrative responsibility, a wide list of administrative offenses is seen, including general compositions, the object of which is public relations in the sphere of the established procedure for state (municipal) control and supervision, which in fact implies a "deterioration" of the risk category in the presence of an effective decree on the imposition of administrative punishment based on the results of control (supervisory) activity of any control body. In this regard, recognizing the multi-subjectivity of the composition of bodies that have a regulatory impact on the sphere of higher education as one of the features of its administrative and legal regulation, entailing a serious problem of redundancy of control (supervision) in the field under study, as well as starting from real examples of judicial practice, we consider important the questions that arise, how objectively reflects the risks associated with with the implementation of educational programs and the conduct of educational activities, failure to comply with the legal order of the control (supervisory) body within the prescribed period due to a number of violations caused by thickets on the slope and ridge of the dam body with herbaceous and woody vegetation [Resolution of the Arbitration Court of the North Caucasus District of January 13, 2021 No. F08-11734/20 in case No. A53-44992/2019 // ATP "Garant"], failure to take measures to eliminate the causes and conditions that contributed to the commission of an administrative offense, due to insufficient disinfection measures (current wet cleaning in living rooms, bathrooms, showers is carried out by the residents themselves and there are no disinfectants) [Resolution of the Fourth Arbitration Court of Appeal of December 2, 2020 No. 04AP-5782/20 in case No. A58-5633/2020 // SPS "Garant"], etc.

The problems of enforcement of the approved criteria are confirmed by the attempt to rank educational institutions of higher education undertaken by Rosobrnadzor in 2022. The head of Rosobrnadzor A. A. Muzaev 09.09.2022 approved the Lists of objects of federal state control (supervision) in the field of education for all three risk categories [Official website of Rosobrnadzor [website]. URL: https://obrnadzor.gov.ru/gosudarstvennye-uslugi-i-funkczii/7701537808-gosfunction/profilaktika-narushenij-obyazatelnyh-trebovanij/perechen-obektov-federalnogo-gosudarstvennogo-kontrolyanadzora-v-sfere-obrazovaniya-otnesennyh-k-kategoriyam-riska (accessed 21.08.2023)]. According to the results of the comparison, there are no positions in the high-risk list, 87 objects of control are classified as medium-risk, all other educational institutions are respectively considered objects of the low-risk category. Analyzing the list of medium-risk facilities, it can be concluded that this list includes some of the most reliable universities in the Russian Federation, leaders of numerous ratings on various parameters, including the quality of education and the demand for graduates (For example, the National Research University Higher School of Economics (No. 29), the Moscow State University M.V. Lomonosov" (No. 44), Bauman Moscow State Technical University (National Research University) (No. 74) and many others). The inclusion of these universities in such lists does not indicate the problems of a particular university and an increase in the risk of harm (damage) in their activities, but rather the correctness of the selected criteria, their objectivity and legality.

We share the opinion of scientists about the high potential of using a risk-based approach in the field of education, the implementation of which certainly ensures minimizing the risks of harm (damage) in this area, reducing the administrative burden, as well as increasing the importance of preventing violations of mandatory requirements ^{[6, p. 317]}. At the same time, we believe that the presented version of the criteria does not fully meet the requirements of Article 23 of the Law on State Control (Supervision) and it is necessary to continue rule-making activities to update the risk-oriented model to be applied in the field of education.

Without supporting separate scientific positions on the use of multiple point parameters ^{[7, pp. 210-211]}, we consider it reasonable to take into account the affiliation of educational institutions of higher education to one of the categories established by Article 24 of the Law on Education (leading classical, federal, national research, reference universities) when developing criteria for risk assessment. The analysis of the features of the model of legal regulation of the statuses of certain categories of educational organizations allows us to agree with the conclusions that there are no fundamental differences between these universities and the status of other educational organizations of this level in key positions ^{[8, p. 892]}, in particular on the issue of the organization and implementation of control (supervisory) activities in relation to these persons. In this regard, we believe that the proposals are justified in the context of the recognition of a risk-oriented approach on the need to take into account the peculiarities of these universities as special educational institutions, "with which the state and society have hopes for the accelerated development of Russian education and science" ^{[8, p. 888]}, which should be the basis for ranking universities according to the corresponding risk groups, and will act as an additional stimulating factor for obtaining and retaining such a status. It also seems promising to use as an additional criterion a parameter due to the different subordination of educational institutions of higher education that affect the different intensity of departmental control, which can also be taken into account when ranking objects of state control (supervision) by risk categories.

We believe that the foreign experience of the Republic of Kazakhstan on the introduction of a risk-oriented model of the organization of state control (supervision) in the field of education, the current criteria for assessing the degree of risk for the education system in terms of higher and postgraduate education, approved by a joint order of the Minister of Science and Higher Education and the Minister of National Economy of the Republic of Kazakhstan, deserves attention and requires scientific understanding. Science and Higher Education of the Republic of Kazakhstan dated December 1, 2022 No. 166 and the Minister of National Economy of the Republic of Kazakhstan dated December 2, 2022 No. 116 "On approval of risk assessment criteria and checklists for the education system, in terms of higher and postgraduate education" // IS "Reference Control Bank of the National Academy of Sciences of the Republic of Kazakhstan in electronic form" 8 December 2022]. This model is based on the attribution of control objects to different degrees of risk, depending on objective and subjective criteria for assessing the degree of risk. It is noteworthy that the determined subjective criteria correspond to the degree of violation, which has a variability from minor to severe. Of course, this system for calculating the degree of risk is quite complex, in addition, there are separate questions about the validity of determining a sample of control subjects, as well as the meaningful definition of objective criteria and their inclusion in the overall calculation of indicators, together it is necessary to positively note the attempt to rank criteria by their degree of "severity", as well as the use of calculation coefficients, since such differentiation in a sense, it personalizes the approach to an educational organization, which is certainly the basis of a risk-based model of control (supervision).

Problematic issues of ranking objects of control (supervision) by risk categories are associated with the practical implementation of regulatory definitions on the assessment of the integrity of controlled persons (Part 7 of Article 23 of the Law on State Control (Supervision)). Prospects for the practical development of this norm in the field of education are seen in the application of information on the implementation by a controlled person of measures to reduce the risk of harm (damage) and prevent harm (damage) to legally protected values (paragraph 1, Part 7, Article 23), as well as an independent assessment of compliance with mandatory requirements (paragraph 4, Part 7, Article 23). To date, the higher education system has accumulated considerable experience in the use of public and professional control tools, in particular, independent assessment of the quality of education, professional and public accreditation, university rankings, which certainly requires the implementation of their results in the activities of control (supervisory) bodies. At the same time, it should be noted that such experience was actively demonstrated by the subjects of the Russian Federation before the entry into force of the novelties of the Law on State Control (Supervision). In particular, in the report of Rosobrnadzor for 2020, based on the analysis of the data provided, it was concluded that the most popular criteria for selecting educational organizations and ranking them for inclusion in the annual plan of scheduled inspections in 83 subjects were the level of educational results of students and the results of federal and regional evaluation procedures [Report on state control (supervision) in in the field of education, the authority for the implementation of which has been transferred to the state authorities of the subjects of the Russian Federation, and on the effectiveness of such control (supervision) in 2020 [website]. URL: http://obrnadzor.gov.ru/ru/open_government/plans_and_reports / (accessed: 07.05.2022)]. In this regard, it seems that taking into account the results of public and professional control as tools for assessing the factors and conditions that create the risk of violating mandatory requirements fully meets the requirements of reliability, objectivity and complexity, and is also one of the directions of formation and development of the state-public model of control over the activities of educational institutions of higher education, which is relevant in in the conditions of transformational processes taking place in the higher education system at the present time and takes into account the peculiarity of the nature of the regulation of the sphere of higher education, designated in the scientific literature as state-public ^[9], which fully corresponds to global trends in the management of national higher education systems ^[10].

In the context of the designated reform guideline on the transition to carrying out exclusively preventive measures against entities whose activities do not belong to a high or extremely high risk category of harm, designated by the President of the Russian Federation [List of instructions following the results of the XXVI St. Petersburg International Economic Forum (approved by the President of the Russian Federation on August 16, 2023 No. Pr-1619) // website The President of Russia (kremlin.ru ) August 17, 2023], risk indicators are of particular importance as a separate element of the system provided for in Chapter 5 of the Law on State Control (Supervision), necessary for assessing the risk of harm (damage) in the context of resolving the issue of initiating unscheduled control (supervisory) measures. At the same time, it should be noted that the introduction of the practice of using risk indicators has led to the emergence of different positions among the scientific community about the prospects for their development ^[11], in this regard, it seems that the scientific discussion on this issue will continue.

The list of indicators of the risk of violation of mandatory requirements within the framework of the type of control (supervision) under study is currently approved by Rosobrnadzor Order No. 1336 dated 04.10.2021 [Order of the Federal Service for Supervision of Education and Science dated October 4, 2021 No. 1336 "On approval of the list of indicators of the risk of violation of mandatory requirements used in the Implementation of Federal State Control (Supervision) in the field of education" // Official Internet portal of legal information (www.pravo.gov.ru ) December 20, 2021 No. 0001202112200066]. The list of educational institutions of higher education includes two indicators, expressed in the failure to submit the necessary information to the federal information system "Federal Register of Information on Education Documents and (or) qualifications, training documents", limited to the calendar year, as well as in the lack of access to information resources, subject to the regulatory features fixing this fact. The validity of establishing these parameters as risk indicators is questionable, since to a greater extent they characterize not so much the sign of a violation as the fact of a violation, while there is no definition of any parameters, comparison with which signals a high probability of violation of a mandatory requirement. Novelties caused by the addition of the list on the basis of Rosobrnadzor Order No. 1071 dated June 13, 2023 [Order of the Federal Service for Supervision of Education and Science dated June 13, 2023 No. 1071 "On Amendments to the List of Indicators of the Risk of Violation of Mandatory Requirements Used in the Implementation of Federal State Control (Supervision) in the Field of Education, approved by the Order of the Federal services for supervision in the field of education and science dated October 4, 2021 No. 1336" // Official Internet portal of legal information (pravo.gov.ru ) August 1, 2023 No. 0001202308010015] an indicator of the risk associated with the excess of the number of students relative to the values of previous periods in established cases, in our opinion, more correspond to the key characteristics of this tool, laid down in Part 9 of Article 23 of the Law on State Control (Supervision), however, the use of this indicator is quite spot-based. It seems that as universal risk indicators, it is possible to use indicators of an increase in the number of appeals to Rosobrnadzor about violations of mandatory requirements for a selected unit of time in comparison with the previous similar period, as well as the presence or excess of a set number, for example, two or more warnings about the inadmissibility of violations of mandatory requirements announced by Rosobrnadzor during preventive measures.. These circumstances, in our opinion, signal possible deviations in the object of control (supervision) and require attention from the control (supervisory) bodies.

Monitoring is of particular importance in the higher education system in terms of recognition of its information openness, as well as the formation and development of the digital educational environment. In the context of a risk-based approach, we consider it fundamentally important to resolve the issue of the limits and prospects of embedding monitoring in the system of control (supervisory) activities. Monitoring as a form of observation has been known to the education system since 2012, when this procedure received its normative definition in article 97 of the Law on Education and regulation of the rules for its implementation. However, at present, the confusion in the concepts used from monitoring in the education system and monitoring of the education system (Articles 89, 92, 97 of the Law on Education) to monitoring of effectiveness, monitoring of the main activities of an educational organization of higher education, a significant number of estimated indicators of which are contradictory and debatable. Special questions of both scientists and the professional community in the context of the identified problem are rightly addressed to accreditation monitoring ^[12], in a sense, this tool acts as a symbiosis of two procedures, using accreditation indicators in the content of the assessment, carried out in the form of monitoring.

The regulation of the organization and implementation of monitoring in the education system is beyond the scope of the Law on State Control (Supervision), however, in the practice of law enforcement, questions arise about the correlation of these monitoring specific to the education system with such a type of control (supervisory) event as monitoring compliance with mandatory requirements (safety monitoring), as well as the differentiation of the assessed indicators during various procedures (accreditation, accreditation monitoring, state control (supervision)). We consider it fundamentally important to resolve the issue of the procedure and conditions for taking into account the results of these monitoring in the organization and implementation of other control (supervisory) measures.

In order to reduce the administrative burden on controlled persons, it seems reasonable to leave the indicators of some monitoring carried out on formal grounds (for example, monitoring the websites of educational organizations in accordance with the indicators of Rosobrnadzor Order No. 796 of June 10, 2019 [Order of the Federal Service for Supervision of Education and Science No. 796 of June 10, 2019 "On Establishing the procedure, terms and indicators of monitoring of the education system by the Federal Service for Supervision in the Field of Education and Science" // Official Internet portal of legal information (www.pravo.gov.ru ) September 25, 2019]), exclusively as a subject of federal state control (supervision) in the field of education, conducted in the form of monitoring compliance with mandatory requirements (safety monitoring) at the same time, the results of monitoring of "better" indicators, in particular accreditation monitoring, should be used as a possible data source for forming an assessment parameter to be included in the list of relevant risk indicators. It seems that these proposals can make it possible to use the potential of monitoring the education system in order to identify the risks of violating mandatory requirements and increase the effectiveness of using monitoring as a tool for selecting and ranking universities in a risk-based approach.

In conclusion, we note that the practice of law enforcement in the field of education under study within the framework of the novel administrative and legal regulation of control (supervisory) activities is not fully formed to date. The analysis shows some problems and issues of practical implementation of the risk-based approach in the implementation of federal state control (supervision) in the field of higher education, which certainly requires the continuation of rule-making activities to update the established system of criteria for assigning objects of control to risk categories and a list of risk indicators. Monitoring is of particular importance in the education system, the potential of which can be used as a tool for selecting and ranking universities in the context of a new risk assessment and management system. We also believe that in the context of a risk-based approach, the importance of the formation and development of a state-public model of control over the activities of educational institutions of higher education increases, which fully corresponds to the establishment of a coordinated model of interaction between the state, society and universities as one of the guidelines for the reform of control (supervisory) activities aimed at achieving a balance of private and public interests.