Expertise as a Control and Supervisory Action: Gaps in Legislation

Korepina Anna Viktorovna PhD in Law Associate professor, Head of the department of Administrative and Financial Law, Northwest Institute of Kutafin Moscow State Law University 160021, Russia, Vologodskaya oblast', g. Vologda, ul. 5-Ya sadovaya, 28 anna.corepina@yandex.ru Other publications by this author

The institute of expertise is quite widespread in the field of public administration. Its task is the legal regulation of the use of professional knowledge to assess legally significant circumstances necessary when making public management decisions. Expert research is provided within the framework of administrative legal relations that develop in various sectors of economic, socio-cultural and administrative-political activities. As correctly noted by Yu. A. Krasheninnikova, in the Russian context, "inconspicuous, but massive expert activity" is an essential part of the life of our state ^{[1, p. 88]}. According to the legislation, state examinations are carried out when performing registration, licensing, licensing, accreditation, administrative-jurisdictional and other state-governmental administrative actions.

A significant part of administrative and legal relations are control and supervisory relations. They arise in the course of the activities of the authorized executive authorities aimed at preventing, detecting and suppressing violations of legislation by legal entities. In science, control and supervision are characterized as "universal instruments of administrative and legal regulation" ^{[2, p. 30]}, and the implementation of control and supervisory activities is "an important part of the stable, continuous functioning of the state" ^{[3, p. 312]}.

In the first strategic planning documents devoted to administrative reform in the Russian Federation, the improvement of the institute of expertise was directly related to the reform of control and supervisory activities [Decree of the Government of the Russian Federation of 25.10.2005 No. 1789-r "On the Concept of administrative reform in the Russian Federation in 2006-2008" // Collection of Legislation of the Russian Federation. 14.11.2005. No. 46. St. 4720; Decree of the Government of the Russian Federation of 09.02.2008 No. 157-r "On amendments to the Decree of the Government of the Russian Federation of 25.10.2005 No. 1789-r" // Collection of Legislation of the Russian Federation. 02/18/2008. No. 7. St. 633]. This is due to the fact that one of the important tasks of expert activity in the field of public administration is to ensure that the object of expertise complies with mandatory regulatory legal acts on the territory of the Russian Federation. That is why the examination is considered as a form of control ^{[4, p. 153]}, or an auxiliary element (method, means) of the mechanism of state control ^{[5, p. 107-108]}. Its application is provided for when carrying out certain types of control and supervisory measures. At the same time, the share of involvement of experts and expert organizations in the implementation of state control (supervision) in the Russian Federation is approximately 1/5 of the inspections carried out [Report of the Ministry of Economic Development of the Russian Federation "On the implementation of state control (supervision), municipal control in relevant areas of activity and on the effectiveness of such control (supervision)". Moscow, 2019 // URL: godovoy_doklad_mer_rf_po_itogu_2018.pdf (accessed: 03.01.2023); Report of the Ministry of Economic Development of the Russian Federation "On the implementation of state control (supervision), municipal control in relevant fields of activity and on the effectiveness of such control (supervision)". Moscow, 2020 // URL: *Mineco report (posted on 23.06.2020).pdf (accessed: 03.01.2023)]. 

The implementation of the main directions of administrative reform in terms of control and supervisory activities is primarily related to the adoption of system-forming federal laws [Federal Law No. 134-FZ of 08.08.2001 "On the Protection of the rights of legal entities and individual entrepreneurs during state control (supervision)" (expired from 01.05.2009) // Collection of Legislation of the Russian Federation. 13.08.2001. No. 33 (Part I). Article 3436; Federal Law No. 294-FZ of 26.12.2008 "On the Protection of the rights of Legal entities and individual entrepreneurs in the exercise of State control (supervision) and municipal control" // Collection of Legislation of the Russian Federation. 29.12.2008. No. 52 (part 1). Article 6249], the importance of which can hardly be overestimated. Their importance in creating the legal basis for the implementation of state control and supervision in the Russian Federation has been repeatedly pointed out in the legal literature ^{[6, p. 58; 7, p. 14; 8, p. 7-8; 9, p. 14]}.

At the same time, the provisions of federal laws regarding the expertise used in the implementation of control and supervisory activities were very concise. They were reduced to determining the place of expertise in the system of control measures, as well as the possibility of extending the period of verification in exceptional cases related to the need for its application. The first law on control and supervision also contained contradictory norms establishing the possibility of collecting expenses of state control (supervision) bodies for carrying out examinations, as a result of which violations of mandatory requirements were revealed, from business entities. In accordance with the Resolution of the Constitutional Court of the Russian Federation of 18.07.2008 No. 10-P [Resolution of the Constitutional Court of the Russian Federation of 18.07.2008 No. 10-P "In the case of checking the constitutionality of the provisions of paragraph fourteen of Article 3 and paragraph 3 of Article 10 of the Federal Law "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs during State Control (Supervision)" in connection with the complaint of citizen V.V. Mikhailov" // Collection of legislation of the Russian Federation. 04.08.2008. No. 31. St. 3763] they were found not to comply with the Constitution of the Russian Federation and became invalid on January 1, 2009. It can be assumed that legislative gaps have caused the lack of scientific research on the organization and conduct of examinations in works devoted to the protection of the rights of legal entities and individual entrepreneurs in the exercise of control and supervision.

Adoption of Federal Law No. 248-FZ of 31.07.2020 "On State Control (Supervision) and Municipal Control in the Russian Federation" [Federal Law No. 248-FZ of 31.07.2020 "On State Control (Supervision) and Municipal Control in the Russian Federation" // Collection of Legislation of the Russian Federation. 03.08.2020. No. 31 (Part I). Article 5007] (hereinafter – Federal Law No. 248) caused ambiguous assessments from the scientific community ^[10-13]. At the same time, in terms of regulating the procedure for organizing and conducting examinations within the framework of control and supervisory activities, its provisions should be recognized as advanced.

The novelty of Federal Law No. 248 was the definition of expertise as an independent control (supervisory) action, providing for research on issues whose resolution requires special knowledge in various fields of science, technology, art or craft. In the legal literature, this kind of action is considered as one way to obtain optimal (complete and high-quality) information about the controlled object ^{[14, p. 77]}.

The possibility of attracting experts is limited by the scope of six control (supervisory) measures (monitoring procurement, selective control, raid inspection, documentary inspection, on-site inspection, on-site inspection), and the introduction of a special regime of permanent state control (supervision). Violation of this requirement is considered gross, entailing the recognition of the results of the control and supervisory action invalid.

The undoubted advantage of the new Federal Law No. 248 is the consolidation of the concepts of "expertise", "expert" and "expert organization". They are united by the area in which they are formed, namely the "area of expertise", which means the sphere of science, technology, economic activity, within which expert research is carried out [Decree of the Government of the Russian Federation No. 2328 of 12/29/2020 "On the procedure for certification of experts involved in the implementation of expertise for the purposes of state Control (supervision), Municipal control" // Collection of legislation of the Russian Federation. 04.01.2021. No. 1 (Part II). Article 180].

The formulated normative definitions allowed the author of the article to systematize the provisions on expert activities in the field of control and supervision.

Firstly, there is a special purpose of the examination, which is mediated by the purpose of the control and supervision event - assessment of compliance by the controlled person with mandatory requirements, and ultimately, the purpose of the control and supervision activity is to achieve socially significant results related to minimizing the risk of harm (damage) to legally protected values caused by violations of mandatory requirements. To achieve this goal, Part 2 of Article 84 of Federal Law No. 248 defines the tasks of expertise, the basis of which is the subject of expert research.

The large-scale reform of control and supervision carried out in recent years in the Russian Federation has affected many legal institutions, the implementation of which contributes to the achievement of the goals set for the control and supervisory authorities in the field of public administration. Thus, according to the Ministry of Economic Development of the Russian Federation, as a result of the reform, 132 sectoral laws were amended, 12 general and more than 70 sectoral resolutions of the Government of the Russian Federation were adopted, 2500 regulations on types of control at the regional level and more than 20,000 at the municipal level were put into effect. The number of types of state and municipal control has decreased by almost half, and the number of control measures has decreased by 1.7 times. Administrative costs of business have been reduced by a total of 160 to 180 billion rubles [Summary report on state Control (supervision), municipal control in Of the Russian Federation in 2021, Moscow, 2022 // URL: svodnyy_doklad_o_gosudarstvennom_controle_nadzore.pdf (accessed 03.01.2023)]. At the same time, it is noted in the scientific literature that the reduction of administrative costs should depend not only on reducing the number of control and supervisory measures. The main goal of state control and supervision and its reform is to minimize the risks of harm to values that are significant for citizens and businesses. The sociological analysis carried out by scientists has shown the importance of evaluating the effectiveness of control and supervisory activities from these positions ^[15]. In this regard, it seems appropriate to judge that the state should be strongly interested in the fact that expert knowledge is also used for the benefit of people ^{[16, p. 448]}.

Secondly, the basis for the examination is the order of the control (supervisory) body, which in the wording of Part 3 of Article 84 of Federal Law No. 248 can be considered as an authoritative managerial action of an official of the control (supervisory) body aimed at solving the tasks of the examination. The type of act containing such an order is determined by Federal Law No. 248 only for monitoring purchases. Part 8 of Article 68 states that this is a protocol on the conduct of monitoring purchases and the direction of products (goods), the results of work performed, services rendered for instrumental examination, testing or examination, drawn up in two copies in accordance with the procedure established by the regulation on the type of control.

When carrying out other control (supervisory) measures, the form of the decision to conduct an examination of Federal Law No. 248 has not been determined. In 2021, the Ministry of Economic Development of the Russian Federation approved standard forms of decisions on control (supervisory) measures [Order of the Ministry of Economic Development of the Russian Federation No. 151 dated 31.03.2021 "On standard forms of documents used by the control (supervisory) body" // Official Internet Portal of Legal Information. URL: http://pravo.gov.ru , 01.06.2021 (accessed: 03.01.2023)]. Their samples contain sections providing for mandatory indication of the involvement of experts and expert organizations during control (supervisory) activities. Such a sample has also been approved for monitoring procurement, although for it, as already noted, Federal Law No. 248 defines a completely different form of decision-making on conducting an examination (protocol).

According to the author of the article, the decision to conduct an expert examination, taken during a control (supervisory) event (for example, during a documentary check), should be formalized by a separate act. At the same time, it is quite clear that there is no need to fix the form of the decision at the legislative level, however, Federal Law No. 248 in this part may contain a blank norm referring to the regulation on the type of control.

The act of the control (supervisory) body providing for the examination should include an expert assignment. Its content is not defined by Federal Law No. 248, focusing the law enforcement officer only on the tasks of expertise. Of course, the expert assignment should include questions that the inspector poses to the expert, to which the latter, having special knowledge, should give reasonable, unambiguous and understandable answers.

Federal Law No. 248 does not define the form, term and method of sending such a task to an expert, as well as the term and method of submitting samples for research to an expert institution. It seems necessary to fix these provisions in a normative manner, since the definition of these deadlines contributes to the timely conduct of control and supervisory measures, within which the institute of expertise is applied. The method of submitting samples for research to an expert institution must be established in the regulation on the type of control.

On the basis of Part 1 of Article 21 of Federal Law No. 248, documents drawn up by a control (supervisory) body, as well as experts involved in conducting control (supervisory) measures, are drawn up in the form of an electronic document and signed with an enhanced qualified electronic signature. This provision will begin to apply from December 31, 2023 (according to the decision of the Government of the Russian Federation, such a rule for certain types of state control (supervision) may come into effect earlier than the specified period). In this regard, it should be assumed that before the specified period, the expert assignment, the notification of the examination, can be sent to the subjects not only in electronic form, but also on paper.

Thirdly, the subjects who conduct the examination must have special knowledge and experience in the relevant field of science, technology, and economic activity. They need them to conduct an expert study in order to assess the compliance of the controlled person with mandatory requirements. The expert's special knowledge is a generally recognized fact not only in Russian science, but also in foreign literature ^{[17, p. 26; 18, p. 45; 19, p. 10]}.

Federal Law No. 248 imposes requirements on them: 1) the absence of interest of the expert organization and the expert involved by the control (supervisory) body in carrying out the examination in the results of the control (supervisory) event; 2) a special legal status confirmed in accordance with the established procedure, giving the right to conduct the examination.

A legal entity or an individual entrepreneur accredited in accordance with the legislation of the Russian Federation on accreditation in the national accreditation system can act as an expert organization. The professionalism of experts must be confirmed by passing certification, the procedure for which is determined by departmental acts [For example, Rosprirodnadzor Order No. 157 dated 03/14/2022 "On Approval of the Procedure for Certification of experts involved by the Federal Service for Supervision of Natural Resources (its Territorial Bodies) to carry out expertise for the purposes of State Control (Supervision)" // Official Internet Portal legal information. URL: http://pravo.gov.ru , 05.05.2022 (accessed: 03.01.2023)].

The regulation of the content of the legal status of an expert and an expert organization (rights, duties, grounds of responsibility), enshrined in Article 33 of Federal Law No. 248, allows defining the boundaries of the professional activities of these subjects.

Fourth, the rights of controlled persons during the examination, which are reflected in Part 5 of Article 84 of Federal Law No. 248, are a guarantee of the legality of the examination in the field of control and supervision.

In most cases, the possibility of attracting experts is provided during the so-called "contact" control and supervisory activities carried out in interaction with the controlled person. At the same time, Federal Law No. 248 does not define the form, terms and procedure for notifying a controlled entity about the examination. According to the author of the article, this is a serious legislative gap, the filling of which will strengthen the system of guarantees of compliance with the rights of a controlled person, enshrined in Part 5 of Article 84 of Federal Law No. 248.

Fifth, the results of the examination are formalized by an expert opinion. Federal Law No. 248 does not impose requirements on the content and design of this document, including those reflecting the opinion of experts who agree or disagree with the conclusions of the examination. The status of the expert opinion, its mandatory (or recommendatory nature) when making a decision by the control (supervisory) body, the procedure for familiarizing the controlled person with the results of the examination are not defined.

The legislation does not provide for appealing the results of the examination. As, however, there is no provision for appealing acts of control (supervisory) measures, since they are a means of fixing the violations identified [Resolution of the Plenum of the Supreme Court of the Russian Federation No. 21 dated 06/28/2022 "On certain issues of application by courts of the Provisions of Chapter 22 of the Code of Administrative Procedure of the Russian Federation and Chapter 24 of the Arbitration Procedural Code of the Russian Federation" // Rossiyskaya Gazeta. ¹ 149. 13.07.2022]. However, the regulation on the type of control may provide for an alternative examination procedure in case the controlled person disagrees with the results of the examination carried out as part of a control (supervisory) event, including, inter alia, the timing and procedure for making decisions based on the results of its implementation.

Sixth, the organization of expertise in the field of control and supervisory activities should be considered as one of the important powers of an official of the control and supervisory authority, the implementation of which allows you to obtain a professional assessment of compliance with mandatory requirements by a controlled person. In this regard, according to the author of the article, Part 2 of Article 29 of Federal Law No. 248 may be supplemented by a provision on the right of an inspector to involve an expert or an expert organization in conducting an examination during the implementation of a control (supervisory) event. And the implementation of this authority should be ensured by the establishment of guarantees of the rights of controlled persons when it is carried out within the framework of the control and supervisory procedure.

Thus, the regulatory provisions on control and supervisory activities, in terms of regulating the use of expertise, require improvement. Those of them that consolidate the rights and duties of officials of control and supervisory bodies and the rights of controlled persons during the examination need legislative support. Procedural issues of the application of expertise should be detailed at the level of by-laws regulating the procedure for control and supervision in established industries and spheres. I would also like to note that the general provisions on expert activity, enshrined in Federal Law No. 248, do not apply to many types of state control and supervision, which causes controversy in judicial practice [Appellate ruling of the Fifth Court of General Jurisdiction of 29.06.2022 No. 66a-954/2022 // URL: http://www.consultant.ru (accessed: 03.01.2023)]. Therefore, we agree with scientists who point to the possibility of regulating issues related to the organization and conduct of examinations in the field of control and supervisory activities by unified regulatory legal acts ^{[20, p. 99]}.