Public inspection as a form of public control in the Russian Federation: current problems and development prospects

Malinovskii Oleg Nikolaevich ORCID: 0000-0001-6541-9046 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     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 of the Department of State and International Law, Kuban State Agrarian University named after I. T. Trubilin 350044, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 niipgergo2009@mail.ru Other publications by this author

Introduction.

The issues of organizing and implementing public control measures in various forms are studied in detail in the works of V. V. Aksenova, ^{[1, pp. 18-23]} V. A. Galanov, ^{[2, pp. 83-39]} L. A. Spector, ^{[3, pp. 186-188]} D. V. Dukova, ^{[9, pp. 86-90]} A. D. Zasovin, ^{[10, pp. 862-866]} A. Kankulova, ^{[12, pp. 162-166]} A.M. Kononova, ^{[13, pp. 18-21]} I. S. Mitryaeva, ^{[14, pp. 91-94]} M. G. Popova, ^{[15, pp. 9-13]} I. V. Frolova, ^{[16, pp. 166-169]} N. A. Chertova, ^{[17, pp. 41-44]} as well as a number of other authors. The most important form of public control is public inspections, the analysis of which is devoted to the works of, in particular, V. V. Grib, ^{[8, pp. 3-7]} P. A. Kabanov, ^{[11, pp. 1101-1108]} as well as some other scientists. However, the proportion of research aimed at formalizing and analyzing existing problems related to the implementation of public control measures in the form of public inspections, as well as the development and justification of measures to resolve them, is relatively small, which is why the choice of the topic of this scientific research is determined.

Methods and methodological basis of the research.

The methodological basis of the research consists of several scientific methods, in particular: formal-logical; historical-legal; comparative-legal; statistical; sociological; method of studying specific legal situations. The empirical basis of the study was: The Constitution of Russia; norms of international and national legislation; materials of judicial practice, practice of work of subjects of public control; sources of scientific legal doctrine devoted to the analysis of the organization and implementation of public control in the Russian Federation.

The main text.

The Constitution of the Russian Federation formalized the human being, as well as his rights and freedoms, as the highest value, obliging the state to recognize, observe and protect them. The system of constitutional principles, as well as the entire system of human and civil rights and freedoms, need a system of legal guarantees for their implementation, protection and protection, the central element of which is public control carried out in the country in various forms provided for by law. In particular, analyzing Article 18 of Federal Law No. 212-FZ dated 07/21/2014 "On the Basics of Public Control in the Russian Federation" (hereinafter also the Law), it is possible to classify forms of public control into several groups:

Firstly, the main forms of public control, which are explicitly named in part 1 of Article 18 of the Law (public monitoring, public inspection, public expertise). At the same time, the legislator leaves the list of the main forms of public control open, noting that other forms can be attributed to them, but on condition that they do not contradict the Law. The question arises: what normative legal acts can fix these other basic forms of public control? On the one hand, Part 1 of Article 2 of the Law refers to the legal basis of public control (in addition to this Law) other federal laws on public control (for example, Federal Law No. 32-FZ dated 04.04.2005 "On the Public Chamber in the Russian Federation"), relevant regional laws and municipal regulatory legal acts. On the other hand, part 3 of Article 18 of the Law explicitly states that the procedure for exercising public control provided for in part 1 of this article is determined by Law. There is a legal conflict. We believe that the main forms of public control should be consolidated only at the level of federal laws.

Secondly, the next group of forms of public control are the forms of interaction of civil society institutions with state bodies and local governments. At the same time, the Law directly establishes their two main types: public discussions; public (public) hearings. The legislator also made this list open, allowing for the possibility of supplementing it with other forms of interaction between these entities. At the same time, the Law does not make a reservation that these forms of interaction should not contradict the Law itself. It is obvious that there is also a legal conflict regarding which normative legal acts can consolidate these other forms of interaction. Its resolution is also seen in limiting the possibility of consolidating other forms of interaction by any legal acts below the level of federal laws.

Thirdly, the legislation on public control (in particular, part 2 of Article 18 of the Law) has consolidated the possibility of exercising public control in complex forms, when subjects of public control simultaneously implement a public control event in several forms. At the same time, it is not clear whether an event of public control can be carried out by simultaneously using several forms exclusively within one of the two above-mentioned groups, or whether it is allowed to mix the main forms of public control with forms of interaction of civil society institutions with state bodies and local governments. From the point of view of the content of each of the above forms, it is possible to mix forms only within each of the two above-mentioned groups. However, if federal legislation on public control establishes some new forms of the first and second groups, then, depending on their content, such a mixture of forms from different groups will be possible.

Public inspections in the Russian Federation are the most common form of public control, which is due to a number of reasons.

Firstly, this form of public control is the most familiar for both citizens of the country and officials of public control facilities. As we have already noted in previous studies, ^{[4, pp. 194-196]} this is largely due to the fact that during Soviet times, within the framework of the Institute of People's control of power, its implementation was carried out mainly in the form of inspections (up to 70% of people's control measures in the 80s were carried out in the form of inspections).

Secondly, public inspections are the most effective type of forms of public control, ^{[5, pp. 127-130; 6, pp. 199-202]} since within their framework it is possible to collect and analyze information, verify facts and circumstances concerning socially significant activities of objects of public control, as well as activities affecting rights, freedoms, legitimate interests, protected by law.

Thirdly, public inspections are carried out, as a rule, with the departure of representatives of subjects of public control to the territory of the object of public control, therefore, representatives of subjects of public control have the opportunity to comprehensively assess the scale of violations of both legislation and the aforementioned rights, freedoms and legitimate interests.

Fourthly, the procedure, conditions and grounds for conducting public inspections are the most developed in the Russian scientific legal doctrine of public control (in comparison with both other basic forms of public control and forms of interaction between subjects and objects of public control).

Fifth, the legislation on public control establishes a fairly wide list of subjects that can initiate public inspections. These subjects include both public authorities, for example, the Commissioner for Human Rights in the Russian Federation as a parliamentary control body, and the subjects of public control themselves (the Public Chamber of the Russian Federation).

Sixth, the results of the public audit are carefully documented by drawing up a final document (act). At the same time, the Law carefully details the constituent elements (content) of this document.

Seventh, the results of the public audit, including the final document (act), are subject to publication, in particular, by posting on the Internet information and communication network, which makes this form of public control as open as possible to citizens of the country and public associations and other non-governmental non-profit organizations.

However, the organization and implementation of public control in the Russian Federation in the form of public inspections are associated with numerous problems, among which the following can be distinguished:

Firstly, the lack of consolidation of this institution of civil society in the Constitution of the Russian Federation is a significant problem that complicates the organization and conduct of public control in the form of public inspections. Legislation on public control is represented only by the level of federal laws. However, the Law does not contain any restrictions on the possibility of organizing and conducting public control activities in relation to public authorities. Thus, public control can be carried out in relation to the activities, acts and decisions of even those public authorities whose status is named at the level of the Constitution of the Russian Federation and federal constitutional laws (for example, in relation to the Constitutional Court of the Russian Federation), or only in the Constitution (the President of the Russian Federation). There is a legal situation that subjects of public control, mentioned only in federal laws, are authorized to exercise public control over authorities whose status is determined disproportionately higher! In this regard, the grounds for such public control measures (for example, in the form of public inspections), the conditions and procedure for their implementation, the limits of such public control measures, as well as many other issues are not clear. The solution to this problem is seen in the consolidation of the institution of public control in the Constitution of the Russian Federation, which should detail the concept, basic principles, forms, methods and types of public control measures, a list of its objects and subjects, or an exhaustive list of identifying features, the mechanism of interaction between objects and subjects of public control, their mutual responsibility, limits and grounds conducting its events.

Secondly, a major problem in the organization and conduct of public control events in the form of public inspections is the fact that the legislation on public control did not sufficiently detail the powers of subjects of public control during public inspections. Thus, article 21 of the Law (Rights and Duties of a public inspector) in Part 1 contains a reference norm, according to which the scope of the rights and duties of an inspector is established by the legislation of the Russian Federation regulating the procedure for conducting public inspections in certain areas of public administration. Only a few powers are explicitly stipulated: the right to receive information necessary for conducting a public audit; the right to prepare a final document (conclusion) based on the results of a public audit and participate in its preparation; the opportunity to express a dissenting opinion in the final document. At the same time, it is unclear where, for example, to find a legislative act that establishes the procedure for conducting a public audit of the activities, acts and decisions of the President of the Russian Federation? He's gone! In addition, a number of objects of public control by article 2 of the Law are generally removed from the subject of its jurisdiction under the pretext that these issues will be regulated by separate federal laws, most of which have not been adopted to date. In this regard, it seems necessary to instruct the Public Chamber of the Russian Federation to conduct an audit of peculiar "white spots" in federal legislation on public control. For all objects of public control removed from the scope of the Law, proposals should be developed to include amendments and additions to the relevant federal laws concerning the implementation of the institute of public control in them. These proposals should be sent to the Federal Assembly of the Russian Federation in order for it to initiate the optimization of legislation on public control in this area.

Thirdly, a significant problem that complicates the organization and conduct of public control in the form of public inspections is the lack of a set of real powers for the subjects of public control to effectively implement it in the form of public inspections. The general powers of subjects enshrined in article 10 of the Law, as well as the special rights of their representatives (public inspectors) specified in article 21 during public inspections, in fact, do not contain any real powers. All the mentioned rights are informational and auxiliary in nature. The maximum is that the subject of public control can apply to a higher public authority (authorized to control or supervise the inspected object of public control), to law enforcement agencies or to the court. This circumstance unprofitably distinguishes the institute of public control from the institute of public control of power, within which the bodies of public control of power could even suspend the work of inspected facilities, impose fines on their officials, etc. The solution to this problem is seen in supplementing the system of the above-mentioned general and special powers of subjects of public control (their representatives) with a set of real powers, in which you can include, for example, the possibility of imposing administrative liability measures.

Fourthly, a major problem in the organization and conduct of public control events in the form of public inspections is the fact that, in our opinion, the legislation on public control has fixed an insufficient number of subjects who can initiate public inspections unconditionally. Thus, article 20 of the Law limited the circle of subjects to a circle of public authorities with special powers (in particular, the Commissioner for Human Rights in the Russian Federation), the Public Chamber of Russia. Regional public chambers and public chambers (councils) of municipalities, as well as other subjects of public control, may initiate public inspections if this is expressly provided for by the legislation of the Russian Federation. At the same time, it is not clear what the legislator understands by the legislation of the Russian Federation? Federal laws and federal constitutional laws, or any federal regulations? Or does the concept also include relevant regional regulatory legal acts and municipal regulatory legal acts in the field of public control? The solution to this problem is seen, in our opinion, in addition to the number of subjects who can initiate public inspections unconditionally by all subjects of public control mentioned in Article 9 of the Law, as well as the Accounts Chamber of the Russian Federation, regional and municipal control and accounting authorities, all-Russian political parties (their central governing bodies), as well as other organizational and legal forms of public associations of the all-Russian level (in coordination with the Public Chamber of the Russian Federation).

Fifthly, a significant problem complicating the organization and conduct of public control in the form of public inspections is the absence in the Criminal Code of the Russian Federation and the Administrative Code of the Russian Federation of legal structures providing for criminal and administrative liability of officials of public control facilities, as well as third parties, for actions aimed at obstructing the legitimate activities of representatives of public control, conducting its activities (especially in the form of public inspections).

This problem is especially relevant in the light of the analysis of parts 3 and 4 of Article 21 of the Law, which threaten the public inspector with punishment in the form of the impossibility of his further participation in public control events if, for example, he, fearing pressure on him, does not report the facts of pressure to the organizer of the public inspection! And if he was threatened with the murder of him and his family? And were the threats real (for example, a check was carried out against a law enforcement agency)? The solution to this issue is seen in the consolidation in the Criminal Code of the Russian Federation and the Administrative Code of the Russian Federation of appropriate structures providing for measures of responsibility for countering the legitimate activities of representatives of subjects of public control, for example, public inspectors. At the same time, if pressure was applied against public inspectors in the form of death threats, then criminal penalties should be up to life imprisonment.

Sixth, a major problem in the organization and conduct of public control events in the form of public inspections is the fact that the legislation on public control does not consolidate a uniform understanding of the procedure for organizing and conducting public inspections. The solution to this problem is seen in fixing this procedure directly in the Law, since it is not rational to formalize this procedure in sectoral legislation in all areas where public inspections can be carried out. These normative legal acts can only complement and detail the basics of the specified procedure, which is fixed centrally.

Seventh, a significant problem that complicates the organization and conduct of public control in the form of public inspections is the weak material, technical, organizational and financial base of subjects of public control. This is especially true at the regional and municipal level (which is easily explained by the subsidized nature of most regional and municipal budgets in the country). The solution to this problem is seen in the adoption by the Government of the Russian Federation of a system of federal programs dedicated to strengthening the specified base of subjects of public control. But, as we noted earlier, these financial influences should be linked to a step-by-step process of improving the efficiency and effectiveness of the work of subjects of public control by the Government of the country. ^{[5, pp. 127-130; 6, pp. 199-202]}

Eighth, a major problem in the organization and conduct of public control events in the form of public inspections is the fact that the positive foreign experience of organizing and conducting inspections by civil society institutions is poorly used in the Russian Federation. This is especially true for the use of modern information and communication technologies. ^{[7, pp. 196-200]} The solution to this problem is seen in the instruction to the Public Chamber to study and adapt this experience in order to then develop a system of appropriate amendments to the legislation on public control.

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 not only of the system of constitutional principles, but also of the entire system of constitutional rights and freedoms of man and citizen, the rights and legitimate interests of public associations and other non-governmental non-profit organizations.

2. The most common form of public control is public inspections, the optimal development of which is associated with numerous problems, among which the following can be distinguished: the lack of consolidation of the institution of public control in the Constitution of the Russian Federation; insufficient detail of the powers of subjects of public control and its powers in the exercise of public control in the above-mentioned form; the absence of these subjects of a set of real powers for the effective implementation of this form of public control; the absence in the Criminal Code of the Russian Federation and the Administrative Code of the Russian Federation of legal structures providing for criminal and administrative liability of officials of objects of public control, as well as third parties, for actions aimed at hindering the legitimate activities of representatives of subjects of public control conducting its activities (especially in the form of public inspections); insufficient number of subjects who can initiate public inspections; lack of a uniform understanding of the procedure for organizing and conducting public inspections; insufficient level of technical, organizational, financial, material and other support for the activities of subjects of public control; weak use of positive foreign experience in conducting public control events in this form.

3. The resolution of these problems requires the development and implementation of a system of measures: incorporation of the institute of public control into the Constitution of Russia; expansion of the powers of subjects of public control in the preparation and implementation of public control measures in the form of public inspections; addition of the number of subjects who can initiate public inspections unconditionally by all subjects of public control referred to in Article 9 The Law, as well as the Accounts Chamber of the Russian Federation, regional and municipal control and accounting authorities, all-Russian political parties (their central governing bodies), as well as other organizational and legal forms of public associations of the all-Russian level (in coordination with the Public Chamber of the Russian Federation); consolidation in the Law of a uniform procedure for organizing and conducting public inspections for all types of subjects of public control; consolidation of the possibility of extension by subjects of public control (subject to agreement with the Public Chamber of the Russian Federation) of the deadlines for conducting a public inspection (in excess of 30 days established by paragraph 5 of Article 20 of the Law); consolidation in the Criminal Code of the Russian Federation and the Administrative Code of the Russian Federation of criminal and administrative liability for countering the legitimate activities of representatives of subjects public control, conducting its activities (especially in the form of public inspections); strengthening their material, technical, organizational and property base; using positive foreign experience in the functioning of public inspections; consolidating the possibility of conducting public inspections in an interactive mode using modern information and communication technologies.