Concept of the draft Federal Law ‘On Public (Civil) Control in the Russian Federation’

CONCEPT
of the draft Federal Law ‘On Public (Civil) Control in the Russian Federation’
1. Theoretical prerequisites for the adoption of the Federal Law ‘On Public (Civil) Control in the Russian Federation’.
Public control is a constitutional and legal institution that constitutes an important element of a democratic model of society. For the stable and balanced functioning of the state apparatus, formed with the help of democratic institutions, society must possess modern and effective tools for independent control over the activities of state authorities and local self-government bodies. This would make it possible to significantly bolster the principles of the separation of powers, the rule of law, popular sovereignty, the priority of human rights, etc., which are enshrined at the level of constitutional legislation but are implemented in practice with great difficulty.
The instruments of public control in a broad sense include the system of political competition, the institution of an imperative mandate, independent mass media, the right of citizens to information, freedom of expression, etc. At the same time, public control in a narrow sense should be viewed as the aggregate activity of citizens and non-profit organisations aimed at achieving transparency in the work of state and local government bodies, taking public opinion into account, increasing the effectiveness of the state, strengthening its responsibility to society, etc.
2. Practical prerequisites for the adoption of the Law.
Under conditions of weak political competition and insufficiently independent mass media, it seems expedient to strengthen the institutional base of public (civil) control through legislative means.
The legal basis for the institution of public (civil) control should be a system of normative legal acts at the federal, regional, and municipal levels, linked into a single branch of legislation—legislation on public (civil) control—by means of a structural federal law that establishes basic rules for the organisation and implementation of public control.
When developing the Federal Law ‘On Public (Civil) Control’, it is proposed to take into account the wide prevalence of public (civil) control in modern society. Public control, despite the absence of a built-in system of legal regulation, is carried out everywhere: from the discussion of draft laws through parliamentary hearings in the State Duma to the functioning of parent committees in secondary and pre-school education institutions. The adoption of a structural federal law would make it possible to consolidate the most important principles of the organisation and implementation of public (civil) control at all levels and in its various manifestations.
It should be noted that in the countries of the European Union, public control is not only more widespread than in Russia but also possesses much greater systematicity. For example, public control in the sphere of audiovisual media is carried out through legally established but independent state-public structures—the Commission for the Regulation of Broadcasting (Austria), the High Council for Broadcasting (France), the Council for Radio and Television Broadcasting (Czech Republic), etc. Practice has confirmed the high demand for such public institutions in the modern media space. Through them, society obtains the opportunity to influence the work of audiovisual media respectfully and carefully, adapting them to its needs without resorting to such morally unacceptable tools as censorship.
3. Legal prerequisites for the adoption of the Law.
At present, a fairly large complex of normative legal acts is in force in the Russian Federation, regulating the implementation of public control to one degree or another. Such acts include:
- Federal Laws ‘On the Civic Chamber of the Russian Federation’ (dated 04.04.2005 No. 32-FZ) and ‘On public control over the observance of human rights in places of detention and on assistance to persons in places of detention’ (dated 10.06.2008 No. 76-FZ), as well as the Decree of the President of the Russian Federation ‘On public councils under the Ministry of Internal Affairs of the Russian Federation and its territorial units’ (dated 23.05.2011 No. 668). Norms establishing mechanisms for public control can also be found in a number of other federal laws: ‘On the Police’ (dated 07.02.2011 No. 3-FZ), ‘On Advertising’ (dated 13.03.2006 No. 38-FZ), ‘On Self-Regulating Organisations’ (dated 01.12.2007 No. 315-FZ), ‘On the Judiciary Community in the RF’ (dated 14.03.2002 No. 30-FZ), ‘On Advocacy and the Bar in the RF’ (dated 31.05.2002 No. 63-FZ), etc.;
- departmental provisions on public councils under federal executive authorities, scientific-consultative or scientific-methodological councils under other federal authorities and institutions;
- laws of the subjects of the Russian Federation on regional civic chambers, as well as other institutional forms of public control. These normative legal acts are not always aimed at creating legal conditions for real public control, and in a number of Russian regions, such laws are completely absent;
- at the municipal level—provisions on public councils of districts, urban districts, intra-city municipal formations, etc., which are adopted and approved by local self-government bodies.
Such a wide spectrum of normative legal acts adopted at various levels in the absence of a structural law leads to the fact that the principles of public control, implicitly embodied in federal constitutional legislation, do not always receive adequate reflection in specific laws and provisions. And conversely, successful legal models and the positive experience of the practical organisation of public control, enshrined in one or another normative legal act, often go unnoticed.
The adoption of a structural law at the federal level will allow for the establishment of uniform principles and standards for the organisation and implementation of public control for all Russian regions and municipal formations. This should by no means be interpreted as an attempt to create a ‘public vertical’. On the contrary, it is about creating a legal framework for the functioning of a ‘public horizontal’, which will be able to ensure public control at every level and in every link of the state machine. It should be emphasised that the initiative to develop a draft federal law on public (civil) control does not in any way contradict the idea of creating a law on state control, which a number of experts are currently working on. On the contrary, both laws could complement each other.
4. Aims and tasks of the Law
The adoption of the Law on Public (Civil) Control will allow for the resolution of the following tasks:
- to form a unified conceptual apparatus for legislation on public (civil) control, including such concepts as ‘public (civil) control’, ‘public expertise’, ‘public interests’, etc.;
- to establish a unified complex of principles of public (civil) control;
- to build a unified system of legislation on public (civil) control, including federal, regional, and municipal levels;
- to extend public control both to the processes of decision-making by state authorities and local self-government bodies, and to the processes of executing such decisions, in order to increase the effectiveness of the state and prevent the adoption of incorrect decisions;
- to consolidate society on the constitutional principles of the separation of powers, the rule of law, popular sovereignty, and the priority of human rights through the broad involvement of citizens in the processes of making, executing, and adjusting management decisions;
- to create not only legal but also factual prerequisites for the activation and unification of public efforts in the fight against corruption, embezzlement, irresponsibility, the unprofessionalism of state and municipal employees, the archaism of management stereotypes, etc.;
- to ensure public participation in the modernisation of the state at all its levels and in all its links.
The adoption of the Law on Public (Civil) Control will allow for the systematisation and binding into a single legal framework of all currently existing, as well as potential future, forms and institutions of public (civil) control.
5. Key provisions of the Law.
Within the framework of this concept, it seems appropriate to fix the following essential principles of public (civil) control in the Law on Public (Civil) Control:
- Independence of public associations participating in the implementation of public (civil) control. This principle relies on constitutional norms regarding the freedom of association. The Law must include legal mechanisms that preclude the creation by state authorities or local self-government bodies—directly or indirectly—of public associations under their control, which are intended to participate in the implementation of public (civil) control.
- Independence of public (civil) control bodies. This principle should be expressed, on the one hand, in the absence of relations of subordination between public (civil) control bodies, and on the other, in the creation of conditions for partnership between them, including for the exchange of information, the provision of mutual assistance and support, the pooling of efforts and resources, etc. Hierarchical schemes for building public (civil) control bodies seem unacceptable if we want to avoid the formation of yet another, public ‘vertical’. For example, the civic chambers of the subjects of the Russian Federation should not be in organisational and/or financial subordination to the federal Civic Chamber.
- Inclusiveness of public (civil) control. According to this principle, public control should extend not only to state authorities but also to local self-government bodies, state corporations and institutions (schools, universities, hospitals, clinics, kindergartens, shelters, etc.), law enforcement, supervisory and judicial bodies, institutions for the execution of sentences, the Armed Forces, and special services. The issue of extending the system of public (civil) control to non-state institutions providing social services or otherwise influencing the well-being of the population deserves discussion.
- Universality of public (civil) control. The possibility of participating in public control should be guaranteed to all citizens, regardless of sex, race, nationality, social origin, and other factors. Public control should be equally accessible to all citizens wishing to defend public interests. Publicity of public (civil) control. The openness and public accountability of public (civil) control bodies must be guaranteed by the Law.
- Obligatoriness of public (civil) control. This principle is proposed to be concretised through norms obliging state authorities, local self-government bodies, and other organisations and institutions, as well as their officials, to provide assistance to the work of public (civil) control bodies, take their recommendations into account in their work, and provide responses to comments and suggestions received from them.
- Diversity of forms of public (civil) control. This principle should be ensured by the possibility for citizens themselves to determine the form, structure, and name of public (civil) control bodies. Public control in various subjects of the Federation can be carried out taking into account local national, cultural, and religious customs and traditions.
- Recognition of public (civil) control bodies as legitimate representatives of an indefinite circle of persons acting in defence of public interests. The introduction of a universal institution into Russian law for the protection of the interests of an indefinite circle of persons (public interest) will allow citizens to be armed with a direct and legitimate tool for influencing the authorities.
The indicated principles of implementing public (civil) control must be enshrined in the Law not only in the form of principle-norms or declaration-norms but also in the form of actually working legal structures. 6. Further development of the Concept.
In the event that this Concept is supported, the Presidential Council for the Development of Civil Society and Human Rights is prepared to undertake the organisation of work on the draft Federal Law ‘On Public (Civil) Control in the Russian Federation’ and submit it to the President of the Russian Federation before the end of 2011.