The Parliamentary Law of the Russian Federation. 2-nd ed., rew. Monograph 9785392320462

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ГОСУДАРСТВЕННАЯ ДУМА ФЕДЕРАЛЬНОГО СОБРАНИЯ РОССИЙСКОЙ ФЕДЕРАЦИИ ИНСТИТУТ ЗАКОНОДАТЕЛЬСТВА И СРАВНИТЕЛЬНОГО ПРАВОВЕДЕНИЯ ПРИ ПРАВИТЕЛЬСТВЕ РОССИЙСКОЙ ФЕДЕРАЦИИ

ПАРЛАМЕНТСКОЕ ПРАВО РОССИИ Монография 2-е издание, переработанное

Под редакцией академика РАН

Т.Я. Хабриевой

ÌÎÑÊÂÀ 2020

THE STATE DUMA OF THE FEDERAL ASSEMBLY OF THE RUSSIAN FEDERATION THE INSTITUTE OF LEGISLATION AND COMPARATIVE LAW UNDER THE GOVERNMENT OF THE RUSSIAN FEDERATION

THE PARLIAMENTARY LAW OF THE RUSSIAN FEDERATION Monograph 2-nd edition, revised

Editor-in-Chief Academician of the Russian Academy of Sciences

T.Y. Khabrieva

MOSCOW 2020

УДК 342.53 ББК 67.400.621 P18 STAFF OF AUTHORS A.I. Abramova, Ph.D – ch. V; V.A. Vitushkin, Ph.D, Associate Professor – § 5 ch. II; N.A. Vlasenko, LL.D, Professor – §1, 3 ch. VI; N.S. Volkova, Ph.D – ch. VII; S.A. Gracheva, Ph.D – ch. IV; сh. IX (co-authored by A.E. Petrov); A.Y. Kapustin, LL.D, Professor – § 2 ch. VIII; M.A. Meshcheryakova, Ph.D – § 3 ch. III; S.E. Naryshkin, Doctor of Economics – Preface, § 1,3 ch. VIII; L.A. Nudnenko, LL.D, Professor – § 1, 2 ch. III; A.V. Pavlushkin, Ph.D – § 2, 4 ch. VI; A.E. Petrov, Doctor of Historical Sciences – ch. IX (co-authored by S.A. Gracheva); T.Y. Khabrieva, Academician of the Russian Academy of Sciences – Introduction, § 1–3 ch. I, § 1–4 ch. II; Editor-in-Chief Academician of the Russian Academy of Sciences T.Y. Khabrieva

P18

The Parliamentary Law of the Russian Federation : Monograph / A. I. Abramova, V. A. Vitushkin, N. A. Vlasenko, etc; Editor-inChief T. Y. Khabrieva; The State Duma of the Federal Assembly of the Russian Federation; The Institute of Legislation and Comparative Law under the Government of the Russian Federation. — 2-nd ed., rew. — Moscow, Prospekt, 2020. — 416 p. [Парламентское право России: Монография. — 2-е изд., перераб. — Москва : Проспект, 2020. — На английском языке] ISBN 978-5-392-32046-2 Presented edition is devoted to the parliamentary law of Russia and reveals its place in the system of domestic law and the role of its doctrinal regulative arsenal in the development of parliamentarism in the Russian Federation. The authors discuss theoretical approaches to the study of parliamentary law, the ways of institutional and regulatory realization of the ideas of parliamentarism in Russia, the main characteristics of constitutional legal status of the Russian Parliament and the legislative bodies of the subjects of the Federation, the mechanism of formation of legislative bodies in the Russian Federation, organizational aspects of their functioning (internal structure, the status of the officials and bodies). The book lets the reader get acquainted with the types of the Deputy mandate, rights and duties of the members of the Parliament, guaranties of their activity, forms of their responsibility. Chapters on parliamentary procedures, which form the basis of parliamentary law, occupy the central place in the monograph. Various aspects of legal technologies in parliamentary activities, the forms of parliamentary control, items of inter-parliamentary cooperation and providing the functioning of the legislative authorities are analyzed in this book. This edition is addressed to the deputies, officers of the legislative machinery of legislative bodies, and also to the teachers, post-graduate students, students of law faculties of universities and to those who are interested in the parliamentarism and its problems. 2016 . © Staff of authors, 2016 © The Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2016

Contents

Preface........................................................................................................ 9 Introduction......................................................................................... 11 Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia................................................................................................... 15 § 1. The parliamentarism as essential valuable basis of parliamentary law............................................................ 15 § 2. The parliamentary law in the legal system of the Russian Federation.............................................. 26 § 3. The sources of the parliamentary law.......................................................... 34

Сhapter II. Parliament is the Supreme Representative and Legislative Body in the Russian Federation............................................ 45 § 1. The position and the role of the Federal Assembly in the democratic federative state system............................................................................... 45 § 2. The functions and the competence of the Federal Assembly.............................................................................. 47 § 3. Constitutional and legal principles of formation of the Federal Assembly.......................................................... 79 § 4. The internal arrangement of the Chambers of the Federal Assembly.................................................... 94 § 5. The legal status of the legislative bodies of the subjects of the Russian Federation...................................................121

Chapter III. The Status of the Parliamentarians and Their Associations.............................................................. 140 § 1. A parliamentarian: the definition and the concept principles of his activity....................................................140 5

Contents § 2. The powers of the parliamentarian and the guaranty of his activity.................................................................152 § 3. The factions and other associations in the parliamentary bodies of the Russian Federation..........................................................................165

Chapter IV. Parliamentary Procedures................................................... 175 § 1. The definition and types of parliamentary procedures......................................................................175 § 2. The ways of functioning of legislative bodies in the Russian Federation..........................................................................182 § 3. The procedure of decision making in the Parliament......................................................................................200

Chapter V. Lawmaking Process....................................................................... 207 § 1. The organization of lawmaking activity in the Russian Federation..........................................................................207 § 2. The definition of the legislative process and its stages.............................................................................................212 § 3. The specific ways of adoption of certain types of laws of the Russian Federation..........................................................................220 § 4. The lawmaking process in the subjects of the Russian Federation..........................................................................234 § 5. The planning, coordination and expertise in the lawmaking process...........................................................................241

Chapter VI. Legal Technologies in Parliamentary Activities................................................. 253 § 1. The quality of the law and the legislative technique.....................................................................253 § 2. The legal monitoring.................................................................................262 § 3. The legal prognostication..........................................................................273 § 4. The legal experiment.................................................................................283 6

Contents

Chapter VII. Parliamentary Control............................................................ 288 § 1. Parliamentary control: the concept, content and principles of effecting.............................................................288 § 2. The forms of realization of control powers by the parliamentary bodies of the Russian Federation..............................292 § 3. The specialized bodies of parliamentary control............................................................................305

Chapter VIII. Inter-Parliamentary Cooperation.................................. 315 § 1. Inter-parliamentary cooperation in the context of globalization...................................................................315 § 2. The Federal Assembly and the legislative bodies of the subjects of the Russian Federation in the international cooperation................................................................331 § 3. Parliamentary law of the intergovernmental associations...............................................................................................337

Chapter IX. Providing the Parliament’s Activity ............................ 350 § 1. The machineries and the subsidiary bodies of the Chambers of the Federal Assembly, the legislative bodies of the subjects of the Russian Federation..........................................................................350 § 2. Extra-parliamentary assistance to the activities of the legislative bodies in the Russian Federation..........................................................................369

Appendix................................................................................................. 375 The names of the legislative bodies of the subjects of the Russian Federation..........................................................................375 The concept of the federal law draft «On the normative legal acts in the Russian Federation»........................................................................378 Methodical rules for the performance of the scientific and legal expertise of the draft laws submitted to consideration of the State Duma of the Federal Assembly of the Russian Federation..........................................................................395 7

Contents Methodical recommendations for carrying out the legal monitoring.........................................................401 Methodical recommendations on the law implementation and the evaluation of its effectiveness........................................................405 Methodical recommendations on information provision of legal monitoring performance................................................................408

8

Preface

The Constitution of 1993 and the establishment of the Parliament of new Russia had a decisive influence on the development of democracy in our country. Two decades — is, of course, a very short term according to the history standards. However, during this period the Russian statehood passed a way that other countries were passing for centuries. Today, when there are active processes of social and political modernization and, in fact, a new lawmaking cycle began, the Russian Parliament has reached a new stage of its activity, characterized by the greater openness to the civil society, growth of interparty dialogue, extensive use of the independent expertise. A new stage in the strengthening of interparliamentary cooperation is expected as well. The lawmakers of different countries, making full use of existing practices of the parliamentary diplomacy could do a lot more for the modern world. Currently, the legislative public state power bodies are developing dynamically. It should be noted, that the hot debates about the place, role and functions of the Parliament periodically arise precisely in connection with the search for an optimal model of such state body. The special place of legislative (representative) authority among the other branches of the state power and the important social and political significance of the decisions made by the Parliament require a comprehensive analysis of the various theoretical and applied issues of functioning of the Federal Assembly of the Russian Federation and legislative (representative) state powers of the regions of the Russian Federation and attract more attention of both scientists and practitioners. Certainly, there is a need for a comprehensive review of the role and place of the legislative bodies in the system of public power and government of Russia, the status of the parliamentarians and their associations, and the peculiarities of the legislative process in the conditions of new challenges. It can be stated, that analysis of many issues of the parliamentary activity requires more attention, including such as implementation of the parliamentary procedures, the application of the modern legal technologies in the activity of the Parliament, ensuring the operation of the legislative bodies in Russia, etc. This will require more attention allowing to make a prediction for the development of the parliamentarism in Russia; reveal its role in the democratic processes that are able to strengthen the relationship between society and state. 9

The Parliamentary Law of the Russian Federation

The value of the presented publication is determined by its orientation not only to the audience of the higher schools, but also to the representatives of the legislative bodies in Russia, all those who support the stability of the national parliamentarism. I am confident that this book will promote broadening of the readers’ outlook and raising their legal and political culture. S.E. Naryshkin, Doctor of Economics, The Chairman of the State Duma of the Federal Assembly of the Russian Federation

10

Introduction The formation of the modern national statehood is inseparably associated with the development of the parliamentarism. Diverse experience of the parliamentary activity is already gained and for today the search for an optimal model of the parliamentarism that is responsive to the needs and interests of the Russian society continues. In the dynamics of the political life of Russia the tendencies of strengthening the role of the Parliament, and increasing the practice of interaction with other state power institutions are obvious. The characteristic feature of the past two decades is the rapid development of a set of rules regulating the status and activities of this body: improvement of the methods and style of work, mechanisms of legislative bodies’ formation, development of their control powers, etc. Certainly, the current changes motivate interest to the study of the modern Russian Parliament’s problems. The wide range of studies, which are devoted to the theoretical and practical basis of functioning of the Parliament in Russia1, is represented in the legal literature. In general, the domestic researchers concentrate their attention on issues related to the theory and history of the legislation and the individual status elements of the Russian Parliament, while the holistic idea of the remedial and procedural aspects of its activity, which is largely determined by the reality of its constitutional status, remains outside the contemporary doctrinal analysis. Not only common problems of the parliamentarism require the further scientific understanding but, in fact, the system of legal rules regulating the process of the parliamentary activity and organizational relations related to it which can referred to as the parliamentary law also deserves comprehensive study. The clarity of the regulation of these relations and their constitutional reasonableness determine the significance of the Parliament as the supreme legislative body and serve as a guaranty of the principle of the separation of powers. 1



Ref, e.g.: The constitutional regime of Russia. Ed. 2. Publications of the parliamentary law. Moscow, 1995; V.D. Horobets. The Parliament of the Russian Federation. Moscow, 1998; S.A. Avakyan. The Federal Assembly — the Parliament of Russia. Moscow, 1999; I.V. Hrankin. The Russian Parliament. Moscow, 2001; O.N. Bulakov The two-chamber Parliament of the Russian Federation. St-Petersburg, 2003; E.V. Kovryakova. Parliamentary oversight: foreign experience and Russian practice. Moscow, 2005; Modern Parliament: theory, world experience, Russian practice / Editor-in-Chief O.N. Bulakov. 2005; Parliamentarism and political stability in contemporary Russia / V.N. Kolesnikov; NorthWest Academy of state service. St-Petersburg, 2010; V.A. Karpov. Russian parliamentarism: monograph. Moscow, 2012; V.E. Chirkin. The Upper chamber of a modern Parliament: comparative legal studies: monograph. Moscow, 2015. 11

The Parliamentary Law of the Russian Federation

The foundations of the parliamentary law are traditionally taught at the educational courses on constitutional law. It should be recognized that, despite the significant development of the set of rules, regulating the organization and operation of the federal Parliament and the legislative bodies of regions of the Russian Federation, including issues of popular representation, formation of the Parliament, control activities, mechanisms of the legislative process, responsibility of the legislative bodies and parliamentarians etc., there are many urgent problems of the parliamentary law in the Russian legal science that are not sufficiently developed and still remain disputable1. This book continues the many years standing author’s studies on the problems of parliamentarism and parliamentary law2 and aims to justify the methodological approaches to the study of the parliamentary law, its values and place in the system of the branch differentiation of law, identification of its main characteristics and content, prediction of its development. Features of this publication are the expansion of comparative legal research3 and analysis of the parliamentary factor in the implementation of the regional integration4. This study is published as a monograph, the structure of which generally follows the logic of the main institutions of the parliamentary law. Chapter One is devoted to the general theoretical approaches to the study of the parliamentary law; it shows the main directions of the institutional and normative formulation of the ideas of the parliamentarism in Russia; reveals the main stages and features of formation of the parliamentarism and parliamentary institutions in our country. Significant development of the legal framework of parliamentary activities allowed the authors to separate, as an independent, the paragraph on the sources of the parliamentary law. 1



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By the way, the number of works devoted to the parliamentary law is small. Among them, for example, ref.: O.N Bulakov., I.N. Ryazantsev. The parliamentary law of Russia: course of lectures / Editor-in-Chief O.N. Bulakov, Moscow, 2007; The parliamentary law of Russia: study guide. Ekaterinburg, 2008; I.V. Hrankin. The parliamentary law of the Russian Federation: course of lectures. Moscow, 2010. Parliamentary law of Russia: textbook / under the editorship of I.M Stepanov, T.Y. Khab­ rieva. Moscow, 1999; Lawmaking in the Russian Federation: scientific and practical textbook / under the editorship of A.S. Pigolkin. Moscow, 2000; Parliamentary law of Russia: textbook / under the editorship of T.Y. Khabrieva. 2d ed.; rev. and add. M., 2003; Abramova A.I. Legislative process in the Russian Federation. Moscow, 2005; Fundamentals of parliamentary law: scientific and practical guide / edited by T.Y. Khabrieva. Moscow, 2006; Saidov A.H., Khabrieva T.Y. Parliamentary Glossary: dictionary. Moscow, 2008. Talia Ia. Khabrieva, Sergueï Narychkine. Le statut de l`Assemblée fédérale de la Fédération de Russie // Revue française de droit constitutionnel. Avril 2015. № 101. Р. 87–89. Ref: S.E. Naryshkin, T.Y. Khabrieva. To the new parliamentary dimension of the Eurasian integration // Russian Law Journal. 2012. No. 8. 5–15 p.

Introduction

Chapter Two reflects the main features of the constitutional and legal status of the Russian Parliament and the legislative bodies of region of the Federation. By studying the functions of the Parliament, its competence, issues of relationships with other state authorities, the place and role of the Federal Assembly in the government system are revealed. Taking into account the new legislation, the authors reveal the mechanism of formation of the legislative public state power bodies in the Russian Federation and the organizational aspects of their work (internal structure, status of officials and bodies). Collegiality, as the only form of functioning of the Parliament, means exercise its powers through the joint development and adoption of decisions by its members. In this regard, status of the parliamentarian acquires the key importance. Chapter Three provides to the reader the types of the deputy mandate, rights and responsibilities of the members of the Parliament, guarantees of their activities, forms of their responsibility. The development of the modern Russian parliamentarism in the context of struggle and interaction between political parties and other political groups in process of the formation of the Parliament and during its work, made the authors of the monograph to extend these aspects at disclosing the characteristics of the status of the parliamentarian. The chapters devoted to the parliamentary procedures themselves, as legally regulated procedure, forming the basis for the competence implementation of the Chambers of the Parliament are an integral part of the study. The study of this variety of legal procedures is carried out in a logical sequence: Chapter Four presents the general procedural issues on the work organization of the Chambers of the Parliament, Chapter Five provides a detailed analysis of the procedures, allowing to systematically introduce the legislative process, each of its stages. In the modern conditions of lawmaking development, in the process of the formation of legally significant decisions, the probability to achieve a variety of objectives increases significantly when using the system of science-based set of techniques, methods, and other legal instruments. Chapter Six informs about the legal technologies in the parliamentary activities. Chapter Seven is devoted to the parliamentary control. Along with the well-known forms of control (deputy and parliamentary inquiry, control in budget execution, etc.) such a form as a parliamentary investigation is revealed, as well as the status of specialized parliamentary control bodies is considered. In the context of globalization and development of regional integration, having a significant influence on the activities of the legislative bodies, the issues of cooperation and activities coordination of their representative 13

The Parliamentary Law of the Russian Federation

bodies are of a great importance. Chapter Eight is dedicated to the current tendencies of the development of international parliamentarism, the forms of implementation of the inter-parliamentary cooperation at the multilateral and bilateral levels, as well as the basic of the supranational parliamentary bodies’ activities. Chapter Nine finishes the monograph. It is dedicated to the perfomance by the legislative machinery of the state power. This side of the parliamentary activity is rarely covered in the scientific and educational literature, while the successful implementation of its powers by the Parliament depends largely on the quality of the auxiliary structures, which provide organizational and technical, material, information, financial, legal, expert and analytical and other grounds for its effective functioning. The parliamentary practice continues to accumulate and improve. The new challenges and problems have occurred that require analysis, doctrinally grounded response and applied skills, so the study of the parliamentary law as in general theoretical, so in practical ways of researh will remain an urgent problem of the legal science. This book can be useful for all, who are interested in the problems of the parliamentarianism and the parliamentary law. The team of authors expresses sincere gratitude to Andrey Aleksandrovich Klishas — Doctor of Law, the Chairman of the Committee on Constitutional Legislation and State-building of the Council of Federation of the Federal Assembly of the Russian Federation, for his help while preparing this volume for being issued1. T.Y. Khabrieva, Academician of the Russian Academy of Sciences, Associate Member of the Academy of Comparative Law, doctor of Law, professor, Honored Jurist of the Russian Federation, Honored Jurist of the Republic of Tatarstan, Vice-president of the Russian Academy of Sciences, Director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Member of the European Commission for Democracy through Law (Venice Commission of the Council of Europe) 1



14

Коллектив авторов выражает благодарность за помощь при подготовке к публикации этого издания Андрею Александровичу Клишасу — доктору юридических наук, Председателю Комитета Совета Федерации по конституционному законодательству и государственному строительству Федерального Собрания Российской Федерации.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

§ 1. The parliamentarism as essential valuable basis of parliamentary law

The value of the parliamentarism as the constitutional-legal practice and specific theory is determined by its relation to the qualitative characteristics of the modern Russian statehood. The parliamentarism is a parliamentary law in effect. The term «parliamentarism» comes from the word «parliament»1. The parliaments currently exist in almost all countries of the world, including some countries of Muslim fundamentalism2. In the Russian and foreign science, there are different approaches to the concept of the parliamentarism. Foreign scientists usually do not give a definition of this concept, indicating only particularities of the parliamentary forms of government (parliamentary republic, for example in Germany and India, and parliamentary monarchy, for example in Great Britain and Japan), which differ from the absolute dualistic monarchy and presidential republic. In the domestic science of the constitutional law there are the different approaches to the definition of the «parliamentarism». According to the 1



2



The term «parliament» is derived from the Latin «parlare» — «to speak». Often, is pointed its French origin: «parler» also means «to speak». Thus, etymologically, in the name of that body is underscored the specificity of collegial decision-making — with a preliminary discussion. Other collective name of the elected representative body is the legislature (from the Latin «legislator» — «the legislator»). Under legislatures are meant the political institutions in which the power is vested to the representatives of the society. This term came into use in England in the XVII century during the protracted conflict between the King and the Parliament on the issue of who owns the legislative power, and a century later it is perpetuated in the United States to execution a representative assembly, controlled by the colonists (Ref: Comparative constitutional law / Editor-in-Chief V.E. Chirkin Moscow, 1996. 505 p.). Another meaning of the «legislature» is the term of powers of the legislative authority. Based on the idea of the caliphate (Sunnis) or immata (Shiites), the supporters of Muslim fundamentalism reject the need for elections and the Parliament itself, replacing it with an advisory board with the monarch, which includes influential Muslims (al-Shura). Management in such countries is carried out not on the basis of the representation of the people, but on the basis of consultations, such as establishes the Art. 9 of the Basic Law of the Sultanate of Oman in 1996. 15

The Parliamentary Law of the Russian Federation

most widespread, the parliamentarism is a special system of organization of the government, structurally and functionally based on the principles of the separation of powers, supremacy of law under the leading role of the Parliament in procedure to establish and develop the social justice and legal order. Broader understanding of parliamentarism is associated with the spread of such concept on the characteristic of the entire political system of society. It is noted that the modern constitutional science, taking into account a lot of new developments and institutions (development of the political parties system, increased importance of the elections and mass electorate, change of a deputy’s position and increase of his dependence on the parties, appearance of other media along with the press), greatly expands the approaches to the consideration of the constitutional problems. This allows us to speak about the parliamentarism in the broad sense, considering the role of the Parliament in the political system, in the relations with society and its institutions. In such understanding, the parliamentarism is in there where the Parliament plays an important role in the functioning of the mechanism of political power1. In the literature, the parliamentarism is determined as a political system, in which the «sovereign will of the people finds its embodiment in elected by the public and secret voting under multiparty system and separation of powers of the supreme representative institution that carries out a legislative activity and control over the executive authorities, and guaranties the protection of the interests of both majority and minority of the citizens»2. Other authors broadly define the parliamentarism as a political regime, characterized by the presence of democracy, separation of powers, their balance with each other in the dominant role of the Parliament elected by the people; and it is narrowly defined as the procedure and the result of the activities of the supreme and other representative bodies of public power elected by the people, which are inside the single branch of the legislative power3. In addition, some authors specify that it is a system of government, characterized by a distinct distribution of the legislative and executive functions under the formal supremacy of the representative legislative body — the Parliament in relation to other state bodies4. 1



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Ref.: The comparative constitutional law / Editor-in-Chief V.E. Chirkin Moscow, 1996. 511 p. I.P. Rybkin. The formation and development of the parliamentarism in Russia: Thesis of dissertation ... Doctor of Law. Moscow, 1995, 6–7 p. Ref.: V.E. Usanov The parliamentarism in Russia: constitutional and legal bases of formation and operation: Thesis of dissertation ... Doctor of Law. Moscow, 2007. Ref: Big legal dictionary / Editor-in-Chief A.Ya.Sukharev, V.D.Zorkina, V.E. Krutskikh. Moscow, 2004; I.V. Kalinsky, H.I. Ivanets, V.I. Chervonyuk. The constitutional law of Russia. Collegiate Dictionary / Editor-in-Chief V.I. Chervonyuk Moscow, 2002.  

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

Some authors, rejecting the approaches to the concept of the parliamentarism as the form of the parliamentary government, the form of the governance1, the principle of responsibility of the Government before the Parliament2, consider that parliamentarism is a «method of exercise of power, a special regime emerging between the legislative and executive power in each particular country, in which a leading role is played by the Parliament»3. In this way, the parliamentarism was considered as the «regime of relative, moderated separation of powers, which implies a fundamental independence of the supreme legislative and execution bodies. The Parliament does not govern directly in a parliamentary state. But it has an active influence on the governance, predicting to the government a program of activities and having in prossession legally guaranteed tools to insist on the implementation of this program»4. At that, the terms «leading position», «leading role» seem to be not quite certain. Do they mean a complete absence of parliamentarism in the presidential and semi-presidential republic, constitutional and dualistic monarchy? It is impossible to make a conclusion about the absence of the parliamentarism in the Russian Federation on the sole ground that in the Constitution of the Russian Federation, the Chapter, establishing a constitutional and legal status of the President of the Russian Federation, located before the Chapter, defining a constitutional and legal status of the Parliament. According to the scientists, the use of the concept of parliamentarism is incorrect, if a country has the Parliament, which does not wield a supreme power; such situation we observe only in a parliamentary republic and a parliamentary monarchy5. The parliamentarism arises and exists when the Parliament has the authority of legislator and control over the activity of the executive power6. The main criterion of the parliamentarism, which distinguishes it from any other form of government, is the supremacy of the Parliament. Only under the supremacy of the Parliament, a parliamentary system may exist. 1



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Ref. e.g.: A.A. Mishin. The constitutional (state) law of foreign countries. Moscow, 1996. 174 p.   Ref.: The Constitutional (state) law of the foreign countries / Editor-in-Chief B.A. Strashun B. 1-2. Moscow, 2000. 447 p.   M.A. Mohunova. The Scandinavian parliamentarism. Theory and practice. Moscow, 2001, 26–27 p.   K.N.Sokolov. The parliamentarism. Experience of legal theory of parliamentary system. St-Petersburg, 1912. 425–426 p. Ref.: M.V.Bahlay, V.A Tumanov. Small encyclopedia of the constitutional law. Мoscow, 1998. 301 p. Ref.: R.M. Romanov The concept and essence of the parliamentarism // Social and political journal. 1998. No. 4. 213 p. 17

The Parliamentary Law of the Russian Federation

At the same time in the literature, it is indicated that the main criterion of the parliamentarism is not the principle of the Parliament supremacy, but the formation and functioning of this body on the basis of the constitutional principle of the separation of powers. There is a point view that at such understanding of the parliamentarism there is no need to define the role of the Parliament in the system of the state bodies1. However, such a restrictive position may not be accepted. For example, in the literature the main features of the parliamentarism include representation, constant-paid work of deputies, their special social status, as well as a certain range of the matters of representative body (adoption of laws, establishment of the tax system and approval of the state budget, impact on domestic and foreign policy, formation of a number of state bodies, execution of parliamentary control), its specific forms, methods and style of functioning2. Here, as seen, we are not talking about the supremacy of the Parliament, although it is said about its very serious powers, possible only in the context of democratic political regime. Another interpretation does not connect the parliamentarism directly with the democratic political regime and generally assumes the principle existence of a collegiate representative (representing the people, classes, or only the aristocracy, nobility) body, usually elected, which has legislative (advisory) powers. This question anyway had to be deep in thought over by the historians of parliamentarism, since it has the methodological significance. Representative institutions are known for a long time, starting with the aristocratic and democratic republics of the Ancient World (the ancient Greek citystates, ancient Rome of the republican period), where they held at times a leading position, competing with the sole or oligarchic rule. In the Middle Ages the caste representative collegiate bodies were widely used. They anyhow restricted the absolute power of monarchs in many European countries (England, France, Spain, Poland, and others). It should be noted that in historical studies of the parliamentarism problems this term is used in the enlarged sence of the word3. This refers to the development of the idea of a parliamentary, representative government. Throughout the historical development of many countries the idea that the 1



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Ref.: I.V. Hrankin. The essence of the Russian parliamentarism // Constitutional and municipal law. 2005. No. 4. Ref.: S.A. Avakyan. The Federal Assembly — the Parliament of Russia. Мoscow, 1999. 26–29 p. Ref., e.g.: E.K. Hlushko. On the problem of parliamentarism in pre-revolutionary Russia // The separation of powers and parliamentarism. Мoscow, 1992. 86–102 p.; P.S. Hratsianky. The constitutional ideas and projects in Russia // The history of bourgeois constitutionalism of XVII-XVIII centuries. Мoscow, 1983. 239–274 p.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

most legitimate way to make responsible government decisions is making them by the representative body is asserted in the public consciousness. During the centuries-old practice the procedures of the formation, convocation, dissolution and operation of the representative bodies have been tryed, their relationships with other state bodies especially with the monarch and the executive power have been examined. Also, a lot of experience has gained in the legislative process, the execution of other powers, now owned to the modern parliaments, organizational support of the representative institutions. In the studies of contemporary constitutionalists the term «parliamentarism» is often used in a broader sense, when it is reffered to issues of parliamentarism in the developing countries, in the countries liberated from the totalitarian regime and others1. This approach allows to take into account the background of the modern parliamentarism and its transitional forms that exist in the conditions of the authoritarian and mixed political regimes. A lot of more specific problems of the modern parliamentarism and parliamentary law (formation, organization, forms of activity of a representative body, etc.) have a very long history, and this should not fall beyond the scope of the scientific attention. In the context of this understanding of the parliamentarism the negative experience of functioning of the collegial «representative» institutions in totalitarian states do not fall beyond the scope. Moreover, in this regard, the parliamentarism is not only the political and legal institution, but also a set of ideas and experience in the implementation of the representative power by the Parliament, doctrine of the Parliament, ideological and theoretical concept, acting as the scientific rationale for the existence of the Parliament2. The various sides of the parliamentarism, which are the subject of study (special form of government, role of the Parliament, special state regime, legal status of the members of the Parliament and others) are essential for the definition of this concept, but they are only the elements of the system. The content of this concept includes a significant ideological aspect, the system of value orientations concerning the proper organization and proper functioning of the state mechanism3. Therefore, it is difficult to give a universal definition to this political and legal phenomenon. 1



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Ref., e.g.: The comparative constitutional law / Editor-in-Chief. V.E. Chirkin Мoscow, 1996. 513 p. Ref.: R.M. Romanov. Parliamentarism: theory, history and modernity. Moscow, 2002. P. 276; N.A. Bohdanova. The parliamentary right in the system of the constitutional law // The parliamentary procedures: the problems of Russia and foreign experience. Мoscow, 2003. 29–30 p.; O.N. Bulakov. The two-chamber Parliament of the Russian Federation. St.-Petersburg, 2003. 9 p. Ref.: A.D. Kerimov. Understanding the parliamentarism and its development prospects in Russia // The citizens and the law. 2002. No. 7–8. 48 p. 19

The Parliamentary Law of the Russian Federation

The parliamentarism can be understood in different ways. Firstly, under the supremacy of the Parliament in the government system it exists only in the parliamentary monarchies and republics. Secondly, in the presence of actual current Parliament, which is possible in a democratic political regime, parliamentarism is recognized in the presidential and semipresidential (dualistic) republics. Thirdly, at the presence of an independent, self-acting, and as well limited in its activities Parliament, the problems of the parliamentarism typical for the modern statehood with a democratic, non-democratic or mixed political regime are considered. Fourthly, considering the idea of the collegial elected representative body, that makes the most important decisions for the society, we can speak about the problems of parliamentarianism in a global historical perspective. However, from the worldview approach it is acceptable to define the parliamentarianism as a system of governance in the state in which the Parliament legally has a leading role among supreme state authorities1. Based on the experience of many countries, the parliamentarism can be regarded as a system of governance in the state, which includes elections of national representation (the Parliament), its supreme (e.g. in the federations) and leading role in the state government system, execution of legal, personnel and control functions, application of parliamentary forms and methods of functioning on the basis of competition and co-operation of the members of the Parliament, representing different groups of society. This definition reflects the main point of the parliamentarism, although, of course, a state practice is multivariate. The parliamentarism as a special governance system in the country is inextricably connected with the existence of the Parliament. The Parliament is possible without a developed system of the parliamentarism. As noted, the Parliament is a universal phenomenon in the modern world, typical even for totalitarian regimes. The parliamentarism, on the contrary, is impossible without the Parliament. The attitude to the parliamentarism is different in political and scientific literature, in programs and practice of political parties’ activities and in various population groups. The significance of the Parliament and the parliamentarism, on the one hand, is sometimes overestimated, although a democratism of the Parliament is always relative, it largely depends on its structure (there were also reactionary parliaments); on the other hand, the modern Parliament and 1



20

Ref.: I.M. Stepanov. The parliamentarism and the democracy // Constitutional Reform in the Soviet Union: Current issues. Мoscow, 1990; The parliamentary law of Russia: study guide / Editor-in-Chief I.M. Stepanova, T.Y. Khabrieva. Мoscow, 1999.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

parliamentarism come under strong criticism for the inadequacy of representation of different social groups and for the defects of the electoral systems and electoral procedure. The Parliament has been criticized for slowness, inflexibility in decision-making, for incompetent members of the Parliament, etc. Such criticism is often fair, since the current period requires a quick reaction of the Parliament. However, without it, a system of a modern state is unthinkable. It constitutes a very important part of the achievements of modern civilization. The system and the elements of the parliamentarism should be distinguished. The parliamentarianism as a system is inherent only in the parliamentary forms of the government, but the various elements of the parliamentarism, to some extent, can exist with other forms of government. Unlike the term «parliament» the concept «parliamentarism» is not used in the constitutions, it has a doctrinal origin. However, constitutions sometimes referred to a parliamentary republic (Art. 1 of the Iraqi Constitution of 2005), or a parliamentary monarchy (Art. 1 of the Constitution of Spain of 1978), to the monarchy on a parliamentary basis (Art. 2 of the Constitution of the Principality of Liechtenstein of 1921), to a parliamentary system (the constitutional law of Sweden «Form of government» of 1974), to a parliamentary form of government (Art. 1 of the Constitution of the republican India of 1944), and even that «parliamentary system» was not able to achieve a dominant position in the country and was improper for it (Preamble of the Constitution of Myanmar of 2008). Such wordings are essential for the parliamentary system, but not identical to its definition1. The conceptual framework of the Constitution of the Russian Federation does not contain the terms of this kind; the form of government is not determined by the Basic Law neither as a parliamentary nor as a presidential republic. It is widely accepted, that in the developed form, the parliamentarism is carried out under the parliamentary forms of government, but every country has its own specific conditions, there are particularities of social and political system. Therefore, the natural presumption is that the parliamentary system can have different forms of expression, its own characteristics. There 1



In the constitutions of some presidential republics of Latin America is used a concept of «representative government» (Art. 85 of the Constitution of El Salvador of 1983), «representative form of government» (Art. 1 of the Constitution of Panama of 1972). It reflects the presence of the Parliament and local representative bodies, but not adequate to a concept of «parliamentarism», as in a presidential republic different system of government is used. The constitutions of such States referred to «Republic of the presidential type» (Art. 1 of the Constitution of Cyprus of 1960), about the «presidential form of government» (Art. 2 of the Constitution of Kazakhstan of 1995), or about the «form of a presidential republic» (Art. 1 of the Constitution of Turkmenistan of 2008).  21

The Parliamentary Law of the Russian Federation

are, as noted, elements of the parliamentarism under other than a parliamentary monarchy or a parliamentary republic forms of government. The peculiar features of the parliamentarism are also inherent to Russia. Along with the parliamentarism such government system as presidentialism is Emphasized1. The essence of the parliamentarism or presidentialism is not that the country has a parliament or a president, both of those bodies may be in the parliamentary and presidential republics. The main difference between these systems is in the procedure of formation of the government (and in the case of absence of collegiate government — in the procedure of appointment of the ministers), in relations of the supreme state power — a president, a parliament and a government, in their powers and methods of functioning, powers and accountability of a government (ministers). Theoretically, it is assumed, that under the parliamentarism a central position in the state government system takes a representative body — a Parliament, under the presidentialism — a President. In fact, the relationships of the public state power bodies in each of these systems can be different. In the presidential republic, for example in the United States, the Parliament can take a very important place in the state mechanism (only it controls the budget and property of the state), and under a parliamentary form of the government, the legally prime role of Parliament may actually be degraded. In a parliamentary monarchy of Great Britain, as in many other parliamentary republics and monarchies, the Parliament (Lower Chamber of the Parliament which has essential importance) is leaded by the government, and the Prime Minister through the majority of members of its party (the coalition of the parties). The parliamentarism and the presidentialism are not absolutely opposite systems, which is especially important to keep in mind when analyzing the political government system in Russia. The first of these systems has certain elements of the second and vice versa. In addition, each of them has its positive and negative sides. The authors of the constitutions try to combine all positive experience and eliminate, minimize the negative elements of the systems. The US researchers having analyzed 542 Constitutions, taken into account the conclusion of other researches about the «semi-presidential form» in the Fifth French Republic2, 1



2



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This system arose with the adoption of the USA Constitution in 1787, and most clearly presented in the «classical» presidential republics (the United States of America, Venezuela, Mexico and many other countries in Latin America, Asia and Africa). Ref. e.g.: A.I. Cherkasov. The presidentialism and parliamentarism in the countries of the modern world // State and law. 2012. No. 9. 35–43 p. Ref.: M. Duverger.Institutions politiques et droit constitutionnel. P. Éd 14-e. P.; Duverger M.A. New Political System Model: Semi-Presidential Government // European Journal of Political Research. 1980. No. 8. 165–87 p.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

came to the conclusion about the appearance in the modern conditions of the third government system — semi-presidential 1. There are also other forms of rapprochement of these systems, such as the rationalized parliamentarism. Russia shows its own form of parliamentarianism. The elements of the parliamentarism in their limited form were introduced to the Russian legislation along with the tsar’s Manifesto of 1905, published after the First Russian Revolution. The political parties were allowed and the State Duma was established and the State Council was formed. However, the laws needed the tsar’s approval (he had absolute veto), the State Duma did not form the government and did not have the right to express a vote of no confidence. Since the beginning of the Soviet period, the Russian consultative parliament (1906–1917) was abolished and a «decision-making» socialist parliament was established instead of it, although the term «parliament» itself in the USSR was almost unused, as the parliament was considered a bourgeois institution2. The parliamentarism was criticized for separation of the legislative and executive powers, for the absence of right to recall of deputies, for their privileged financial status3. However, under the Soviet system some elements of the parliamentarism were remained, the role of the representative institutions was not diminished4. For example, the government (the Council of the People’s Commissars, later — the Council of the Ministers) was legally formed by the Supreme Soviet and was responsible to it5. 1



2



3



4

5



Ref.: T. Ginsburg, J.A. Cheibub, Z.Elkins. Beyond the presidentialism and the parliamentarism: on the hybridization of Constitutional Form // Workshop on measuring law and institutions: Analytical and Methodological Challenges, Pompeu Fabra University, Barcelona; October 2–3. 2009. This term is insufficiently defined, in our opinion, it does not apply to Russia, although some Russian authors speak of a semi-presidential system and republic in our country. Ref. e.g.: O.I. Zaznaev. Semi-presidential system: theoretical and applied aspects. Kazan, 2006. The concept «Head of the State» in the USSR was avoided either, but usually the Head of the state in the USSR was considered a collegial body — the Presidium of the Supreme Council of the USSR, elected by the Supreme Council and responsible to it. Ref.: V.I. Lenin. Complete Works. V. 32. P. 153; V. 33. 92, 93 p. V.I. Lenin considered that «the benefits of the parliamentarism» should be connected with the direct democracy // V.I. Lenin. Complete Works. V. 33. 48 p. For more details, ref.: The Soviet state system. Realities, problems, ideas, arguments (1917–1940) / Editor-in-Chief Yu. L. Shulzhenko. Moscow, 2010. 245–246 p. In fact, the structure of the government was determined by the Political Bureau of the Central Committee of the Communist Party. The Political Bureau also established the main tasks of the government. The government (or rather some of its members) was responsible to this body. There was any report of the government to the Supreme Council of the USSR in practice (it was not assumed), the possibility of a vote of no confidence to the government by the constitutions was not admitted. 23

The Parliamentary Law of the Russian Federation

The elements of the parliamentarism in Russia began to develop gradually in the constitutional texts and in practice in the context of restructuring, announced in 1985. As a result, the Russian parliamentarianism was established in the Constitution of 1993. Its analysis shows that Russia’s model of the parliamentarism had an impact on some of the CIS countries. It differs from the models of other states of the former Soviet Union (for example, Ukraine, Uzbekistan and Turkmenistan), some Western European post-socialist states, and can be defined as a post-socialist Eurasian model. The features of the Russian model of the parliamentarism manifest themselves in the structure and relationships of the supreme bodies of the state, which allows to speak about such classification form of government as a presidential-parliamentary republic, in contrast, for example, in contrast to the parliamentary-presidential republic in Ukraine. The peculiarity of this model of the parliamentarism lies in the combination, when governing of the state of elements of the presidentialism and the parliamentarism with the domination, in our opinion, of the presidentialism elements. However, we should not forget that the general legislative function can be performed only by the Parliament, and the President of the Russian Federation may appoint a Chairman of the Government only with its consent, and under the Constitution of the the Russian Federation the Decrees of the President of the Russian Federation shall exactly conform to the laws. The President of the Russian Federation determines the main directions of domestic and foreign policy, but according to p. 2 of Art. 80 of the Constitution of the Russian Federation and he does it in accordance with the Constitution of the Russian Federation and federal laws. Thus, the elements of the presidentialism and the parliamentarism in the government system of the state are naturally joined. The Russian parliamentarianism has the following characteristics: obtaining by the President of the Russian Federation the consent of the State Duma on the appointment of the Chairman of the Government1; the right of the State Duma to express vote of no confidence to the Government of the Russian Federation; the right of the President to dissolve the State Duma in case of the second vote of no confidence to the Government or a single refusal of confidence; the presentation of the annual reports by the Government to the Parliament. 1



24

The appointment of the Head of the Government by the President is not an element of the presidentialism. Legally, it is the right of all Heads of States (including the powerless monarchs in Britain or Japan), while in the classical parliamentary republics and parliamentary monarchies a Head of the state does it formally by signing a deed of appointment (choice of a Prime Minister is determined by the ratio of powers in the Parliament, its party (now more often — coalition) majority).

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

In addition, in the government system of the Russian Federation take a prominent place the elements of the presidentialism: the right of the President to determine the main directions of the domestic and foreign policy of the state; to make a non-partisan choice and represent a candidate for the Chairman of the Government in its sole discretion1; to appoint individually the members of the Government; to directly lead the activities of some ministers (security officials ministers, the Minister of Foreign Affairs), other executive officials; to dismiss the Chairman of the Government2; to give instructions to the federal ministers and dismiss them at its own discretion3. Thus, the elements of the presidentialism and the parliamentarism in Russia are implementing in a mixed form of government with the dual responsibility of the Government to the Parliament and the President, wherein in practice, the second kind of the responsibility was so far major. Therefore, by the form of government, Russia is a presidential-parliamentary republic. The combination of the parliamentarianism and presidentialism elements is also reflected in the fundamental principles of personnel policy (in the procedure of some senior officials’ appointment, in the control function of the Parliament, etc.). However, some elements of the parliamentarianism have not yet received the necessary development in Russia. Many candidates for senior positions may be submitted only by the President of the Russian Federation singularly, the parliamentarians have no choice (situation is different in some foreign countries, such as Brazil and Colombia). The control function of the Parliament is relatively poor. Thus, the investigative commissions cannot be established by the Chambers, only the Joint Commission of the Chambers is possible4. 1



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The right to such representation under different forms of government always belongs to the Head of the state (such right is absent in a presidential republic of classical type, as there is no post of the Prime minister). In a parliamentary republic and a parliamentary monarchy, the party majority of the Parliament objectively determines a choice. In the Russian Federation, the President can choose the candidacy from the party (parties) of the majority, but he is not obliged to. This right is legally present under parliamentary forms of government: the Head of the State appointed the Prime Minister and ministers by his decision; therefore, he may dismiss them from office. But on the objective conditions of a parliamentary form of government, such a right is not used and cannot be used. In reality, such a right is applicable only in a presidential republic under the system of the presidentialism. This right is never used as a real right of the President to act at his discretion under the system of the parliamentarism (the President in terms of a parliamentary system only accepts the letters of resignation). The right of the President to dismiss the government or the ministers, in contrast, is typical for a presidential republic. In the national parliamentary practice, this commission was established once by the decision of one of the Chambers, but with the participation of the representatives of the other Chamber of the Parliament. By the Council of the Federation in September 2004, was created the Parliamentary Commission on Investigation the Causes and Circumstances of the Terrorist Act in Beslan of North Ossetia — Alania on September 1–3, 2004. 25

The Parliamentary Law of the Russian Federation

The particularities of the parliamentarism in Russia1 are connected not only with the position of the President, established in the Constitution of the Russian Federation, but also with the structure and everyday activity of the Parliament, which sometimes used its powers not to the full extent (for example, when without the necessary discussion it approved some draft federal laws). The problem of the professional development of all the parliamentarians remains urgent. It confirms the need to further improvement of the domestic experience of parliamentary activity in the light of the implementation of the ideas and values ​​of the parliamentarism. It is fair to say that the content of the Russian parliamentarism is largely determined not so much by the regulatory established place of the Parliament in the system bodies of state authority and its role in settlement of socially important issues, but by the level of the national consciousness. Therefore, the parliamentarism in Russia will develop in the wake of rising of legal consciouness and political activity of the people2. The parliamentarism, or at least its elements, are the social need; the government system in the context of democracy is inconceivable without them. Consequently, the parliamentarism in one or another form represents a human value, acquired in the process of formation of the state experience. § 2. The parliamentary law in the legal system of the Russian Federation

The parliamentary law can be defined as a special system of the legal principles and rules governing the internal structure of the Parliament and organizational relations associated with it, the process of the parliamentary activity itself, relations with other public authorities and the electorate. If in the constitutional law the primacy is given to the statutory and institutional group of the principles and rules, then in the parliamentary law — the procedural and organizational, technological rules have such priority. Frequently, the concept of the parliamentary law is dissolved in terms «the parliamentary procedures», «the parliamentary process», «the parliamentary proceedings» or identified with them. Meanwhile, a normative array of the parliamentary law, develops under the decisive influence of the principles and rules of the substantive law, in particular established by the Constitution. 1



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Ref. e.g.: Gerard P. Les specifites constitutionnelles Russes. L’état et le droitd’esten oust. Melanqés offerts professeui Michel Lesage. 2006. 29 p.   Ref.: I.V. Grankin. The essence of the Russian parliamentarism // Constitutional and municipal law. 2005. No. 4.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

In this regard, a question about the place of the parliamentary law in the legal system is important. In Russian legal science the discussions about the formation the new structural branches in the law system (such as the investment law, the transport law, the medical law, the migration law, and others) in recent years are carried out quite actively1, which can’t be said for the question concerning the place and role of parliamentary law2. The problems of the law system have always constituted a fundamental part of the theory of law. Legal doctrine intends to predetermine the tasks of rulemaking activity in order to that Russian law is functioning as organic whole. In accordance with the structure of law, the systematization and codification of legislation are conducted, inconsistencies and contradictions in it are eliminated, many issues of law application are solved, and legal technique is improved. The issue of the Russian (in the past — Soviet) system of law has been the subject of many lengthy scientific disputes, during which a variety of settlements was proposed: from the recognition of only two main branches of law — private and public3 to the allocation of many branches4. This dispute cannot be closed completely, as the law is a phenomenon that is constantly evolving. New spheres of the activity, previously not known relationships (e.g., the nuclear energy or space exploration) arise in the life. This objectively leads to the occurrence of the new legal rules, governing such relations. Would these rules constitute a special branch of law or become only a branch of the legislation or the parts of the traditional branches of the law (e.g., civil or administrative), can be found only after the specific studies. It should be noted that not all proposals of the repre1



2



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Ref. e.g.: A.G Bogatyriov. The Investment Law. Moscow, 1992; A.B. Litovka, P.I. Litovka. Medical Law — a complex branch of national law of Russia: formation, development prospects // Jurisprudence. 2000. No. 1. 81 p.; P. 15–27. V.A. Yegiazarov. Transport Law: the textbook. Moscow, 2007, 5–8 p.; T.Y. Khabrieva. Immigration Law of Russia: Theory and Practice. Moscow, 2008. Ref. e.g.: M.S. Salikov. The parliamentary procedural right — subsector of the constitutional and procedural law // Parliamentary procedures: the problems of Russia and foreign experience. Moscow, 2003. P. 37; T.Y. Khabrieva. The concept and place of parliamentary law in the law system // Russian Law Journal. 2002. No. 9; M.S. Salikov. Constitutional and procedural law as a science, branch and the scientific discipline // Law and Politics. 2000. No. 4; T.D. Zrazhevska. The procedural guaranties of the Constitutionalism // Russian constitutionalism: Problems and Decisions. Materials of the international conference. Moscow, 1999. Ref. e.g.: V.F. Popondopulo. The system of social relations and their legal forms (to the publication of the law system) // Jurisprudence. 2002. No. 4. 85, 96 p. Ref.: L.S. Galesnik. About problems of the Soviet law // Soviet state and law. 1957. No. 2. 112 p. 27

The Parliamentary Law of the Russian Federation

sentatives of the branches of law recognize branch of the law as independent are supported by theorists1. One point of view is that the parliamentary law is an integral part of constitutional law, carrying in itself its dynamic characteristics. This, perhaps, could be accepted if, in the branch gradation of law system the constitutional procedural law would occupy just as a definite place as a generally recognized constitutional law (such as «binary» branches: the administrative law — the administrative process, the civil law — the civil procedure, and so on). However, the term «constitutional procedural law» can be found usually in the materials of the constitutional-court proceedings in the constitutional or equivalent to them courts (in the Federal Constitutional Law of July 21, 1994 «On the Constitutional Court of the Russian Federation», Chapter IV is specially devoted to the principles of the constitutional proceedings)2. Recently, an independent review of constitutional litigatory process in respect to it as a branch of law, science and academic discipline has been attempted. Regarding the term «constitutional process», it is generally not used in a strictly legal vocabulary, being addressed to the entire democratic way of development, adoption and implementation of the Constitution. According to another position, which is not widely supported, the parliamentary law is regarded as a complete, independent branch of law, placed next to the constitutional law. It is also plenipotentiary as constitutional law; all of its components constitute a single coherent complex3. 1



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Ref. e.g.: A.I. Bobyliov. The modern interpretation of the law system and legislative system // State and law. 1998. No. 2. 22–27 p.; S.V. Polenina. Interaction of the law system and the legislative system in modern Russia // State and law. 1999. No. 9. 5–12 p.; The current state of the Russian legislation and its systematization (materials of the round table) // State and law. 1999. No. 2. N.V. Vitruk., describing the constitutional justice as a branch of law, speaks about the specifics of its subject and method of legal regulation — about the main criteria used to divide the law on branches. According to him, «Constitutional justice as a branch of law is a system of law rules, qualitatively governing the uniform set of social relations, developing in the process of organization and functioning of the constitutional control, exercised by the constitutional courts in the form of an independent type of proceedings — constitutional proceedings». Moreover, «the structure of constitutional justice as a branch of law is divided into two subbranches — a legal constitutional law and a legal constitutional process» (Ref.: N.V. Vitruk. Constitutional justice. Legal constitutional law and process: the textbook. Moscow, 1998. 38–39 p. Ref. also: Zh. I. Ovsepyan. The constitutional legal and procedural law: at the origins of the law, science and academic discipline branch // Jurisprudence. 1999. No.2. 196–212 p.; The constitutional legal proceedings: the textbook for IEI / Editor-in-Chief M.S. Salikov. Moscow, 2003, 2–8 p.; O.V. Kurtiyan. Features of realization of the constitutional proceedings principles: abstract of the Thesis of dissertation ... LL.D. Chelyabinsk, 2005. 12 p.). Ref.: The constitutional system of Russia. Vol. 2. The issues of the parliamentary law. Moscow, 1995. 5 p.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

«The parliamentary law is difficult to completely separate from the constitutional one, because, firstly, it came from the depths of the constitutional law, it is the product of its development, and, secondly, the rules of the constitutional law are an integral part of parliamentary law, its basic principles. However, the parliamentary law, not only demonstrated all the features of an independent branch of law, but also more and more segregated from the constitutional law»1. Indeed, this structure is well organized, continues to improve, enriching both within the state and through international exchange of experience, including with the countries having developed parliamentary traditions, as well as the countries where the parliamentary law is just being formed. This position allows to confidently reject the derogatory judgments about likening of parliamentary procedures to routine bureaucracy. Nevertheless, the question arises: whether that legal matter that is referred to as the parliamentary law, has all the necessary parameters and characteristics of the branch of law? That is, whether the parliamentary law has its specific, so to say, name subjects, methods and mechanisms of regulation. The parliamentary law grew out of the constitutional law, based along with it on the same «root system» — constitutionalism, has a Constitution as its main legal source. Traditionally, the basis of the legal status, formation, competence and activities of the supreme government bodies, including the Parliament, governed by the rules of the constitutional law. This principle remains unaffected nowadays. However, with the recognition and the embodiment of the principle of the separation of powers, with the acknowledgement of that great importance of the Parliament in the political process and the legal life of the country, and the subsequent rapid development of the parliamentary law, the latter occupies a special place in the constitutional law. A theoretical and practical situation emerges: the basics of parliamentary law remained in the constitutional law, but along with this, an array of the rules was appeared that isolated themselves in the parliamentary law. In the same way, for example, the municipal law comes. Apparently, this is a general trend of the development of Russian law. By its structure, the parliamentary law represent itself a peculiar set of rules: those are basic constitutional rules and other rules of the constitutional law. Parliamentary law has bilayer structure. Its base is in the Constitution; both general and specific constitutional rules are organically woven into the parliamentary law. In other branches of law, such as labor, 1



Ref.: The essays on the parliamentary law (foreign experience) / Ed. and with a preface by B.N. Topornin. 1993. I, V p. 29

The Parliamentary Law of the Russian Federation

land, the constitutional rules are the beginning of their development. The parliamentary law includes substantive and procedural rules, but with a significant predominance of the latter. It must be admitted that the parliamentary law has a certain specificity of the subject and method of the legal regulation — the main criteria used in the construction of the law system. Firstly, in a common for constitutional and parliamentary law field of public relations, the parliamentary law has its particular aspect — organizational, procedural relationships. Secondly, the legal constitutional regulation is characterized by the methods based on power-mandatory basis, but the parliamentary and legal regulation uses the methods which are based primarily on the principles of the coordination and harmonization. Thirdly, material side of its regulatory structure prevails in the mechanisms of the constitutional law, but in the mechanisms of the parliamentary law — the procedural, organizational enforcement aspect. The subject of the parliamentary law includes two conventionally delimited groups of the public relations. Within the first, the purpose of the Parliament is revealed, that is primarily a building of relations between the Parliament as a representative and legislative body and the people — the source of power, as well as the relations of the inter-institutional nature, which are denoted to determine the place of the Parliament in the system of the separation of powers. The second group of relations is much larger in volume — those are organizational, procedural relations — parliamentary procedures, parliamentary processes, that is, the circle of relations, which could be defined as the proper parliamentary. But the parliamentary law cannot be called as a constitutional and procedural law for the reason that the parliamentary procedures are only the part of the procedures which define the way the supreme government bodies are formed and interact; this is not the ratio of criminal and criminal procedural law, civil and civil procedural law. At the same time, the idea of the parliamentary law only as a procedural, remedial should be corrected according to the fact that it develops under the influence of the rules and principles of the constitutional law and is based on a the substantive rules, directly related to the constitutional law. However, it should be taken into account, that the rules of the constitutional law because of their specificity and the fundamental nature, somehow always are the basis for any branch of law. On the other hand, the parliamentary relations (both internal and external nature), rooted in the constitutional legal relations, represent a quite extensive independent body of legal relations mainly of organizational nature, governed mainly by the acts of a regulatory nature. 30

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

The subject of the legal regulation is the primary, but not the only factor determining the separation of law branches. A special method of the legal regulation is important either. The parliamentary law, at least at the current stage of its development, has no distinctive methods and mechanisms of the legal regulation. The parliamentary law uses imperative and power methods of impact, which do not exclude the use of all possible coordinating methods of impact, and in many cases the use of conciliation procedures and other mechanisms, which facilitate the adoption of coordinated decisions is encouraged. In other spheres of the constitutional law there are also relations, in which are prevalent the conciliation and coordination procedures (federalism) are prevailed or that are very carefully regulated by the federal government (local self-government). But they are involved into a less extent than in the parliamentary law. Currently, a specific for the «parliamentary law» branch regulating mechanism cannot be detected- a special coupling of rules, legal relations, individual acts, which manifest the features of the method in action. The parliamentary law does not have its own remedies of protection and defense of regulated relations. This is done by the sanctions, assigned by the norms of constitutional, criminal and administrative — delictual law. Thus, the recognition of the parliamentary law as a branch of law is disturbed not by the conservatism of scientific thinking, not allowing to perceive the «latest trends and regulations that meet the latest stage in the development of social events and processes»1, but the objective circumstances — namely, the absence of a full set of systemically important factors for the branch of law. Whatever, parliamentary law was seen as a special branch, there are more reasons to consider it as a part of the constitutional law. Undoubtedly, the parliamentary law should be considered within the constitutional one taking into account its humanistic foundations. Its consideration as an independent consolidation of legal rules depends largely on the technology of the parliamentarism development, enhancing the role of procedural rules not only in the activity of the Parliament, but other supreme government bodies, from the sequence of the understanding of these phenomena by national science. It should also be recognized that the constitutional law has procedural security mechanisms. Most of them lie in the parliamentary law, the main task of which is the bringing of the parliamentarism into operation through the system of rules and regulations, devoted for its substantive and procedural security. In principle, it is the responsibility of the constitutional law, 1



V.M. Syryh. Introduction to the Theory of education law. Moscow, 2002. 293 p. 31

The Parliamentary Law of the Russian Federation

but also widely and closely formalized in the parliamentary law. The parliamentary law is simply unable to be formed in the formation of adjacent to the constitutional law rules and institutions, because the Constitution itself is oriented to the procedural streamlining of the relationships of the various kinds and at different levels. One matter is intraparliamentary relationships and procedures (legislative, supervisory, organizational); the second — inter-institutional (the President — the Parliament — the Government — the Judiciary); the third — federal and institutional (the Federal Assembly — the Legislative bodies of the regions of the Federation); the fourth — the procedures in relations of public legal responsibility (the Parliament — the Elective body, the Electorate). The multiplicity and diversity of procedures make it difficult to formalize them in any single codified act of parliamentary law. They are dispersed on a variety of sources, and not only the law itself. However, a clear understanding of what structural element of the constitutional law is a parliamentary law has not been achieved — a sub-branch or an institution. When referring to the academic literature on the constitutional law, it can be seen that in training courses, in particular, written by the authoritative scientists and mainly devoted to the use in the educational process, in the consideration of the constitutional law system are usually distinguished institutions that in enlarged form are the bases of the constitutional system, bases of the legal status of man and citizen, federal structure of the state, the system of state power and local self-government system1. It is understood that the parliamentary law is entering into the latter institution2. The same position has been affirmed in the academic literature on constitutional law of foreign countries3. «Often, these institutions themselves differ by a complex internal structure. Accordingly, they include factional subdivisions, which are also commonly referred to as the institutions. The mechanism of the state power includes such institutions as the head of the state, the government, the parliament, the judiciary. Sometimes 1



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In a science of the constitutional law were even expressed the proposals that constitutional and legal institutions are only a set of rules, appearing as a part, element of the law system (Ref.: E.I. Kozlova, O.E. Kutafin. The constitutional law of Russia: the textbook, 4th ed., rev. and am. Moscow, 2010. 14 p.). M.V. Baglai expands the list of constitutional and legal institutions, indicating among them the institution of the legislative power (Ref.: M.V. Baglai. Constitutional law of the Russian Federation: the textbook, 6th ed., rev. and am. Moscow, 2007). Ref. e.g.: O.N. Bulakov, I.N. Ryazantsev. The parliamentary Law of Russia: lectures / Editor-in-Chief O.N. Bulakov. Moscow, 2007, 9 p. Ref.: The constitutional law of foreign countries: the textbook / Editor-in-Chief M.V. Baglai, Yu.I. Leibo, L.M. Entin. Moscow, 2000. 33 p.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

the individual institutions integrate such a large number of legal norms and are so complicated that the term «law» is used to them. For example, the electoral law, the parliamentary law».1 But some authors consider the structure of the branch of the constitutional law more complex2, separating in it not only the institutions but also sub-branches, paying attention to such element as a parliamentary law3. In the works of the authors who are specialized in the problems of the parliamentary law, becoming increasingly widespread is a point of view, according to which the parliamentary law is considered as a sub-branch of the constitutional law4. This position seems to be most acceptable. Despite the lack in theory of law of tested criteria of differentiation of sub-branch and institutional structures, as a sub-branch of the law is generally recognized the association of several related institutions of the same branch of the law, the external expression of which is the existence of standards and principles inherent in these legal institutions. Considering that in the composition of the parliamentary law there can be distinguished the groups of rules that determine and fix the status of the parliamentarian, legislative process, parliamentary control, etc., and they can form separate institutions, combined with the basic principles of functioning of the representative body (separation of powers, independence, selectivity, representation, collegiality, etc.), the conclusion about the presence in the structure of the constitutional law of sub-branch of the parliamentary law is quite justified. 1



2



3



4



In the same. There is another explanation: «The constitutional norms, rules of the regulations of the Chambers governing the organization and internal structure, competence, legal procedure, and the rights and duties of the deputy, constitute a public-law institution of the Parliament» (Ref.: A.A. Mishin. Constitutional (state) law of foreign countries: the textbook. Moscow, 1996, 6–7 p.). Ref., e.g.: The concept of development of the Russian legislation / Editor-in-Chief T.Y. Khabrieva, Yu.A. Tikhomirov. Moscow, 2010. 124 p.; S.A. Avakyan. The constitutional law of Russia: training course: in 2 vol. Moscow, 2005. V. 1. 77–79 p.; O.A. Baboshin. On the question of the system of the constitutional law branch of the Russian Federation // Russian Law Journal. 2001. No. 2. 86 p. On the selecting of the parliamentary law as a sub-branch of the constitutional law, Ref. e.g.: V.E. Chirkin. The constitutional law of the foreign countries: the textbook. Moscow, 2002; Constitutional (state) law of the foreign countries: in 4 vol. V. 1-2: general part: the textbook / Editor-in-Chief B.A. Strashun. Moscow, 2000; Yu.A. Tikhomirov. The development of the constitutional law theory // State and law. 1998. No. 7. 6, 7 p.; the constitutional legislation of Russia / Editor-in-Chief Yu. A. Tikhomirov. Moscow, 1999, 17–18 p. Ref. e.g.: A.S. Avtonomov. The law ontology of the policy: the building of a system of categories. Moscow, 1999. 312 p.; V.D. Horobets. The constitutional and legal status of the Parliament of the Russian Federation: Thesis of dissertation abstract of the Doctor of Law Moscow, 2000, 18 p.; The parliamentary Law of Russia: methodical complex / A.N. Kokotov, M.I. Kukushkin, S.E. Nesmeyanova and others. Ekaterinburg, 2006. 33

The Parliamentary Law of the Russian Federation

It should be noted, that the specifics of the parliamentary law is in its two-levelness, explained by the versatility of the parliamentary relations processes of development. But unlike other two-level branches (sub-branches) of the law the subject of regulation of parliamentary law, — is that the Federal Parliament and the Parliaments of the regions of the Russian Federation are not subordinated, do not constitute a single structural and organizational mechanism. At the same time, the principle of the unity of the state authority assumes the organization of functioning of the legislative power of both the federal and regional levels, in accordance with the constitutional system on the unified constitutional principles. It should be noted that the regional level of the parliamentary law is characterized by a wide variety of legal rules, regulating the similar relations. This is obviously due to the variety of approaches of the legislators to the regulation of those or other legal relations; social and political, economic, geographical, national and other peculiarities of the development of a certain region of the Russian Federation as well as the heterogeneity of the scientific and legal potential of personnel structure of the legislative bodies. The adoption of the Federal Law of October 6, 1999 No. 184-FZ «On the General Principles of Organization of Legislative (Representative) and Executive Bodies of the Regions of the Russian Federation» to a large extent eliminated the diversity of approaches of the legislators of the regions of the Russian Federation to the regulation of relations, forming the subject of the parliamentary law, and contributed to the development of these relations in the kind of legality and compliance with the federal legislation. Thus, the final formation of the parliamentary law as part of the constitutional law is impossible without both theoretical and practical understanding of regional level of the parliamentary law. § 3. The sources of the parliamentary law

The modern period of development of the parliamentarism in Russia is characterized by a rather volumetric system of sources of the parliamentary law, among which are two sets: the legal and doctrinal. The first one, legal set itself, contains normative legal acts. At the federal level, it is the Constitution of the Russian Federation, federal constitutional and federal laws, decrees of the President of the Russian Federation and the regulations of the Government of the Russian Federation, regulations and other acts of the Federal Assembly. Especially such new for the modern Russian legal system kinds of acts as the generally recognized principles and norms of the international law should be mentioned. At the level of the Russian Federation regions, such sources are the constitutions 34

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

(charters), laws and acts of the legislative bodies of the Federation regions, senior officials of the Russian Federation regions. The Constitution of the Russian Federation in addition to establishing the general principles of the functioning of state bodies in a democratic federal law-governed state with a republican form of government, the state authority in which is based on the principle of the separation of powers, directly regulates the legal status of the Parliament: the principles of the formation, structure, mandate, methods of relations with other authorities. In the course of the activity of the Federal Assembly in both of its Chambers the questions concerning the uncertainty of understanding of a number of constitutional statutes are repeatedly raised. These circumstances, together with the poor practice of the parliamentary traditions and customs led to the high importance of the legal concept of the Constitutional Court of the Russian Federation, which represents the judicial interpretation of legal concepts, rules, principles, institutions, exerting a direct influence on the sphere of the constitutional and legal reality1. Thus, by virtue of the decisions of the Constitutional Court the mechanism of the legislative process is deployed, though it is enshrined schematically in the Constitution of the Russian Federation. The Constitutional Court gave a definition of the concepts «adopted federal law» and «total number of deputies», made the necessary explanations of the provisions on the procedure for the adoption of amendments to the Constitution, on the procedure for the approval by the Council of the Federation federal laws adopted by the State Duma, on the mechanism to overcome by the Federal Assembly of the suspensive veto of the President of the Russian Federation, on the procedure for the dissolution of the State Duma, on the procedure of giving an authentic explanation of the federal laws, and others2. In addition, the Court has resolved disputes over jurisdiction and clarified the authority of the Council of the Federation in respect to the Prosecutor General of the Russian Federation, the powers of the President in 1



2



On the legal nature and content of the legal concepts of the Constitutional Court of the Russian Federation for more details ref.: N.S. Volkova, T.Y. Khabrieva. The legal concepts of the Constitutional Court of the Russian Federation and the Parliament. Moscow, 2005. Ref.: The Resolutions of the Constitutional Court of the Russian Federation of March 23, 1995 No. 1-P in the case of the interpretation of Part 4 of Article 105 and Article 106 of the Constitution of the RF // CL of RF. 1995. No. 13. Art. 1207; of April 12, 1995 No. 2-P on the Interpretation of Articles 103 (part 3), 105 (parts 2 and 5), 107 (part 3), 108 (part 2), 117 (part 3) and 135 (part 2) of the Constitution of the Russian Federation // CL of RF. 1995. No. 16. Art. 1451; of October 31, 1995 No. 12-P on the Interpretation of Article 136 of the Constitution of the Russian Federation // СL of RF. 1995. No. 45. Art. 4408; of April 22, 1996 No. 10-P in the case of the interpretation of certain provisions of Article 107 of the Constitution of the RF // CL of RF. 1996. No. 18. Art. 2253. 35

The Parliamentary Law of the Russian Federation

respect to the procedure of signing of the federal laws adopted by the State Duma and approved by the Council of the Federation and so on. Considering the role of the legal concepts of the Constitutional Court in the development of the parliamentary law in Russia, we underline their importance for the formation of its regional level, i.e., that part of the parliamentary law, which covers relations defining the constitutional position of the legislative bodies of the Russian Federation. Thus, among the legal concepts of the Court, the most important are those concerning the legitimacy of publication by the region of the Russian Federation of his own regulatory legal act on the joint jurisdiction of the Russian Federation and the region of the Russian Federation in the absence of regulation of such matters at the level of the federal law; the need to respect the constitutional principle of unity of state power, which means, in particular, building a relationship of legislative and executive bodies of the regions of the Russian Federation on the basis of the federal scheme, i.e. the independence of each of the branches and their simultaneous interaction for achievement a balance of their powers and compliance with the system of checks and balances; the unconstitutionality of the expansion of the concept of «deputy immunity» in the field of criminal and administrative liability in respect of deputies of legislative (representative) bodies of the regions; obligatory participation of the executive branch in the legislative process in the regions of the Russian Federation, which promulgates (signing and publication) the laws as an element of ensuring of the implementation of the separation of the powers mechanism1. 1



36

Ref., e.g.: The Judgement of the Constitutional Court of the Russian Federation of November 30, 1995 No. 16-P in the case on the constitutionality of Articles 23 and 24 of the Provisional Regulations on the activities of deputies of the Kaliningrad Regional Duma, approved by the Kaliningrad Regional Duma of July 8, 1994; of February 1, 1996 No. 3-P in the case on the constitutionality of some provisions of the Statute — Basic Law of Chita region; of April 30, 1997 No. 7 in the case concerning the constitutionality of the Presidential Decree as of March 2, 1996 No. 315 «On the Procedure of Postponement of Elections to Legislative (Representative) Bodies of State Power of the Regions of the Russian Federation», the Law of Perm Region of February 21, 1996 «On the Election of Deputies of the Legislative Assembly of Perm Region» and Part 2 of Article 5 of the Vologda region of October 17, 1995 «On the Procedure of Rotation of the Legislative Assembly of the Vologda Region» (as amended on November 9, 1995)»; of January 18, 1996 No. 2-P in the case on the constitutionality of some provisions of the Constitution (Basic Law) of Altai territory; of December 10, 1997 No. 19-P in the case on the constitutionality of some provisions of the Constitution (Basic Law) of the Tambov Region; of May 29, 1998 No. 16-P in the case on the constitutionality of Part 4 of Article 28 of the Law of the Republic of Komi «On State Service of the Republic of Komi»; of April 12, 2002 No. 9 in the case concerning the verification of Articles 13 and 14 of the Federal Law «On General Principles of Organization of Legislative (Representative) and Executive Bodies of the Regions of the Russian Federation» in connection with the complaint of

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

The Constitutional Court also makes a significant contribution to the development of the theory of the parliamentary law. The court revealed such important for parliamentary law principles like the principles of the separation of powers, federalism, primacy and unity of people’s power, autonomy of local government system and many others. Thus, the scientific innovation for the constitutional and parliamentary law was the introduction of the term «parliamentary immunity». It is the Constitutional Court, which through the causal interpretation of the Basic Law officially introduced this term in the scientific and practical turn1. Previously, to describe the restriction of the use in relation to the parliamentarian of measures of criminal and administrative influence, often the term «deputy immunity» is used. The approbation of the term «parliamentary immunity» indicates the renewal and development of the conceptual legislative machinery of the national constitutional and parliamentary law, its rapprochement with the terminology Western constitutional and legal doctrines. Among federal laws directly governing the status of the Parliament, the basic nature has the Federal law of December 3, 2012 No. 229-FZ «On the Formation of the Council of Federation of the Federal Assembly of the Russian Federation», the Federal Law of May 8, 1994 No. 3-FZ «On the Status of a Member of the Council of Federation and the Status of the Deputy of the State Duma of the Federal Assembly of the Russian Federation», the Federal Law of October 6, 1999 No. 184-FZ «On the General Principles of Organization of Legislative (Representative) and Executive Bodies of the Regions of the Russian Federation». A significant part of the federal laws details the powers of the Federal Assembly Chambers. Among them, for example, the Federal Constitutional Laws of July 21, 1994 No. 1-FKZ «On the Constitutional Court of the Russian Federation», of December 17, 1997 No. 2-FKZ «On the Government of the Russian Federation», of February 26, 1997 No. 1-FKZ «On the High Commissioner for Human Rights in the Russian Federation», of May 30, 2001 No. 3-FKZ «On the State of Emergency», of December 17, 2001 No. 6-FKZ «On the Procedure of Admission to the Russian Federation and Formation in it a New Region of the Russian Federation», of January 30, 2002 No. 1-FKZ «On the Martial Law», the Budget Code of the Russian

1



the citizen A.P. Bykov, as well as the requests of the Supreme Court and the Legislative Assembly of the Krasnodar Region. Ref.: Resolution of the Constitutional Court of the Russian Federation of February 20, 1996 No. 5 in the case concerning the constitutionality of the provisions of the Parts 1 and 2 of Article 18, Article 19 and Part 2 of Article 20 of the Federal Law of May 8, 1994 «On the Status of Deputies of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation». 37

The Parliamentary Law of the Russian Federation

Federation, Federal Laws of January 17, 1992 No. 2202-I «On the Prosecution of the Russian Federation» of April 5, 2013 No. 41 FZ «On the Audit Chamber of the Russian Federation», of June 23, 1995 No. 93-FZ «On the Procedure of the Russian Federation Provision Military and Civilian Personnel Participation in Operations for Maintenance or Restoration the International Peace and Security», of March 4, 1998 No. 33-FZ «On the Procedure of Adoption and Entry into Force the Amendments to the Constitution of the Russian Federation», of June 12, 2002 No. 67-FZ «On the Basic Guaranties of Electoral Rights and the Right to Participate in the Referendum of Citizens of the Russian Federation», of July 10, 2002 No. 86-FZ «On the Central Bank of the Russian Federation (Bank of Russia)», of January 10, 2003 No. 19-FZ «On the Elections of the President of the Russian Federation», of April 4, 2005 No. 32-FZ «On the Public Chamber of the Russian Federation», of December 27, 2005 No. 196-FZ «On the Parliamentary Investigation of the Federal Assembly of the Russian Federation». The parliamentary regulations occupy a special place among the regulatory sources of the parliamentary law. These regulations are the special series of acts, defining in detail the internal structure and activity of governmental and non-governmental organizations, their central and regional bodies. As a rule, they are adopted by these bodies on the basis of laws that determine their legal status1, and in accordance with them. The parliamentary regulations are legal acts, which combine and systematize the norms and regulations, establishing and specifying on the basis of the Constitution the legal status of the Parliament, the procedure of its organization and forms of activity. The parliamentary regulations is in fact a parliamentary code, built under the scheme: internal structure and bodies of the Parliament; the operating procedure; the legislative and administrative control procedures; international inter-parliamentary cooperation and others. According to the established international practice, parliamentary regulations are adopted, usually, by the parliaments or their chambers, not only under the title of «rules», but also in other forms (for example, in France — Organic law, in the USA — Permanent rules of the Chambers of Congress, in Sweden — Riksdag Act). Both Chambers of the Russian Parliament act on the basis of their regulations. In accordance with the Constitution of the Russian Federation, each Chamber of the Federal Assembly adopts the regulations and solves issues of the internal procedure for its work (p. 4, Art. 101). 1



38

E.g., according to the Art. 27 of the Federal Constitutional Law «On the Government of the Russian Federation» in accordance with the Regulation of the Government of the Russian Federation is carried out the preparation and conduction of its meetings.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

Recognizing the universal character of the parliamentary regulations, we consider some legal properties of these acts. The Constitution regulates the general principles of the establishment and functioning of the Parliament, but it does not regulate many of the procedural aspects of parliamentary activities, thereby avoiding the turning of the Basic Law of the State into the rules of the Parliament. However, the constitution does not assume consolidation of the regulations as the constitutional and legal imperative. The regulations of the Chambers in relation to the Constitution have an auxiliary value1. According to the world constitutional practice, it is quite difficult and not always possible to withstand the parameters in the proper placement of the material and procedural collection. Such disparities and gaps are identified by the practice very fast, suggesting the rational ways of improving both the Constitution and the Regulations by adding to them hierarchically defined in its statute amendments and additions2. There is a problem of the legal value and authority of the parliamentary rules in the system of similar acts of other bodies of state authority3. In particular, almost all of them have their own rules for the preparation, introduction and support of draft laws, as well as interaction with other subjects of the legislative process. In addition, the causes of many failures in legislative and other activities of the parliaments often lie in the fact that parliamentary regulations are considered to be as to internal acts, and increasingly that there is a doubt about the capabilities of the chambers to develop independently the constitutional provisions concerning the passage of draft laws. In this regard, the 1



2



3



Ref. O.E Kutafin: Sources of Constitutional Law of the Russian Federation. Moscow, 2002. 109 p. Domestic constitutional practice in the initial stage of the formation of modern parliamentarism knows examples of violations by the regulations of the Chambers of the Federal Assembly of constitutional principles of the Parliament of the country functioning (for example, failure to comply with the principle of representation in decision-making). At the same time, the experience of control activities of the supreme legislative body of the government required to make appropriate changes to the Basic Law of Russia. E.g., some authors believe that the regulations is only an internal document, corporate act (Ref.: Yu.A. Dmitriev Regulation is the legal basis of the Parliament of Russia activities // Representative Power — XXI century. 2006. No. 3. 8–10 p.), while others equate its power to the law (Ref.: E.V. Kolesnikov Sources of Russian constitutional law. Saratov, 1998. 73 p.), and the French explorer Pierre Eugene describes it this way: «by sight it is not more than the internal law of the meeting, not more than a set of regulations devoted to methodical conduction of meetings, where there are conflicting views. In fact, it has frequently greater influence than the Constitution» (Quotes by B.S. Krylov. The Parliament of bourgeois state. The political essence and forms of the Parliament and the parliamentarism at the current stage. Moscow, 1963. 168 p.). 39

The Parliamentary Law of the Russian Federation

question on the need to work out a legislative act, governing issues of the status of the Parliament, its interaction with other supreme government authorities was discussed for many years, although the Russian Constitution does not stipulate the adoption of such federal constitutional law1. The proposals on special regulation of the legislative process are not new2. The initiative draft law of the academic lawyers, proposed in 80-ies of XX c., was considered by the commissions of the supreme legislative body. In 1996, the draft of the federal laws «On the Normative Legal Acts in the Russian Federation» and «On the Procedure of Adoption of Federal Constitutional Laws and Federal Laws» were adopted by the State Duma in the first reading3. The adoption of the law on normative legal acts is seen as the settlement of many problems, such as: interaction of the Parliament and other supreme government bodies in the legislative process in order to improve its effectiveness; development of the constitutional provisions on the mechanisms of representation in the Chambers of the Parliament; settlement of the relations of the Chambers, system and status of their commissions and committees, procedure of their work4; legal responsibility of parliamentarians; lobbyism; status of the factions, etc. 1



2



3



4



40

For example, in 2005 a group of deputies of the State Duma developed a draft of the Federal Constitutional Law «On the Federal Assembly of the Russian Federation». (Ref.: A draft of the federal constitutional law «On the Federal Assembly of the Russian Federation», initiated by the club «Democratic Alternative» and the Independent Institute of elections // Law and Life. 2005. No. 84 (7).) In the report of the Council of Federation of the Federal Assembly of 2005 on the status of legislation in the Russian Federation have been substantiated the concepts of the drafts of the Federal law «On the Federal Assembly — the Parliament of the Russian Federation», developing the constitutional powers of the Parliament and the Federal laws «On normative legal acts of the Russian Federation» and «On the procedure of adoption of federal constitutional laws and federal laws». Ref. e.g.: I.F.Kazmin, S.V. Polenina. The law about the laws: Problems of edition and content // Soviet state and law. 1989. No. 12. P. 3–9; A.S. Pigolkin, I.F. Kazmin, T.N. Rakhmanina Initiative draft of the Law «On Normative Legal Acts of the Russian Federation» // State and Law. 1992. No. 7. 76–86 p.; Concepts of development of the Russian legislation / Editor-in-Chief T.Y. Khabrieva, Yu.A. Tikhomirova, Yu.P. Orlovsky Moscow, 2004. In a number of foreign countries for many years, there are special laws and other regulations on lawmaking. For example, in Japan in 1898 was adopted the General provision of the laws, of more than two decades the law of regulatory acts is valid in Bulgaria, in 1987 a law on lawmaking was adopted in Hungary. There are laws on the legal acts in Azerbaijan, Belarus, Armenia. For example, in the Russian Soviet Federative Socialist Republic was acting the Law of November 21, 1991 No. 1914-I «On the Standing Commissions of the Chambers and the Committees of the Supreme Council of the RSFSR»// Bulletin of Congress of People’s Deputies and Supreme Council of the RSFSR. 1992. No. 4. Art. 131.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

Lasted for a certain time intraparliamentary structural reconstructions, modification of the procedure of the chambers work, caused in particular by the periodic renewal of the chambers’ membership, as shown by the practice, had as a consequence constant changes of the provisions of parliamentary rules. Therefore, it was considered that there easily could be cases, in which adequate for their period rules would considerably slow down the legislative process in the future, since as no longer meet the current realities. And if such rules were established by the federal law, their change would require considerable time and effort1. But the modern development of the legislative regulation of the status of the Federal Assembly of the Russian Federation requires the creation of new, more systematic forms of regulation of its activities. In most foreign countries, as a rule, the status of the Parliament is regulated by the Constitution and the procedure of its activities is established by the rules. At the same time, some countries have adopted laws on parliaments2. The modern context of the development the parliamentarism actualizes the issue of regulation of the status of the Russian Parliament by federal constitutional law. Of course, the most consistent decision of the problem would be the introduction of relevant amendment to the Constitution of the Russian Federation (Art. 94), complementing the statutory provisions, determining the Federal Assembly as the Parliament of the Russian Federation — representative and legislative body of the Russian Federation, indicating the form of legal regulation of the status of this body. However, it should be borne in mind that the adoption of the federal Federal Constitutional Law «On the Federal Assembly of the Russian Federation» by itself does not violate the constitutional system as it defined in Chapter 1 of the Constitution of the Russian Federation. On the contrary, the logic is restored, when the status of each of the three branches of government (legislative, executive and judicial) is specified in accordance with the federal constitutional law. In addition, it becomes 1



2



Ref.: I.I. Shuvalov. The Government of the Russian Federation in the legislative process: Thesis of dissertation ... Doctor of Law. Moscow, 2003. 23 p. Canada — The Act of the Parliament of 1985, Japan — Act of Parliament of 1947, France — Ordinance on the activities of the Chambers of Parliament of 1958, Algeria — Organic Law on the Lower and Upper Chambers of 1999, the Republic of Belarus — the Law of 2008 «On the National Assembly of the Republic of Belarus», Kazakhstan — Constitutional Law of 1995 «On Parliament of the Republic of Kazakhstan and the status of its deputies». Along with these laws there are the regulations of the Parliaments. 41

The Parliamentary Law of the Russian Federation

possible to define the powers of the Chambers of the Federal Assembly, first of all those regarding its cooperation with other authorities. The further development of the rules of the parliamentary law is possible within the current acts in force, but the adoption of new ones cannot be excluded. Currently, the need for the adoption of the federal law on normative legal acts is obvious, it is aimed not on procedural, but on systemically important aspects of lawmaking, allowing to eliminate the destructive effects in legislation, preventing the passage of properly unexamined legislative initiatives, establishing common criteria of the quality of legislation, ensuring the formation of a unified and consistent system of Russian legislation, an organic compound of the process of lawmaking and law enforcement, and in general, increasing the value of the legislative function of the Parliament1. In addition to the regulatory legal acts the parliamentary traditions, customs, and precedents are occupied a special place among the legal sources of the parliamentary law. The parliamentary traditions are the rules of declaratory character, developed over many years in the world and actually Russian parliamentary practice. They include, for example, the methods of conventional, non-electronic voting: rising, raising hands, movement in opposite directions, even acclamation — outcry of one group to another, etc. Being incorporated into the rules, they take form of parliamentary precedents, i.e. binding acts. The parliamentary precedents shall be distinguished from the judgments of courts of supreme and other resorts, serve as the basis for the settlement of similar cases by other courts. In the countries of the Anglo-Saxon law system, the legal precedents are an organic part of the sources of constitutional and in the known aspect of the parliamentary law (they form, in particular, the so-called Practice of the British Parliament). In the late XIX — early XX centuries the leading American social activist Henry M. Robert was engaged in integration of the traditions, customs, and precedents to a general «code». In 1915, he finished his book «Rules of parliamentary procedure» (translated into Russian in 1992)2. This work, the US researchers called the «integration of the parliamentary laws», «model of parliamentary behavior», and its author — the «father of modern 1



2



42

Ref.: T.Y. Khabrieva, Yu.A. Tikhomirov, N.A. Vlasenko and others. The Draft of the Federal Law «On normative legal acts in the Russian Federation» (proactive draft law). Moscow, 2013; E.E Rafalyuk. Scientific discussion of the new draft law // Russian Law Journal. 2013. No. 7. 90–93 p. Ref.: H.M. Robert. Rules of parliamentary procedure. Problems of the Eastern Europe. Washington, 1992.

Chapter I. The Doctrinal Basis of the Parliamentary Law of Russia

parliamentary procedure». As Henry M. Robert wrote: «It is very important that every respectable public body acts on the basis of procedure, decency and uniformity». The peculiarity of the «Rules» of H.M. Robert is that they are fit for any «assembly», where decisions are made — whether it is the Chamber of the Parliament, the club of voters or religious community. The various procedural aspects (from the submission of the offers in their classification on the main, side and preferred to the etiquette of debate and voting procedure), the rights of assemblies, their working bodies (committees, commissions), officials (chairman, secretary, treasurer) and etc. are considered scurpulously. Many of them, being borrowed from English and American experience of the parliamentarism, present what could be called the basics of proper parliamentary culture. They contain a special procedural core of such legal structure of each constitutionally organized state, which is now called the parliamentary law. The age-old parliamentary practice produced quite a few «rules» that were not included in the regulations, but rather actively used for personal and group interests, or simply for the purpose of direct obstruction. For example, «filibustering» — a method practiced in the Senate of the USA, means the pronunciation of long and not related to the discussion speeches in order to delay the session and prevent the adoption of unwanted draft laws. Currently, the legal customs in the activities of the Russian Parliament, as in the constitutional practice in general, are not common, although they existed in the first years of the functioning of the Federal Assembly. For example, in the early years of the Council of Federation a custom of leaving of the member of the Council of Federation to the region of the Federation, represented by this member in the Chamber, such as meetings of legislative bodies, and other events has developed. Then the work of the members of the Council of Federation in the regions was included in the work plans of the Chamber equally with session meetings. In the State Duma in the process of distribution of the key positions in the Chamber (Head of the State Duma, his deputies, Chairmen of committees and their deputies) the agreement between the factions on the representation of their members in these positions have traditionally used. As for the doctrinal part, in western jurisprudence in its composition directly or indirectly the interpretation of the meaning of legal norms and categories is included. With reference to our reality, in the doctrinal- source sense can be considered the introduced by the various research centers 43

The Parliamentary Law of the Russian Federation

suggestions, that found their application in the development of legal acts dealing with the legislative function of the Parliament1. The doctrine is also important to solve the problem of the content of acts regulating parliamentary activities, to optimum construction of the system of parliamentary law, to harmonize its various parts with each other and establish their compliance with the concept of the national parliamentary system. The issue concerns not only the theory of the parliamentarism, but also the sciences and scientific trends, which consider to be related to the parliamentarian aspects of organization of state power. It is referred to the use of the these theories of state and law, history of state and law, history of political and legal doctrines, constitutional law, comparative law, etc., as well as the prevailing scientific fields such as the theory of the separation of powers, human rights, federalism, constitutional justice, lawmaking and others. For the scientific understanding of the various aspects of the Parliament’s activities the next non-legal sciences such as social philosophy, sociology, political science, social psychology, rhetoric, ethics, etc. can be involved. Built on this basis, the concept of the Russian parliamentarism takes the form corresponding to the modern level of development of human knowledge, and certainly will be established in the legal sources of parliamentary law.

1



44

Ref. e.g.: Concept of development of the Russian legislation / Editor-in-Chief L.A Okunkova, Yu. A. Tikhomirova, Yu.P. Orlovsky. Moscow, 1994; Russian law: problems and prospects / A.I. Abramova, S.A. Bogolyubov, M.I. Braginsky and others. Moscow, 1995; Legal reform: the concept of development of the Russian legislation / Editorial Board: L.A. Okounkov, Yu. A. Tikhomirov, Yu.P. Orlovsky. 2nd ed., rev. and amend. Moscow, 1995; the concept of development of Russian law / Editorial Board L.A. Okunkov, Yu.A. Tikhomirova, Yu.P. Orlovsky. 3rd ed., rev. and amend. Moscow, 1998; Concept of development of the Russian legislation / Ed.-in-Chief T.Y. Khabrieva, Yu. A. Tikho­ mirov Yu. P. Orlovsky. M., 2004; Concept of development of the Russian legislation / Ed.-in-Chief T.Y. Khabrieva, Yu.A. Tikhomirov, Yu.P. Orlovsky. Moscow, 2010; Constitution and law: on materials of the international scientific conference (Moscow, October 29, 2003) / Ed.-in-Chief T.Y. Khabrieva, Yu.A.Tikhomirov. Moscow, 2003; Globalization and the development of legislation (essays) / S.A. Bogolyubov, V.H. Vishnyakov, N.H. Doronina, etc.;Ed.-in-Chief Yu.A. Tikhomirov, A.S. Pigolkin. Moscow, 2004; Legal maintenance of national interests: materials of international scientific conference (Moscow, October 25–26, 2005) / Ed.-in-Chief T.Y. Khabrieva. Moscow, 2005; International law and national legislation: monograph / V.I. Lafitsky, O.I. Tiunov, Yu.A. Tikhomirov, etc.; Ed. board: Yu.A. Tikhomirov (Ed.-in-Chief), M.T. Baimakhanov, H.A. Vasilevich, Yu.S. Shemshuchenko. Moscow, 2009; Legal Technology: Textbook / Editor-in-Chief T.Y. Khabrieva, N.A. Vlasenko. Moscow, 2010; Tikhomirov Yu.A. Legal regulation of theory and practice. Moscow, 2010.

Сhapter II. Parliament is the Supreme Representative and Legislative Body in the Russian Federation § 1. The position and the role of the Federal Assembly in the democratic federative state system

In accordance with the Art. 11 of the Constitution of the Russian Fede­ ration, the state power in the Russian Federation is exercised by the President of the Russian Federation, the Federal Assembly (the Council of Federation and the State Duma), the Government of the Russian Federation, and the courts. In the construction of the mechanism of the modern Russian state power implementation, one of the fundamental constitutional principles is embodied. It is the principle of the separation of powers (Art. 10 of the Constitution of the Russian Federation). According to it, the legislative, executive and judicial bodies are independent, and have their own competence by performing their essential functions. Firstly, the special role of the legislative bodies is based on the procedure of formation, which requires a direct will of the citizens through their participation in the elections and makes the legislative body a direct speaker of the interests of the entire population. Secondly, these bodies have the exclusive right to make laws and thus to form the legal frameworks following which the other public state power bodies may operate. During the Soviet period, at all the levels of the state power, the legislative bodies took the supreme position. They controlled and regulated all the other state bodies. The Supreme Council of the USSR, and in the future, the Congress of the People’s Deputies of the USSR as the supreme state power body were able to take any issue referred to the jurisdiction of the state into consideration. The Supreme Councils of the republics had the relevant authorities. The principle of the separation of powers, which was proclaimed by the Constitution of the Russian Federation, does not provide the superiority of one state body over the other. The representative, executive and judicial bodies due to the action of «checks and balances» are to counterbalance each other. The Federal Assembly — the Parliament of the Russian Federation — is a representative and legislative body of the Russian Federation (Art. 94 of 45

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the Constitution of the Russian Federation). This definition, reveals the main purpose of the Federal Assembly in the system of the state bodies — to act as a representative of the whole multinational people of Russia and perform the legislative functions. The representative role of the Parliament has the dual nature due to the federative structure of the state, which is reflected in its bicameral (two-chamber) structure (Art. 95 of the Constitution of the Russian Federation). One of the chambers — the Council of Federation — performs the presentation of the regions of the Russian Federation, the other — the State Duma — acts as the representative institution of citizens of the Russian Federation. The Federal Assembly is a permanent body (Art. 99 of the Constitution of the Russian Federation), which is entitled to assemble and take decisions on the matters of its jurisdiction during the entire period of the convocation or activities. The constancy of the Parliament’s activities is also guaranteed by the strict regulation of the formation period of the State Duma (including the case of early termination of its powers), by the absence (except in the case of dissolution) of the period between terms of powers of the State Duma of the previous and the new convocations (outgoing and new legislatures), by the renewal of the membership of the Council of Federation by its members rotation, as well as by the impossibility of the Council of Federation dissolution. The constitutional and legal status of the Federal Assembly is a set of legal Regulations defining the legal status of the Parliament in the system of state bodies. Such legal Regulations are listed in the Constitution of the Russian Federation, the federal constitutional laws, the federal laws, the regulations of the chambers and other legal acts. A peculiarity of the legal status of the Federal Assembly is the regulation of certain aspects of its activities by the unwritten Regulations in the form of parliamentary traditions and customs. The constitutional and legal status of the Parliament includes a set of legal Regulations that stipulate the objectives and principles of the Parliament’s activities, by means of which the main purpose of the Parliament is detected; define its main functions and reveal its jurisdiction (the major component of the Parliament’s status); regulate the procedure of the Parliament’s formation, as well as its internal organization; determine the procedural issues of the Parliament’s activities — the meetings procedure of the Chambers and their bodies, the decision-making procedure, the legislative procedures, etc. The set of legal Regulations that define the legal status of the parliamentarians, their rights, obligations, responsibilities and main guarantees of the activities is of a particular importance. 46

Сhapter II. Parliament is the Supreme Representative and Legislative Body

§ 2. The functions and the competence of the Federal Assembly

The functions of the Federal Assembly are the main directions of its activities. The Parliament’s functions are revealed by the implementation of the powers. We note that in the literature on the Parliament’s activities, there is some typical mixture of the concepts of «the Parliament’s functions», «the Parliament’s (Chambers’ of the Parliament) competence, «powers»1. Meanwhile, mostly right is to use a combination «the Parliament’s functions» in relation to the Federal Assembly as a whole; on the both Chambers of the Russian Parliament these functions are equally projected. At the same time by the competence (powers) of each of the Chambers and the Federal Assembly as the whole, the functions of the Parliament are refracted. The functions carried out by the Parliament are diverse: the representation of the people, legislature, the participation in the supreme leadership of the country’s affairs, the formation of the state machinery, the parliamentary control, the assistance and methodical association for all representative public state power bodies in the state2. Also, the identification of the organizational functions of the Parliament is occurred3. The domestic and foreign policy functions (depending on the orientation of the Parliament’s activities inside and outside the state), permanent and temporary (for example, the activities on the establishment and operation of the Conciliation Commissions for the developing of the coordinated decisions on the separate draft laws) are distinguished. Meanwhile, by the traditional approach, the triad of the parliamentary functions — representative, legislative and control — is identified. The representative function of the Federal Assembly assumes that the Parliament acts as the spokesman for the interests and will of the multinational people of Russia. The national representation is provided through the arrangement of the periodic free elections, where every legally capable citizen of Russia is entitled to express his will by voting for the tolerable candidacies. The State Duma is formed in the course of the direct elections arrangement. Along with the national representation, the Parliament acts as the spokesman for 1



2



3



The constitutional law of Russia: textbook / Editor-in-Chief A.N. Kokotov and M.I. Kukushkin Moscow, 2004, 349-350 p.; O.N. Bulakov The functions of the Parliament’s Chambers (theory and practice) // The representative power. XXI century: legislation, comments, problems. 2003. No. 6. 2–3 p. Ref.: S.A. Avakyan. The Federal Assembly: the prospects for the organization and operation improving // Bulletin of the Moscow University. Series 11. Law. 2002. No. 2. 5–6 p. Ref.: O.N. Bulakov. Op.cit. 4 p. 47

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the interests of the population of the separate parts of the state — the regions of the Russian Federation, the representation of which is provided in the Council of Federation. The procedure for the Council of Federation formation is more complicated, but does not its representative character, as the members of the Council of Federation are empowered by the legislative (representative) body of the region of the Russian Federation, which is formed by the voters, or by the head of region of the Russian Federation, who, in turn, is directly elected by the population of a region of the Federation. In addition, the citizens may elect the candidates to the members of the Council of Federation and the candidates to the Deputy of the State Duma, to the regional parliaments and to the representative bodies of the municipal entities. The consideration of the interests of the regions of the Federation in the Parliament is ensured not only by their representation in the Chamber, but also by the presence of the procedural aspects, requiring the active participation of the regions of the Russian Federation, their legislative (representative) bodies. The most important feature of the Parliament’s representation is a periodic rotation of its membership. The rotation of the parliamentarians provides the confirmation of the deputy’s mandate and serves as a peculiar measure of the quality and effectiveness of the parliamentarians’ activities. The Parliament is a collegial body. The collegiality means that the identification and coordination of the interests and will of the various social and political forces are carried out in the Parliament. In the nature of the acts adopted by the Parliament, the collegiality is also reflected. The collegial decisions of the legislators reflect the overall, agreed position of the parliamentarians; they are based on the public will, the general public interests. Nowadays, the social representation of the Parliament has almost lost its meaning, a necessary attribute of which was the presence of the representatives from different groups of the population in the Parliament. Another parliamentary aim is focused at the professionalism of the parliamentarians (Art. 97 of the Constitution of the Russian Federation). Nevertheless, the social factor is still taken into account, in the formation of the deputy corps on the principle of the party membership because as a rule the certain groups of the population, which constitute the electorate of the political parties, support their activities. The representative role of the Parliament is not only in the manner of its formation, but also in the nature of the activities. This is expressed in the fact that the deputy has to communicate with his voters, take measures to ensure their rights, freedoms and legitimate interests, arrange the reception of the citizens and inform the voters on his activities. 48

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The Constitution of the Russian Federation does not provide any direct mechanisms of the citizens’ influence on the activities of the federal parliament. The democratic nature of the parliamentary law is incompatible with the presence of the imperative mandate of the deputy, when the deputy has to unconditionally express the will of his voters, being responsible for them and in case of failure to perform the mandate of the voters, he may be dismissed. The constitutional legislation based on the principle, that the deputy is free to express his will and position in the voting. This is because the deputy is not the representative of only that part of the electorate that elected him; he becomes the spokesman for the entire population. The democratic procedure of the Parliament’s formation and the representation of the different parties form a kind of «system balance», which allows to discuss different opinions and form a common position on the topical issues of the political, economic, and social nature, reflecting the public interests. This position lays as the basis of the legislative acts, adopted by the Parliament, contributing to the formation of the unanimous legal and economic space and the construction of the democratic constitutional state. The legislative function of the Federal Assembly. The primary function of the Federal Assembly is the most voluminous in its content and the most important in its significance. According to the Constitution of the Russian Federation, only the Federal Assembly is empowered to adopt the federal laws, having the supremacy and direct effect throughout the territory of the Russian Federation. This underlines the importance of the Parliament — the ability to form the legal system of the state by the adoption of the laws, to influence the main processes occurring in the various spheres of the public life. The independence of the Federal Assembly is the most important guarantee for the successful implementation of the legislative function. In its legislative activities, the Federal Assembly is limited only by the requirements of the Constitution of the Russian Federation. For this reason, the Parliament has the right to adopt or defeat any law (within the jurisdiction of the Russian Federation and the objects of the joint jurisdiction of the Russian Federation and its regions) without anyone’s intervention; no one has the right to control the legislative activities of the Parliament. Therein its validity as the legislative body lies. At the same time, the parliamentary independence is not absolute. The other branches of the power have the unique «leverages» for the legislative bodies, being the necessary element of the powers balancing. For example, as how the provided by the Constitution of the Russian Federation right of veto of the President of the Russian Federation acts — the right to defeat the federal law adopted by the State Duma and approved by the Council of Federation. 49

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In addition, the Constitution of the Russian Federation reserves the exclusive right of the Government of the Russian Federation to develop the most important financial law of the state — the law on the federal budget (Cl. «a», P. 1, Art. 114). At the same time, the Constitution of the Russian Federation provides the presentation of the mandatory conclusion by the Government of the Russian Federation on the draft laws, which affect the budgetary matters (P. 3, Art. 104), and thus, the legislator in solving the most important financial matters cannot ignore the executive power. According to the Constitution, the Constitutional Court of the Russian Federation can proclaim the federal laws and their separate provisions as unconstitutional, which means their invalidity. However, this power is reserved for the Constitutional Court only in respect to the adopted federal law and the Court cannot intervene into the legislative process, carried out by the Federal Assembly. Thus, the legislative function of the Parliament is not unlimited, and, while implementing it the Parliament is functioning in the certain constitutional system, which requires the cooperation and coordination of all branches of the state power in the legislation1. The control function of the Federal Assembly lies in the fact that the Parliament controls the executive power’s activities. The need for the implementation of the parliamentary control is caused not only by the fact that such control is an element of the system of checks and balances in the machinery of powers, but also by the fact that due to the implementation of this Parliament’s function, the people as the bearer of sovereignty and the only source of power can control the activities, conferred to the governmental authorities of the power bodies. The people’s representatives — the Deputies, carry out the control indirectly. The control function of the Parliament consists in its use of the special measures — the measures of the parliamentary control. The experience has proven that many of the forms of the parliamentary control were not sufficiently efficient in use, so the consolidation in 2008 of the constitutional power of the State Duma on the hearing of the annual reports of the Government of the Russian Federation on the results of its activities, including on the issues raised by the State Duma, as well as the adoption of the Federal Act of May 7, 2013 No. 77-FZ «On the Parliamentary Control» should become a new tool in the mechanism of ensuring the effectiveness of the parliamentary control. The competence of the Federal Assembly is one of the most important elements of the constitutional and legal status of the Federal Assembly. It represents a set of powers, through which the main functions of Parliament 1



50

Ref. to Ch. V.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

are implemented. It is established by the Constitution of the Russian Federation on the basis of the main purpose of the Federal Assembly as a representative and legislative body. The Basic Law of the Russian Federation establishes the principle of independence of the Chambers and the strict separation of their competence, i.e. each Chamber is competent to decide the issues only of its reference. Powers of the Federal Assembly can be divided into two categories: which are implemented only by one of the Chambers and by the both Chambers. The second includes the powers on the implementation of the legislative function of the Parliament, on the decision of the issues on the resignation of the President of the Russian Federation from the office, on the formation of the Accounts Chamber and others. In addition, it is possible to allocate those powers of the Chambers of the Federal Assembly, which are effected by them equally, independently of each other, including the right to appeal to the Constitutional Court of the Russian Federation, participation in the consultations in the appointment and reappoint of diplomatic representatives in the foreign states and international organizations, etc. The competence of the Council of Federation is enshrined in Art. 102 of the Constitution of the Russian Federation. The jurisdiction of the Council of Federation includes the following issues: 1) the approval of the boundaries changes between the subjects of the Russian Federation. According to Art. 67 of the Constitution of the Russian Federation the boundaries between the regions of the Federation may be changed upon their mutual consent. In the framework of this authority, the Council of Federation is obliged to confirm that the presented change of the boundaries does not violate the interests of the other regions of the Russian Federation and the Russian Federation itself. To solve the issue of the boundaries change between the regions of the Federation, the agreement on the boundaries change approved by the legislative (representative) bodies, justification for the boundaries change, agreed by the regions and terrain map shall be submitted to the Council of Federation. The Committee of the Council of Federation on the Federal Structure, Regional Policy, Local Self-Government and Northern Affairs previously discusses this issue, gives its opinion and then it is decided at the meeting of the Chamber, under the results of which a resolution of the Council of Federation is adopted. The decision of the Council of Federation is forwarded for execution to the legislative (representative) and executive state bodies of the relevant regions of the Federation, as well as to the federal public state power bodies. The Council of Federation carried out the resolution under having approved the change of boundaries between the Ivanovo and Nizhny 51

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Novgorod Regions (1994), Kostroma and Vologda Regions (1994), between the Jewish Autonomous Region and the Amur Region (2007), between Moscow and the Moscow Region (2011). The increased usage of this power of the Council of Federation will be more effective with the adoption of the federal law on the boundaries between the regions of the Russian Federation and the procedure of their changing, which is necessary for the following reasons: the boundaries of the separate regions of the Federation have not been established in a proper manner; it is appropriate to provide the procedures for the situations resolution, where the regions of the Russian Federation cannot reach an agreement themselves, and the boundaries change is due to the federal interests; the Federal Constitutional Law of December 17, 2001 No. 6-FKZ «On the Procedure of Acceptance to the Russian Federation and Formation in it a New Region of the Russian Federation» does not deal with the issues of the new region boundaries adoption. The powers of the Council of Federation also include approval of the boundaries change of the boundaries of the cities of federal significance — Moscow and St. Petersburg, if it does not entail the boundaries change of the Moscow Region and the Leningrad Region. This power is implemented in accordance with the requirements of the Land Code of the Russian Federation (Art. 84) on the establishment and change of the boundaries of the settlements. In 2009, the Council of Federation approved the boundaries change of the city of federal significance — St. Petersburg; 2) the approval of the decree of the President of the Russian Federation on the imposing the martial law and state of emergency. In accordance with the Constitution of the Russian Federation (Art. 87, 88) in the case of aggression in respect to the Russian Federation or the imminent threat of the aggression, the President of the Russian Federation imposes the martial law in the territory of the Russian Federation or in the regions thereof; in the circumstances and in the manner provided by the federal constitutional law, imposes the case of emergency in the territory of the Russian Federation or in the regions thereof. In the terms of special legal regimes — the martial law and the case of emergency — the Constitution of the Russian Federation stipulates the limitation of rights and freedoms of the citizens, so the imposition of these regimes requires the maintenance of special procedure on the decision taking. Firstly, the adoption of the relevant decree by the President requires its immediate notification to the Council of Federation and the State Duma. In addition, the Council of Federation shall approve this President’s decree. The text of the relevant decree for the report preparation is submitted to the Committee of the Council of Federation on Defense and Security and the Committee of the Council of Federation on the Federal Structure, Regional Policy, Local Self Government and Northern Affairs. 52

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The decree on the imposing the martial law, submitted by the President, should specify: the circumstances justifying the imposition of the martial law; time and date, on which the martial law becomes effective; territory boundaries, where the martial law is imposed (Art. 4 of the Federal Constitutional Law of January 30, 2002 No. 1-FKZ «On Marital Law»). The decree of the President on the imposing the case of emergency should specify: justifications for the case of emergency imposition; the boundaries of the territory; forces and means for the case of emergency regime; the list of the emergency measures and limitations of their validity; the exhaustive list of the temporary restrictions of the rights and freedoms of the citizens of the Russian Federation, foreign citizens and stateless persons, the rights of the organizations and public associations; the state bodies (officers) responsible for the implementation of the measures applied during the case of emergency; the term of validity of the case of emergency (Art. 5 of the Federal Constitutional Law of May 30, 2001 No. 3-FKZ «On the State of Emergency»). According to the Federal Constitutional Law «On Martial Law» (Art. 4) the issue on adoption of the decree of the President of the Russian Federation on the imposing the martial law shall be heard by the Council of Federation within 48 hours of the decree receipt. If due to emergency and the cases unavoidable under the given conditions, the meeting of the Council of Federation cannot be arranged at the scheduled time, the Chairman of the Council of Federation after consultations with the Council of the Chamber may set another period of the meeting of the Council of Federation. The issue on the approval the Presidential Decree on the case of emergency imposition should be heard by the Council of Federation within a period not exceeding 72 hours from the moment of the promulgation of the Presidential Decree (Art. 7 of the Federal Constitutional Law «On the State of Emergency»). The hearings on the adoption of the Presidential Decree on the imposition the martial law or case of emergency at the Council of Federation meeting, begins with the report of the President of the Russian Federation or the Plenipotentiary of the President in the Council of Federation. Thereafter, the conclusions of the relevant committees of the Council of Federation are announced. The decision on the Presidential Decree adoption on the imposition the martial law or case of emergency is adopted by a majority of votes of the total number of the members of the Council of Federation and issued by the decree of the Council of Federation. If the required number of votes of the members of the Council of Federation is not secured, the Presidential Decree is not adopted. 53

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In this case, the Presidential Decree and a special regime, imposed by him, cease to have effect (from the day following the date of the decision adoption — for the martial law, within 72 hours after the announcement — for the case of emergency). The relevant decisions of the Council of Federation are drawn by the resolutions and immediately sent to the President of the Russian Federation, and in the case of the decree discussion on the case of emergency imposition — also to the federal body in charge of foreign affairs; 3) the decision of the issue on the possibility of using the Armed Forces of the Russian Federation outside the territory of the Russian Federation. The use of the Armed Forces of the Russian Federation beyond its borders is due to maintaining or restoring of international peace and security, with the participation of the Russian Federation in the implementation of the measures taken by the UN Security Council in accordance with the UN Charter, with the implementation of international obligations of the Russian Federation for elimination of the threat to the peace, breach of the peace or an act of aggression. All these cases related to ensuring the national interests of Russia, so the parliamentary control shall determine the feasibility of the use of the Armed Forces of the Russian Federation abroad. Hearing this issue, the Council of Federation also controls the compliance with the Regulations of the international agreements of the Russian Federation, which have been ratified by the Parliament. The issue on the use of the Armed Forces of the Russian Federation outside the territory of the Russian Federation is heard by the Council of Federation on the proposal of the President of the Russian Federation. According to the Federal Law of June 23, 1995 No. 93-FZ «On the procedure of the provision of the military and civilian personnel to participate in the activities on the maintaining or restoring of international peace and security» (Art. 7, 10), the proposals made by the President of the Russian Federation to the Council of Federation should include information on the area of​​ operation of these military units, their tasks, total number, type and staff of weapons, subordination, duration of stay, or the procedure of its extension, procedure of replacements and conditions of withdrawal, as well as the additional guarantees and compensations to the officers of the specified military formations and their families, established in accordance with the federal laws. The Council of Federation shall discuss the possibility of using the Armed Forces of the Russian Federation outside the territory of the Russian Federation at the next meeting of the Chamber after the receipt of the appeal of the President of the Russian Federation to the Council of Federation. If the issue on the possibility of using the Armed Forces of the Russian Federation outside the territory of the Russian Federation needs an urgent decision, the Council of Federation may hear this issue at an extraordinary meeting of the Chamber. 54

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The decision of the Council of Federation, issued by the decree, within two days is to be submitted to the President of the Russian Federation for execution. The Council of Federation has adopted a number of decisions on the use of the Armed Forces of the Russian Federation outside the territory of the Russian Federation, in particular: in 2000, in the operation of the UN on the peacekeeping in the Republic of Sierra Leone, in the peacekeeping operation of the multinational forces on the stabilization in the framework of implementation of the General Framework Agreement for Peace in Bosnia and Herzegovina; in 2001 — as part of the collective forces on the peacekeeping in the Georgian-Abkhazian conflict; in 2005 — in the operation of the UN on the peacekeeping in the Republic of Sudan; in 2008 — for the peace and security keeping in the area of the Georgian-Ossetian conflict and the area of the Georgian-Abkhazian conflict; in 2015–2016 in the operation in Syria on using the Air Forces for bombing the Islamic State, and others. In 2009 as amended by the Federal Law of May 31, 1996 No. 61-FZ «On defense», the President of the Russian Federation on the basis of the decision of the Council of Federation is entitled to the operational usage of the Armed Forces troops of the Russian Federation outside the territory of the Russian Federation, if it is necessary for the following tasks solving: 1) the repulsion of an armed attack on the Armed Forces formations of the Russian Federation, other troops or bodies deployed outside the territory of the Russian Federation; 2) the repulsion or prevention of an armed attack on the another state, appealed to the Russian Federation with the relevant request; 3) the protection of the citizens of the Russian Federation outside the territory of the Russian Federation from an armed attack on them; 4) the fight against piracy and for the security of navigation. By the decree of December 16, 2009 No. 456-SF, the Council of Federation, based on the need to protect the interests of the Russian Federation and its citizens, to maintain the international peace and security, taking into account the generally recognized principles and norms of the international law, international agreements of the Russian Federation, and guided by Art. 61, 80, 87 and Cl. «г» P. 1, Art. 102 of the Constitution of the Russian Federation, the provisions of the Federal law «On defense», provided the President of the Russian Federation with the opportunity to make his own decisions in the above mentioned spheres; 4) the appointment of the elections of the President of the Russian Federation. The basis for this hearings issue at the Council of Federation is the expiration of the term of office of the President of the Russian Federation or the early termination of his powers in accordance with P. 2 Art. 92 of the Constitution of the Russian Federation. 55

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In accordance with the Federal Law of January 10, 2003 No. 19-FZ «On the elections of the President of the Russian Federation» (Art. 5), the decision to appoint the elections shall be taken no earlier than 100 days and not later than 90 days before the voting day. The polling day in the elections is the second Sunday of the month in which the voting took place during the previous elections of the President of the Russian Federation. In the event of the President of the Russian Federation office termination prior to the expiration of the constitutional term in cases and order stipulated by the Constitution of the Russian Federation, the Council of Federation schedules the early elections of the President no later than 14 days from the date of termination of the office. The polling day in this case will be on the last Sunday before the day of the expiration of three months from the date of termination of the office of the President of the Russian Federation. This took place in 2000, when because of the resignation of the President of the Russian Federation B.N. Yeltsyn on December 31, 1999 the early presidential elections were scheduled on March 26, 2000. The Council of Federation adopted a resolution on the schedule of elections of the President of the Russian Federation by a majority of votes of all its members; 5) the impeachment of the President of the Russian Federation. The Council of Federation has the right to resign the President of the Russian Federation of office only on the basis of the accusation of high treason put forward by the State Duma or other serious crime, confirmed by the conclusion of the Supreme Court due to the features of crime committed by the President of the Russian Federation and the conclusion of the Constitutional court of the Russian Federation on the compliance with the established procedures for accusing. The procedure for the President resignation of office consists of several stages. The decree of the State Duma on the resignation in respect to the President, received by the Council of the Federation, the conclusion of a special commission of the State Duma on the validity of the accusation and the transcript of the meeting of the State Duma, where the issue of the suspension was discussed, the conclusion of the Supreme Court of the Russian Federation on the presence of the elements of a crime in the actions of the President are to be sent by the Chairman of the Council of Federation to the Committee of the Council of Federation on the Constitutional Legislation, Judicial and Legal Affairs, Development of the Civil Society for the decision taken by the Chamber on the submission of the relevant request to the Constitutional court of the Russian Federation. The issue on the resignation of the President of the Russian Federation of office without discussion and voting is to be inlisted into the agenda of the meeting of the Council of Federation, convened by the Chairman of 56

Сhapter II. Parliament is the Supreme Representative and Legislative Body

the Council of Federation in a period not exceeding 72 hours from the receipt of the conclusion of the Constitutional Court of the Russian Federation on the compliance with the established procedures for accusing the President of the Russian Federation in the high treason or other felony. The President of the Russian Federation, the Chairman of the State Duma, the Chairman of the Government of the Russian Federation, the members of the special committee of the State Duma for assessing the reasonableness of accusation, the Chairman of the Constitutional Court of the Russian Federation and the Chairman of the Supreme Court are invited to the meeting. Discussion of the issue of resignation of the office begins with a presentation of the Chairman of the State Duma on the grounds for making an accusation in respect of the President. A right to speak is given to the Chairman of the Constitutional Court for the announcement of the conclusion on compliance with the established procedures for accusing and to the Chairman of the Supreme Court for the announcement of the conclusion concerning the evidence of the crime committed by the President of the Russian Federation. After that the conclusion of the Committee of the Council of Federation on the Constitutional Legislation and State Building is heard. The President of Russia or his representative may be given a right to speak at their request. A decision to resign the President of the Russian Federation is adopted by the secret voting, through ballots. The decision is considered to be adopted if at least two thirds of the members of the Council of Federation voted for this. If the decision is not confirmed by the necessary number of votes, then the hearings on the issue of the resignation of the President of the Russian Federation of office are terminated, which also is legalized by the decree. The Resolution of the Council of Federation shall be promptly notified to the public. According to P. 3 Art. 93 of the Constitution of the Russian Federation, the decision of the Council of Federation to resign the President of office shall be taken not later than three months after the accusation by the State Duma in respect of the President. If the decision is not accepted within this period, the accusation shall be considered as rejected; 6) the appointment of the judge of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation. Personnel powers of the Council of Federation, as well as the powers for the elections of the President of the Russian Federation and his resignation of office, arise from the mechanism of checks and balances, operating under the principle of the separation of powers. The President of the Russian Federation presents candidates for the appointment to these offices. The Council of Federation considers the ju57

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dicial appointment not later than 30 days from receipt of the presentation of the President, and judicial appointment of the judges of the Constitutional Court of the Russian Federation, the Chairman of the Supreme Court or the Deputy Chairman of the Supreme Court — not later than 14 days. The candidates presented by the President for the judicial appointment are previously heard by the Committee of the Council of Federation on Constitutional Legislation and State Building, which prepares a report about each candidate. After a discussion at the meeting of the Council of Federation, every candidate is included in the ballot for secret voting, or by decision of the Council of Federation, the voting can be held by using the electronic system. The decision is taken by the majority of votes of the members of the Council of Federation. The judicial appointment to the Constitutional Court and the Supreme Court is issued by the decision of the Council of Federation, a copy of which is handed over by the Chairman of the Council of Federation to each person appointed as a judge. The same procedure is for the appointment the Chairman and Deputy Chairman of the Constitutional Court of the Russian Federation, the Chairman and Deputy Chairman of the Supreme Court of the Russian Federation, the members of the Presidium of the Supreme Court of the Russian Federation to office. According to Art. 10 of the Federal Constitutional Law of July 21, 1994 No. 1-FKZ «On the Constitutional Court of the Russian Federation», a person appointed to the office of judge of the Constitutional Court of the Russian Federation, in comparison with the other judges appointed by the Chamber, is put under the oath by the Chairman of the Council of Federation. The candidacy, who did not receive the required number of votes, is considered to be rejected. In the case when the Council of Federation disposes the candidacies presented by the President of the Russian Federation, the Council of Federation may propose the President to hold the consultations to overcome the existing differences. To hold the consultations, the Council of Federation forms a special group from among its members or asks the Chairman of the Council of Federation to hold the consultations. By the Regulation of the Economic Court of the Commonwealth of Independent States (p. 7) approved by the Agreement on the Status of the Economic Court of the Commonwealth of Independent States on July 6, 1992, the considered powers of the Council of Federation on the appointment of judges of the supreme judiciary are expanded. The candidacies presented by the President of the Russian Federation for the appointment 58

Сhapter II. Parliament is the Supreme Representative and Legislative Body

of judges of the Economic Court of the Commonwealth of Independent States, are previously heard In the Committee of the Council of Federation on International Affairs; 7) the appointment the Prosecutor General of the Russian Federation and Deputy Prosecutor General of the Russian Federation to office and their dismissal from office. According to the Constitution of the Russian Federation (Cl. «е» Art. 83) the President of the Russian Federation presents the candidacy to the office of the Prosecutor General of the Russian Federation and Deputy Prosecutor General of the Russian Federation to the Council of Federation. The Council of Federation considers the issue on the appointment to the office of the Prosecutor General within 30 days of the presentation receipt. The candidacy is preliminary heard in the Committee of the Council of Federation on the Constitutional Legislation and State Building and in the Committee of the Council of Federation on Defense and Security. The issue on the appointment the Prosecutor General to the office is settled by the secret voting by a majority of votes of all members of the Council of Federation. If the candidacy presented by the President of the Russian Federation for the appointment to the office of the Prosecutor General of the Russian Federation, does not receive the required number of votes during the voting, the President within 30 days shall present a new candidacy. After the announcement of the voting results the Chairman of the Council of Federation, in accordance with the Federal Law of January 17, 1995 No. 2201-I «On the Prosecutor’s Office of the Russian Federation» (Art. 12), puts a person appointed to the office of the Prosecutor General under the oath. The President of the Russian Federation proposes the issue on the dismissal from the office of the Prosecutor General. The Prosecutor General shall be considered dismissed from the office if under the results of the secret voting for his dismissal the majority of the total number of members of the Council of Federation voted. The appointment of the Prosecutor General to the office and his dismissal from the office is issued by the decree of the Council of Federation. If the Council of Federation rejected the candidacy of the Prosecutor General for the office or the President’s proposal for the dismissal the Prosecutor General from office, then it may adopt the resolution with proposal to the President to hold the consultations in order to overcome the existing differences. In accordance with the Constitution of the Russian Federation, the power to issue the act of dismissal the Prosecutor General of the Russian Federation from the office during the investigation of the instituted criminal proceedings against him is not within the jurisdiction of the Council of 59

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Federation. As decided by the Constitutional Court of the Russian Federation on the basis of the Constitution of the Russian Federation and in the absence of another legislative regulation, the President of the Russian Federation is obliged to issue the act on the temporary suspension of the Prosecutor General of the Russian Federation, the need for which is due to excitation of criminal case against him1. According to the Federal Law «On the Prosecutor’s Office of the Russian Federation» (Cl. 2, Art. 14), the jurisdiction of the Council of Federation also includes appointment the First Deputy and Deputy Prosecutor General to the offices and dismissal them from the offices on presentation of the latter. The procedures are carried out in the same manner as the appointment the Prosecutor General of the Russian Federation to the office and his dismissal from the office; 8) the appointment the Deputy Chairman of the Accounts Chamber of the Russian Federation and half of its auditors2 to the office and their dismissal from the office. Both Chambers of the Federal Assembly form the Accounts Chamber on an equal basis. It should be noted that originally with this power of the Council of Federation and the similar power of the State Duma were not provided any other state bodies in their implementation, as opposed to, for example, the appointment of judges of the supreme judiciary, the Chairman of the Bank of Russia. However, in accordance with the amendments to the Federal law of January 11, 1995 No. 4-FZ «On the Accounts Chamber of the Russian Federation», as amended in 2004, the candidacies for the offices of the President of the Accounts Chamber, his Deputy, and the auditors were presented by the President of the Russian Federation. The Federal Law of April 5, 2013 No. 41-FZ «On the Accounts Chamber of the Russian Federation» states that these candidacies are entered by the President of the Russian Federation by the presentation at the Parliament’s Chambers.3 The Council of the Chamber fulfills this function on 1



2



3



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1Ref.: The Judgement of the Constitutional Court of the Russian Federation of December 1, 1999 No. 17-P «On jurisdictional disputes between the Council of Federation and the President of the Russian Federation concerning the ownership of the power to issue the act on the temporary suspension of the Prosecutor General of the Russian Federation in connection with the institution against him a criminal case»// Collection of laws of the Russian Federation. 1999. No. 51. 6364 p. According to the Federal Law «On the Accounts Chamber of the Russian Federation», the Council of Federation and the State Duma shall appoint six auditors. In his message to the Federal Assembly in December 2012, the President proposed to grant the right to nominate candidacies to the «ruling party» and «parliamentary opposition», thus limiting their tenure of office by to two terms in a row. In Russia, the concepts of «ruling party» and «parliamentary opposition» does not have an official definition.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

behalf of the Council of Federation. Moreover, the President of the Russian Federation is proposed to present at least three candidacies for the office of the Deputy Chairman of the Accounts Chamber. The President of the Russian Federation selects one of the candidacies and presents it to the Council of Federation. If the President of the Russian Federation does not approve any of the presented candidates, he may nominate another candidacy and present it to the Council of Federation for appointment to the office of the Deputy Chairman of the Accounts Chamber, the auditor of the Accounts Chamber. The inclusion of the President of the Russian Federation in the process of formation of the Accounts Chamber, despite the fact that it is expressed in the form of a federal law adopted by the both Chambers of the Federal Assembly, is not indisputable in terms of the real reflection of the will of the constitutional legislator1. Candidatures are entered by the Committees of the Council of Federation to the Committee of the Council of Federation on Budget and Financial Markets, which gives a conclusion on each candidacy, generates a list of candidacies and submits it to the meeting of the Council of the Chamber. The issue of the appointment to the office of the Deputy Chairman of the Accounts Chamber of the Russian Federation at a meeting of the Council of Federation begins with the submission of the candidacy and the speech of the President of the Russian Federation (his authorized representative in the Council of Federation). Then conclusion of the Committee of the Council of Federation on Budget and Financial Markets is announced.

1



However, the terminology itself typical for the parliamentary regimes, allows to assume that it is about the party that has an overwhelming majority in the Parliament and forming a government of its representatives. More complicated is the case with the institution of the parliamentary opposition: its legal status and possible organizational forms in the Russian Federation are not defined, and the fact of the ruling party opposing, even for the implementation of the proposed by the President procedure of the presentation of candidacies for the appointment to the Accounts Chamber, requires at least its formal designation. «The constitutionality of this procedure of the appointment of the Chairman, Deputy Chairman and the auditors of the Accounts Chamber of the Russian Federation is very doubtful. The problem, however, should be put much broader- on the constitutionality of the legal nature of the Accounts Chamber itself: whether it is a body of the Russian Federation, as follows from the name of the Federal law «On the Accounts Chamber of the Russian Federation», or it acts as a body of the Federal Assembly of the Russian Federation that in much extent meets the meaning of P. 5, Art. 101 of the Constitution, which as a matter of federal law appointed only «the staff and procedure of the activities» of the Accounts Chamber of the Russian Federation» (B.S. Ebzeev Comment to the Article 103 of the Constitution of the Russian Federation // Comment to the Constitution of the Russian Federation (CbC). 2nd ed. revision / Ed.-in-Chief V.D. Zorkin. Moscow, 2011). 61

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The secret voting shall be held for every candidacy provided for the appointment to the office of the Deputy Chairman or the Auditor of the Accounts Chamber of the Russian Federation. The candidate who received the majority of votes of the members of the Council of Federation is considered to be appointed to the office. The decision of the Council of Federation is issued by the Resolution. If the candidacies presented by the President of the Russian Federation for the appointment to the office of the Deputy Chairman of the Accounts Chamber of the Russian Federation and the Auditor of the Accounts Chamber of the Russian Federation, do not get the required number of votes of the members of the Council of Federation during the voting, the Council of the Chamber shall submit the new candidacies for the appointment to the office of the Deputy Chairman of the Accounts Chamber and the Auditor of the Accounts Chamber to the President. The issue on the dismissal from the office of the Deputy Chairman of the Accounts Chamber of the Russian Federation and the Auditor of the Accounts Chamber is considered by the Council of Federation on the proposal of the President of the Russian Federation. The Committee of the Council of Federation on the Budget and Financial Markets preliminary discusses the proposal of the President and prepares the appropriate conclusion. The issue of the immunity withdrawal of the Deputy Chairman and the Auditors of the Accounts Chamber appointed to the office by the Council of Federation is decided on the proposal of the Prosecutor General. The Committee of the Council of Federation on the Budget and Financial Markets, together with the Committee of the Council of Federation on the Constitutional Legislation, Judicial and Legal Affairs and Development of the Civil Society, in a week from the date of receipt of the proposal of the Prosecutor General of the Russian Federation shall consider it, prepare conclusions in its respect and a draft resolution of the Council of Federation. If necessary, the additional materials may be requested from the Prosecutor General of the Russian Federation. In addition to the powers established by Art. 102 of the Constitution of the Russian Federation, the jurisdiction of the Council of Federation also includes the following issues: 1) the appointment to the office and dismissal from the office of the members of the Central Election Commission of the Russian Federation. In accordance with the Federal Law of June 12, 2002 No. 67-FZ «On basic guarantees of electoral rights and the right to participate in a referendum of the citizens of the Russian Federation» (Art. 21), the Council of Federation appoints to the office five members of the Central Election Commission of the Russian Federation from the candidacies proposed by the legislative (representative) public state power bodies of the regions of the Russian Federation 62

Сhapter II. Parliament is the Supreme Representative and Legislative Body

and the senior officials of the regions of the Russian Federation (the Heads of the supreme executive public state power bodies of the regions of the Russian Federation)1. Among the candidates proposed for the appointment as the members of the Central Electoral Commission, the Committee of the Council of Federation on the Federal Structure, Regional Policy, Local Self-Government and Northern Affairs in the manner prescribed by the Chamber forms a list of candidates by the groups of the regions of the Russian Federation. The Chairman of this Committee of the Council of Federation brings to the attention of the Chamber the conclusions of the Committee on the proposed candidates. On the candidates proposed for the appointment to the offices of the members of the Central Election Commission of the Russian Federation, the secret voting shall be held. If at least in one of the lists of candidates, formed by the groups of the regions of the Russian Federation, more than one candidate are presented, the voting shall be held in two phases. During the first stage, the secret voting on prioritization of the candidates’ exclusion from the lists, formed by the groups of the regions of the Russian Federation, and their inclusion to the lists (ballots) for a secret voting is carried out. The voting of the second stage is carried out in one round or in several rounds and is considered to be complete when: –– all five members of the Central Election Commission of the Russian Federation are appointed; –– a voting on all proposed candidacies is held. The candidacies from each group of the regions of the Russian Federation, according to which a member of the Russian Central Election Commission of the Russian Federation has not been appointed, are put in the lists (ballots) for the secret voting in each of the next rounds. If under the results of all votes arranged, one member or several members of the Central Election Commission of the Russian Federation are not appointed, the appointment procedure is repeated starting with the proposals of the candidacies. A person who has received the qualified majority of votes during the voting of the members of the Council of Federation, is considered to be appointed to the office of the member of the Central Election Commission is considered 1



The Central Election Commission of the Russian Federation consists of 15 members, 5 of whom are appointed by the State Duma, 5 — by the Council of Federation and 5 — by the President of the Russian Federation. 63

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The issue on the dismissal from the office of a member of the Central Election Commission, appointed to the office by the Council of Federation, is considered by the latest in the cases provided for by the Federal law «On the Basic Guarantees of Electoral Rights and Right to Participate in a Referendum of the Citizens of the Russian Federation» (Art. 29). On the issue on dismissal from the office of the member of the Central Election Commission of the Russian Federation a secret voting is also held. A member of the Central Election Commission is considered to be dismissed from the office, if more than half of the members of the Council of Federation have voted for his dismissal. The appointment to the office and dismissal from the office of a member of the Central Election Commission of the Russian Federation is issued by the resolution of the Council of Federation; 2) the appointment of the members of the Higher Qualification Commission of Judges — the public members. In accordance with Art. 11 of the Federal law of March 14, 2002 No. 30-FZ «On the Bodies of the Judiciary in the Russian Federation» (Art. 11), the Council of Federation appoints ten members of the Higher Qualification Commission of Judges of the Russian Federation — the public members1. The notice on the vacancies among the members of the Higher Qualification Commission of Judges — the public members appointed by the Council of Federation, and the submission date for the candidacies for the appointment, is published in «Rossiyskaya Gazeta» and «Parlamentskaya Gazeta». The candidacies from among the public members for the appointment for the members of the Higher Qualification Commission of Judges are proposed to the Council of Federation by the all-Russian public organizations of legal activity and by the all-Russian public organizations, the main statutory purpose of which is to protect the rights and freedoms of man and citizen with the state registration in accordance with the Federal law of May 19, 1995 No. 82-FZ «On the Public Associations», as well as by the academic and pedagogical bodies, by the legal research organizations and by the legal educational institutions. 1



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The Higher Qualification Commission of Judges is formed in an amount of 29 members of the commission (4 — of the judges of the Supreme Court of the Russian Federation, 2 — of the judges of the federal courts of arbitration districts, 2 — of the arbitration appellate courts, 4 — of the judges of the Supreme Courts of the republics, territorial, regional courts, courts of the federal cities, court of the autonomous region and the courts of autonomous regions, 3 — of the judges of Arbitration Courts of the Russian Federation, 3 — of the judges of district (fleet) military courts, 10 Commission members — the members of the public are appointed by the Council of Federation, one member of the Commission — the representative of the President of the Russian Federation is appointed by the President of the Russian Federation).

Сhapter II. Parliament is the Supreme Representative and Legislative Body

Each all-Russian public organization and every academic and pedagogical body presents not more than one candidate. The all-Russian public organizations also present their founding documents to the Council of Federation. The issue on the appointment of the public members as the members of the Higher Qualification Commission of Judges of the Russian Federation is included in the draft agenda of the meeting of the Chamber by the Chairman of the Council of Federation. The preliminary selection of the candidacies and the formation of the list of candidacies is performed by the Committee of the Council of Federation on Constitutional Legislation and State Building. On the each candidacy provided for the appointment by a member of the Higher Qualification Commission of Judges of the Russian Federation, a secret voting is taken. A member of the public, who received during the voting the majority of votes of all members of the Council of Federation, is considered to be appointed. If one candidacy or several candidacies do not get the required number of votes of the members of the Council of Federation during the voting, the specified Committee of the Council of Federation presents the vacancies of the new candidacies to the Council of Federation in the prescribed manner. The issue on the early termination of office of a member of the Higher Qualification Commission of Judges of the Russian Federation — a public member appointed by the Council of Federation, is decided in the cases stipulated by the Federal law «On the Bodies of the Judiciary in the Russian Federation» and is carried out in the manner provided for the appointment of these members. The powers of a member of the Higher Qualification Commission of Judges — a member — are considered to be of early termination, if for this decision more than half of the members of the Council of Federation voted. The decision of the Council of Federation on the appointment or early termination of the office of a member of the Higher Qualification Commission of Judges — a public member — is issued by the resolution of the Chamber; 3) the decision of the issues of the foreign policy and inter-parliamentary cooperation. In accordance with Cl. «g» of Art. 106 of the Constitution of the Russian Federation in the Council of Federation the federal laws on the issues on ratification and denouncement of international agreements of the Russian Federation adopted by the State Duma are subject to the mandatory review. The Council of Federation also: –– considers proposals for legislative acts adopted by the Parliament of the Union State, the Inter-parliamentary Assembly of the Eurasian Eco65

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nomic Community, model legislative acts adopted by the Inter-parliamentary Assembly of States — the members of the Commonwealth of Independent States prepared by the Committee of the Council of Federation on International Affairs and other committees of the Council of Federation in accordance with the issues of their competence; –– cooperates with the foreign parliaments and international parliamentary organizations in accordance with the plan of inter-parliamentary cooperation, which is approved annually by the Council of the Chamber; –– concludes agreements on inter-parliamentary cooperation with the parliaments of other states and exchanges parliamentary delegations; –– on the initiative of the Chairman of the Council of Federation, the Council of the Chamber, the Committee of the Council of Federation submits the proposals on the application of special economic measures, increasing the efficiency of the use of special economic measures, on the abolition and (or) change of special economic measures to the President of the Russian Federation; 4) the appeal to the Constitutional Court of the Russian Federation. In accordance with Art. 125 of the Constitution of the Russian Federation and the Federal Constitutional Law «On the Constitutional Court of the Russian Federation», the Council of Federation may appeal to the Constitutional Court of the Russian Federation: a) with the requests on compliance with the Constitution of the Russian Federation of: the normative acts of public state power bodies and agreements between them; the international agreements of the Russian Federation that did not enter into force; b) with the petitions on the dispute settlement over jurisdiction between the Council of Federation and federal public state power bodies, public state power bodies of the regions of the Russian Federation; c) with the requests on the Constitution of the Russian Federation interpretation; d) with the requests on compliance with the established procedures for accusing the President of the Russian Federation of treason or other serious crime1. 1



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During its operation, the Council of Federation as the power body appealed to the Constitutional Court of the Russian Federation 13 times: on seven appeals the final decisions were made, on five — the so-appointed exemption decisions with the positive content, on one — a decision to terminate the proceedings. According P. 2 Art. 125 of the Constitution of the Russian Federation the request on the compliance with the Constitution of the Russian Federation of the provided for in the said article normative acts and agreements may be sent to the Constitutional Court of the Russian Federation by the group of no less than one fifth of the members of the Council of Federation. In this case the request is signed by the members of the Council of Federation, that send it to the Constitutional

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The proposal on the appeal of the Council of Federation to the Constitutional Court of the Russian Federation may be submitted for consideration to the Council of Federation by the Committee of the Council of Federation, the Chairman of the Council of Federation, or a group of members of the Council of Federation of no less than ten people. The draft resolution of the Council of Federation, the draft request or petition to the Constitutional Court of the Russian Federation, other documents and materials are previously discussed in the Committee of the Council of Federation on the Constitutional Legislation and State Building, which prepares the conclusion on them. The Council of Federation passed a resolution to send a request or petition of the Council of Federation to the Constitutional Court of the Russian Federation, a request or petition of the Council of Federation to the Constitutional Court of the Russian Federation, as well as a resolution on the appointment of a representative (representatives) of the Council of Federation when considering the appeal of the Council of Federation in the Constitutional Court of the Russian Federation. The candidacies for the appointment of the representative (representatives) of the Council of Federation when considering the appeal of the Council of Federation to the Constitutional Court of the Russian Federation together with the Committee of the Council of Federation on the Constitutional Legislation, Judicial and Legal Affairs, Development of the Civil Society, are presented by the Committee, the Chairman of the Council of Federation, or a group of members of the Council of Federation of no less than ten people, being the initiators of the proposal on the appeal of the Council of Federation to the Constitutional Court of the Russian Federation. It is necessary to distinguish the powers that do not belong to the Council of Federation in general, but belong to its committees. Thus, in accordance with Cl. «m» of Art. 83 of the Constitution of the Russian Federation, the appointment and dismissal of the representatives of the Russian Federation in the foreign states and international organizations are carried out by the President of the Russian Federation after the consultations with the relevant committees and commissions of the Chambers of the Federal Assembly. The Committee of the Council of Federation on the International Affairs considers the issue on the appointment and dismissal of the diplomatCourt of the Russian Federation, with the name, first name and patronymic indication of each member of the Council of Federation and the name of the represented by it region of the Russian Federation. The members of the Council of Federation took advantage of this right for six times. 67

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ic representatives in accordance with the presentation of the Ministry of Foreign Affairs of the Russian Federation. The mentioned Committee of the Council of Federation considers the notion of the appointment or dismissal of the diplomatic representatives at its meeting in the presence of (in coordination with the Ministry of Foreign Affairs of the Russian Federation) a candidate for the appointment as the diplomatic representative or the diplomatic representative, who proposed to be dismissed, as well as with the participation of the Ministry of Foreign Affairs of the Russian Federation, and gives its conclusion which within three days after the meeting is submitted to the President of the Russian Federation and the Ministry of Foreign Affairs of the Russian Federation. The competence of the State Duma is in the implementation of the legislative activities (Art. 105 of the Constitution of the Russian Federation)1. In addition, the Constitution of the Russian Federation (Art. 103) empowers the State Duma to: 1) approve the appointment of the Chairman of the Government of the Russian Federation by the President of the Russian Federation. In accordance with Cl. «a» of Art. 83, Cl. «a» of P. 1, Art. 103 and P. 1 of Art. 111 of the Constitution of the Russian Federation, the President of the Russian Federation under the consent of the State Duma appoints the Chairman of the Government. The State Duma shall consider the candidacy of the Chairman of the Government presented by the President within a week after the nomination. The approval decision of the State Duma on the appointment of the Chairman of the Government is taken at the discretion of the State Duma by a secret voting by filing the ballots or using the electronic vote counting system or by an open ballot. The approval to the appointment of the Chairman of the Government shall be elaborated under the conditions if the State Duma clearly expressed its will to it, voted in favor of the candidacy by a majority of the total number of the Deputies of the State Duma. The result of the vote on approving the appointment of the Chairman of the Government of the Russian Federation is drawn up by the resolution of the State Duma. In the case of the candidacy dismissal, the President makes a proposal of a new candidacy within a week after the dismissal. The discussion and approval of the new candidacy are held following the same procedure and at the same time. In the case of the two-time dismissal of the presented candidacies, the President once again proposes the candidacy for the office of the Chairman of the Government within a week from the date of the repeated. 1



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Ref. for the details Chapter V.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The discussion and the approval of the third candidacy is held in terms and order provided for the discussion and approval of the first two candidacies. The three time dismissal of the candidacies for the office of the Chairman of the Government presented by the President entails the dissolution of the State Duma and appoints new elections (P. 4 of Art. 111 of the Constitution of the Russian Federation). The general formulation of the constitutional norms has resulted in a dispute, when the President presented three times the same candidacy for the office of Chairman of the Government (the candidacy of S.V. Kiriyenko). In the interpretation of the constitutional provisions, the State Duma proceeded from the fact that the President shall present each time a new candidacy for the mentioned office. The resulting uncertainty in the understanding of the constitutional norms was withdrawn by the Constitutional Court of the Russian Federation in the Resolution of December 11, 1998 No. 28-P in the case of the interpretation of the provisions of the P. 4 Art. 111 of the Constitution of the Russian Federation. In accordance with its legal concept of the literal meaning of P. 4 Art. 111 of the Constitution of the Russian Federation, the three-time dismissal of the presented candidacies of the Chairman of the Government may mean the three-time dismissal of the candidacy for the office, and the three-time dismissal of the presented persons proposed for the office. According to the Constitutional Court of the Russian Federation, elected the teleological (target) interpretation method of the constitutional provisions, in this norm under the separation of powers the legislator aimed to prevent the confrontation between its branches, providing the ways to overcome the possible differences without delaying the formation of the Government, which could result in blocking its activity. On this basis, and considering that the President is the Head of the State and empowers to determine the activities of the Government and control it, it should be noted that he has a leading role in the formation of the Government and the selection of the Chairman’s candidacy, as well as the President’s right to choose an option of the Chairman’s of the State Duma candidacy presentation: to present each time a new or the same candidacy for the office of the Chairman of the Government. The consequence of the three-time dismissal of the candidacies (different or the same) for the office of the Chairman of the Government is the dissolution of the State Duma and the new elections appointment; 2) the discussion of the issue on confidence to the Government of the Russian Federation. In accordance with P. 3 of Art. 117 of the Constitution of the Russian Federation, the State Duma may express no confidence to the Government. 69

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A reasoned motion of no confidence to the Government can make a group of no less than one fifth of the total number of the deputies of the State Duma. The State Duma discusses the issue of no confidence to the Government of the Russian Federation within one week after its submission. After discussion of the issue at the meeting of the State Duma with an invitation of the Chairman of the Government, the Resolution of no confidence is adopted by a majority of votes of the total number of the deputies in the open or secret voting (under the decision of the State Duma). The motion of no confidence shall be considered dismissed if it did not gain the majority of votes of the deputies. If during the discussion of this issue the deputies of the State Duma — the initiators of the expression of no confidence to the Government of the Russian Federation withdraw their signatures, and thus the number of the deputies of the State Duma who made the motion of no confidence is less than one fifth of the total number of the deputies of the State Duma, the issue on no confidence to the Government is excluded from the procedure of the Chamber’s activities without an additional vote. If the President does not agree with the decision of the State Duma, within three months the State Duma is entitled to re-express no confidence to the Government. This decision will mean the presence of a parliamentary-governmental crisis. For solving it the President has the right to announce the resignation of the Government or to dissolve the State Duma. The Chairman of the Government may raise the issue before the State Duma of confidence to the Government himself. The Chamber discusses this issue in the extraordinary order. The decision on confidence is adopted by a majority of votes of all deputies. If it is not adopted, the refusal in confidence is put on voting. If this decision is not adopted either, the issued decision is terminated; 3) the hearing of the reports of the Government of the Russian Federation on the results of its activities, including the issues raised by the State Duma. By the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation of December 30, 2008 No. 7-FKZ «On Supervisory Powers of the State Duma in Respect of the Government of the Russian Federation» the reporting of the Government on its activities to the State Duma was established. Such additional supervisory power of the Parliament in respect to the Government has been fixed in the Constitution of the Russian Federation under the initiative of the President, who deems necessary to provide an additional resource for the stable operation of both public state power bodies without any significant change in their legal status. The constitutional amendments did not really change the content of the Russian presidentialism or parliamentarism, but only specified the mechanism of mutual relations «parliament — government». 70

Сhapter II. Parliament is the Supreme Representative and Legislative Body

Along with these constitutional changes the Federal Constitutional Law «On the Government of the Russian Federation» was amended with on the annual reports of the Government on the results of its activities, including on the issues raised by the State Duma, which are carried out in the manner prescribed by the Regulations of the Government. These reports are the subject to mandatory official publication in «Rossiyskaya Gazeta» and «Parlamentskaya Gazeta». The Chairman of the Government presents the report on the Government’s activities during the spring session. The Council of the State Duma in coordination with the Chairman of the Government establishes the date of the issue on the annual report discussion of the Government. The deputies have the right to ask the Chairman of the Government questions and express their opinion on the Government’s activities. According to the results of the report, the Resolution of the Chamber is adopted. The Constitution of the Russian Federation stipulates that the report, submitted by the Government, includes the responses to the questions raised by the State Duma on the activities of the Government. Such questions are formulated by the factions and submitted to the Council of the State Duma. The Council of the State Duma makes the final decision on the list of issues raised and submits it to the Government; 4) the appointment to the office and dismissal from the office of the Chairman of the Central Bank of the Russian Federation (Bank of Russia). In accordance with Art. 83 (Cl. «g») of the Constitution of the Russian Federation, the President presents the candidacy for the office of the Chairman of the Central Bank of the Russian Federation. The presentation should be made not later than three months before the expiration of the term of the President of the Central Bank of the Russian Federation. A majority of all deputies makes the appointment to the office. The State Duma determines the method of voting during the discussion of this issue. The candidacy shall be considered to be dismissed if he has not received the required number of votes. The reconsideration of the same or a new candidacy is made at the next meeting of the State Duma after his presentation by the President. One candidacy may not be presented more than two times. The issue on dismissal from the office of the Chairman of the Central Bank of the Russian Federation is also raised by the President and decided by a majority of all deputies. If the decision on dismissal from the office is not adopted, the dismissal is considered to be invalid. However, the margin of competence of both the President and the State Duma Chairman on the dismissal of the Chairman of the Central Bank of the Russian Federation is limited. He may be dismissed from the office only in the following cases: the expiration of the term of office; the impossibility of performance of official 71

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duties, confirmed by a state medical commission; the submission of the personal application for the dismissal; the commitment of a criminal offense, confirmed by a court verdict; the violations of the federal laws that regulate issues related to the activities of the Bank of Russia. According to the Federal Law of July 10, 2002 No. 86-FZ «On the Central Bank of the Russian Federation (Bank of Russia)» the State Duma also: –– appoints and dismisses the members of the Board of Directors of the Bank of Russia advised by the Chairman of the Bank of Russia, agreed by the President; –– directs and withdraws the representatives of the State Duma at the National Banking Council within of its quota (three — from among the deputies of the State Duma)1; –– considers the main directions of unanimous state monetary policy and makes decisions on them; –– examines the annual report of the Bank of Russia and makes decision on it. The State Duma takes the decisions on these issues by a majority of votes of all deputies of the State Duma; 5) the appointment to the office and dismissal from the office of the Chairman of the Accounts Chamber of the Russian Federation and half of its auditors. The President presents the candidacies for the appointment to the office of the Chairman and auditors of the Accounts Chamber based on the proposals of the Council of the State Duma. The list of the candidacies is formed by the Council of the State Duma on the proposals of the factions in the State Duma. The President of the Russian Federation is proposed to present at least three candidates for the office of the Chairman of the Accounts Chamber. The President selects one of these candidacies and submits him to the State Duma for the office of the Chairman of the Accounts Chamber. If any of the candidacies are not adopted by the President of the Russian Federation, he may nominate another candidacy and submit it to the State Duma for the office of the Chairman of the Accounts Chamber. The issue of the early dismissal from the office of the Chairman of the Accounts Chamber, the auditors of the Accounts Chamber is decided by the State Duma and advised by the President. 1



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According to Art. 12 of the Federal Law «On the Central Bank of the Russian Federation (Bank of Russia)», the number of the National Banking Council is 12 people, two of whom are sent by the Council of Federation from among its members, three of them — by the State Duma of the number of Deputy of the State Duma, three — by the President of the Russian Federation, three — by the Government of the Russian Federation. The National Banking Council is also includes the Chairman of the Bank of Russia.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

On the issue of the appointment to the office and dismissal from the office of the mentioned officials the resolution is adopted 1; 6) the appointment to the office and dismissal from the office of the High Commissioner for Human Rights in the Russian Federation. The person appointed to this office is authorized by the State Duma to control the compliance of the activity of the state power bodies, regional state power bodies, local authorities and their officials with the rights and freedoms of the citizens. According to the Federal Constitutional Law of February 26, 1997 No. 1-FKZ «On the High Commissioner for Human Rights in the Russian Federation», the High Commissioner is appointed for five years and for not more than two terms uninterruptedly. The President, the Council of Federation, the deputies of the State Duma and factions present the candidacies within a month before the end of the previous term of office of the High Commissioner for Human Rights, as well as in cases of early termination of his powers (including dismissal). The list for the secret voting includes the candidacies who receive at least two thirds of the total number of the deputies of the State Duma. A majority of all the deputies adopts the decision on the appointment. If the candidacy was dismissed, the same or a new one may be proposed. In the event when more than one candidacy was presented to the State Duma and after a secret voting, any of them received the required number of votes, the same or new candidacies may be proposed for re-consideration. The re-consideration of the candidacies is carried out at the next meeting of the Chamber after the receipt of the corresponding presentation. The appointed to the office of the High Commissioner for Human Rights takes the oath in accordance with Art. 9 of the Federal Constitutional Law «On the High Commissioner for Human Rights in the Russian Federation». In the case of an early dismissal of the High Commissioner for Human Rights from office, the State Duma should appoint the new High Commissioner for Human Rights in two months. At the meeting of the State Duma the issue of the giving of consent to the stripping of the High Commissioner for Human Rights immunity is also discussed; 7) the granting of amnesty. The amnesty is the exemption from criminal liability, total or partial exemption from punishment of persons who have 1



The Regulation of the State Duma, in contrast to the Regulation of the Council of Federation does not determine the procedure for the stripping of immunity of the Chairman of the Accounts Chamber, as well as the auditors of the Accounts Chamber, assigned by the State Duma. 73

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committed crimes or replacement of punishment appointed by the court for these persons to a lighter one, as well as the removal of criminal records from the persons who have served their sentence. The amnesty should be differed from a clemency, which applies to the individuals, and performed by the President in accordance with Art. 89 of the Constitution of the Russian Federation. The amnesty is declared by the State Duma for not separately determined group of persons. The State Duma carries out the granting of amnesty by the adoption of the Amnesty Act 1. The draft resolutions on amnesty are submitted in the State Duma and considered by it in the manner provided for the submission and consideration of the draft laws. The resolution on amnesty is adopted by a majority of votes of the total number of deputies, and shall be promulgated within three days after signing. The conclusions of the Constitutional Court of the Russian Federation, contained in the Judgement of July 5, 2001 No. 11-P in the case on the constitutionality of the Resolution of the State Duma of June 28, 2000 No. 492-III GD «On Amendments to the Resolution of the State Duma of the Federal Assembly of the Russian Federation «On the Granting of Amnesty in Connection with the 55th Anniversary of the Victory in the Great Patriotic War of 1941–1945» are of a significant interest. The Court stated that the Resolution of the State Duma, by which the amnesty was granted is a unique normative legal act in comparison with the resolutions of the State Duma on other issues, as well as other statutory regulations, adopted in the form of resolutions. The adoption of the Amnesty Acts by the State Duma is stipulated by the Constitution of the Russian Federation, that distinguishes these reso1



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The amnesty, for example, was declared by the State Duma in February 1994 in connection with the adoption of the new Constitution of the Russian Federation, as well as for national reconciliation to achieve civil peace and reconciliation; in April 1995 in connection with the 50th anniversary of the Victory in the Great Patriotic War, 1941–1945; in February 1996 in relation to those involved in illegal activities related to the armed conflict in the territory of the Republic of Dagestan in January 1996; in March 1997 in respect of persons who have committed socially dangerous acts in connection with the armed conflict in the Chechen Republic; in December 1999, in respect of persons who have committed socially dangerous acts in the course of the antiterrorist operation in the North Caucasus; in May 2000 in connection with the 55th anniversary of the Victory in the Great Patriotic War, 1941-1945; in November 2001 in respect of minors and women; in June 2003 in connection with the adoption of the Constitution of the Chechen Republic; in April 2005 in connection with the 60th anniversary of Victory in the Great Patriotic War of 1941- 1945; in April 2006 in connection with the 100th anniversary of the establishment of the State Duma of Russia; in April 2015 in connection with the 70th anniversary of Victory in the Great Patriotic War of 1941 — 1945.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

lutions from other regulations, including most of the laws, and thus they have a special constitutional nature. The statutory provisions contained in the Amnesty Act can and should function as a legal regulation, especially since the enactment of laws on amnesty is not envisaged by the Constitution of the Russian Federation as a necessary and compulsory. Such resolution, extending for not separately determined group of persons and activities, that is, having a regulatory character, in essence, allows the rejection of the implementation of the previously applied or to be applied — in respect of the said Act categories of persons and criminal acts — the norms of the Criminal Code of the Russian Federation. It cannot be done by the normative act not equal in validity to the law, because the acts below the level of the law should not in any case and relation contradicts it, preventing its use. Consequently, the resolutions of the State Duma on the amnesty in the current regulations on their level and considering its substantive content shall be equal only to the laws adopted by the State Duma. Having estimated the legal effect of the acts taken on these issues by the State Duma, the Constitutional Court of the Russian Federation determined restrictions on the granting of the amnesty. Thus, the State Duma, implementing the humanitarian tasks in the Amnesty Act at the same time shall consider the competitive constitutional values and on the basis of ensuring their balance, shall not admit the rights of others and necessary conditions for their implementation such as law, order and public safety to be threatened infringement. The State Duma may not go beyond the constitutional limitations of the wide discretion provided to it, that are determined primarily by the general legal principles, mandatory in a democratic society. According to these principles, in particular, the nature and the purpose of the Amnesty Act would not meet for the creation of the conditions for the exemption from the criminal liability for acts committed after the amnesty, because it would have provoked the crimes and would deprive them of the potential victims’ protection. The amnesty cannot be exercised in relation to separately specified group of persons, as this would be the assignment of powers conferred on other constitutional bodies, including judiciary. The creation via the amnesty of the conditions for the exemption from criminal responsibility of those who are involved in the decision adoption on the granting of the amnesty is unacceptable, that by virtue of the general nature of the discretion of the constitutional power would be on the contrary to the ideas of justice. The terms of the amnesty cannot be formulated in such a way that they would allow the arbitrary applications. The acts, modifying the terms of the 75

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granted amnesty for the worse to the amnestied persons, shall not be published, because it is not only on the contrary to the prohibition of worsening the situation of the citizen in the field of criminal responsibility and serving the sentence by the adoption of the new Act, but is not consistent with the nature of the amnesty as an act of mercy and constitutional responsibility of the state power. This liability during the amnesty dictates also the need to take into account and ensure the problems of socialization of the amnestied persons, as may otherwise be compromised the interests of a stable legal order and implementation of the rights of citizens in a democratic society; 8) bringing an accusation in respect to the President of the Russian Federation for his dismissal from the office. By a group of no less than one third of the total number of deputies, the proposal for bringing in respect to the President with a view to his dismissal from the office is submitted, and it shall contain specific instructions on signs of a crime under Art. 93 of the Constitution of the Russian Federation. To give an opinion on the assessment of compliance with the procedural Regulations and the reasonableness of the accusation in respect to the President, the State Duma shall elect from among its members a special committee of 15 members taking into account the proportional representation of the factions. At the meeting of the State Duma, the proposal to bring an accusation and the conclusion of a special commission is considered. By the decision of the Chamber, the meeting may be declared closed. Following the discussion a resolution on the accusation bringing in respect to the President is adopted by the two thirds of the total number of deputies. The resolution is adopted by a secret voting using the ballots or by the open voting using the nominal ballots by the decision of the Chamber. The resolution of the State Duma on the accusation bringing in respect to the President is to be sent to the Council of Federation within five days, and for the opinion submission to the Supreme Court of the Russian Federation. In the Russian political practice, only two attempts to start the procedure for dismissal of the President from the office have been taken. In 1995, a proposal to establish a special committee in connection with the tragic events in the Chechen Republic has not received the required majority of votes for the adoption. In 1999, the procedure was initiated by the communist opposition and reached the Chamber voting on the bringing an accusation. However, none of the five clauses got the required the twothirds majority of votes to continue the procedure in the State Duma. In addition to the above powers, the State Duma also performs: 1) the appointment to the office and dismissal from the office of members of the Central Election Commission of the Russian Federation. 76

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In accordance with the Federal Law «On Basic Guarantees of the Electoral Rights and the Right to Participate in a Referendum of the Citizens of the Russian Federation» (Art. 21), the State Duma appoints five members of the Central Election Commission of the Russian Federation from among the candidacies proposed by an association of deputies in the State Duma, as well as by the deputies of the State Duma. The appointment is made at the session of the State Duma, closest to the day of expiry of the term of office of the members of the Central Election Commission. The members of the Central Election Commission are elected for a term of office of the Central Election Commission. The voting is arranged for each candidacy separately. If the deputies of the State Duma or the factions propose more than five candidacies, a rating vote shall be held. The persons appointed to the office of the members of the Central Election Commission are considered to be from among the first five candidates who obtained the largest number of votes. According to the decision adopted by the State Duma, a resolution shall be issued. The issue on early dismissal from the duties of the members of the Central Election Commission, appointed by the State Duma shall be considered by the State Duma in cases stipulated by the Federal Law «On Basic Guarantees of the Electoral Rights and the Right to Participate in a Referendum of the Citizens of the Russian Federation». The decision is considered to be adopted if the majority of all the deputies of the State Duma voted for it; 2) the consideration of foreign policy issues. The State Duma considers the foreign policy issues on its own initiative or in connection with the appeal of the President of the Russian Federation or on the reports and communications of the Government of the Russian Federation and the committees of the Chamber. The State Duma adopts appeals and statements, which express the position of the Chamber on general or specific issues of the foreign policy of the Russian Federation, as well as on the international relations issues in general. The initiative of the draft appeals submission and statements of the State Duma may come from the subjects of the legislative initiative. The draft appeals and statements of the State Duma on foreign policy issues, are previously considered by the Committee of the State Duma on the International Affairs and (or) by the Committee of the State Duma on Commonwealth of Independent States Affairs, Eurasian Integration and Relations with Compatriots, if necessary, by the other committees of the Chamber on the profile of their activities. Within the designated powers, the State Duma also: –– adopts the decision on ratification, termination and suspension of the international agreements of the Russian Federation which are declared to 77

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be bound for the Russian Federation in the form of a federal law in the same order as on the other draft laws, unless otherwise provided by the Chamber’s Regulation; –– annually elaborates the plans of the international relations with the parliaments of other states; –– concludes, if necessary, the agreements on the inter-parliamentary cooperation with the parliaments of other states and international parliamentary organizations; –– considers the recommendative legislative acts of the Inter-parliamentary Assembly, adopts the decisions on their implementation; –– develops the procedure for forming the general delegations and Russian parts of the inter-parliamentary commissions (parliamentary or working groups) of the Federal Assembly in coordination with the Council of Federation; –– under the agreement with the Council of Federation approves the unanimous procedure of the protocol, financial, organizational and technical support of the foreign parliamentary delegations in the Russian Federation, as well as the deputies of the State Duma, leaving the Russian Federation within the Russian parts of the inter-parliamentary commissions or in the delegations of the State Duma or the Federal Assembly; 3) the appeal to the Constitutional Court of the Russian Federation. In accordance with Art. 125 of the Constitution of the Russian Federation and the Federal Constitutional Law «On the Constitutional Court of the Russian Federation», the State Duma may appeal to the Constitutional Court of the Russian Federation: a) with the requests on compliance of the normative acts of the public state power bodies and agreements between them; and the international agreements of the Russian Federation that did not enter into force with the Constitution of the Russian Federation; b) with the petitions on the disputes concerning the jurisdiction, in which one of the parties is a State Duma; c) with the request for interpretation of the Constitution of the Russian Federation in the case of discovered uncertainty in the understanding of its provisions. The faction or committee of the State Duma submits the proposal on the appeal with the request or a petition to the Constitutional Court of the Russian Federation 1. 1



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The State Duma from 1995 to 2015, appealed to the Constitutional Court 39 times, on 17 appeals have been adopted the resolutions of the Constitutional Court of the Russian Federation, on 21 — decision refusing to accept the petition for consideration, and on one — decision to terminate the proceedings. The request to the Constitutional Court of the Russian Federation may also be sent to a group of deputies numbering not less than one-fifth of the total number of deputies of the State Duma on the issues stipulated in Cl. 2, Art. 125 of the

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The consideration of the proposals and the adoption of the decisions on the appeal to the Constitutional Court of the Russian Federation is carried out by the State Duma in the manner prescribed for the adoption of the resolutions by the State Duma. Similarly to the above-mentioned powers of the Committee of the Council of Federation on the International Affairs, the Committee of the State Duma on the International Affairs and the Committee of the State Duma on Commonwealth of Independent States Affairs, Eurasian Integration and Relations with Compatriots, together with the other committees of the State Duma on the issues of their competence and in accordance with Art. 83 (Cl. «m») of the Constitution of the Russian Federation also participate in the consultations on the appointment and reappointment of the diplomatic representatives in foreign countries and international organizations by the President of the Russian Federation. The Constitution of the Russian Federation also contains other establishments related to the competence of the Federal Assembly, in the field of legislative activity, internal organization, method of work, the status of a member of the Council of Federation and a deputy of the State Duma. They will be discussed in the following sections of the book that will fully describe the activities of the Federal Assembly. § 3. Constitutional and legal principles of formation of the Federal Assembly

The Constitution of the Russian Federation in the most general terms, determines the procedure of formation of the Federal Assembly, stipulating that the State Duma is elected and the Council of Federation is formed of the representatives of the regions of the Federation (two — from each region). Thus, the Constitution gives the right to the legislator to determine, how the formation of the Council of Federation and the procedure for elections to the State Duma will be elected. Currently, there are two federal laws that define the procedure for the formation of the Chambers of the Federal Assembly: of December 3, 2012 No. 229-FZ «On the Elections of the Deputies of the State Duma of the Federal Assembly of the Russian Federation» and of May 18, 2005 No. 51-FZ «On the Elections of the Deputies of the State Duma of the Federal Assembly of the Russian Federation»1.

1



Constitution of the Russian Federation. During the same period such requests were 41, on 15 of them by the Constitutional Court of the Russian Federation had taken the final decision. In the elections of the Deputy to the State Duma in 2016 the Federal Law of February 22, 2014 No. 20-FZ «On the Elections of the Deputies of the State Duma of the Federal Assembly of the Russian Federation» will act. 79

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The principles of formation of the Federal Assembly: the popular representation, the federalism, the periodic renewal of the chambers, the political pluralism and the multiparty system. The principle of the popular representation is in the nature of the Parliament itself as a representative body (formed directly by the citizens) — on the basis of the general elections arrangement (the State Duma), or indirectly — through other bodies (the Council of Federation). Based on the principle of federalism the entire system of public state power bodies is built. In accordance with Art. 11 of the Constitution of the Russian Federation, the state power (including legislative) in the regions of the Russian Federation is perfomed by the public state power bodies formed by them. Although between the legislative public state power bodies the institutional subordination is absent, the Federal Assembly occupies the highest position in the system due to the general federal nature of its formation and powers. The principle of the federalism is reflected in the order of forming of the Council of Federation, consisted of representatives of the regions of the Federation. Two members of the Council of Federation, regardless of the regional, national, and other numerical signs represent each of the regions, which corresponds the enshrined in Art. 5 of the Constitution of the Russian Federation principle of equality of the regions of the Russian Federation. Although the members of the Council of Federation represent the regions of the Russian Federation, the principle of federalism suggests that the priority for the Chamber is the interests of the state, rather than the separate regions. As rightly noted in the legal literature, the procedure of formation of the Parliament can not be considered outside the context of its appointment1. The principle of the periodic renewal of the Parliament’s membership is due to the democratic nature of the Russian state. Forming the bodies of popular representation, the citizens exercise the right to participate in managing of the state affairs. The obligation of the periodic elections is provided for by the Universal Declaration of Human Rights (Art. 21) and the International Pact on Civil and Political Rights (Art. 25). The principle of the political pluralism and the multiparty system as one of the most important elements of a democratic state is enshrined in Art. 13 of the Constitution of the Russian Federation. This principle is taken as the basis in the formation of the State Duma. The deputies of the State Duma are elected within the federal electoral district in proportion to the 1



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Ref.: S.A. Avakyan. The Federal Assembly — the Parliament of Russia. Moscow, 1999, 63 p.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

number of votes given for the federal lists of candidates from the political parties. The participation of the various political parties in the struggle for the parliamentary mandates reflects the democratic nature of the formation of a representative body 1. However, it must be borne in mind that in the legislation of the Russian Federation, as well as in the other countries, the so-appointed defensive point (percent barrier), indicating a limitation of proportional representation is provided. This restriction allows to avoid the fragmentation of the deputy corps into many small groups, to the formation of which the proportional system can lead, in order to ensure the proper functioning of the Parliament, the stability of the legislative power and the constitutional system as a whole. As pointed out by the Constitutional Court of the Russian Federation, by resolving the issue on the constitutionality of certain provisions of the Federal Law «On Elections of the Deputies of the State Duma of the Federal Assembly of the Russian Federation»2, these provisions do not limit the electoral rights of the citizens and do not violate the legal equality of the public associations, provided in Cl. 4 Art. 13 of the Constitution of the Russian Federation. The elections is an opportunity for voters to identify their preferences and vote for the relevant candidate or list of candidates and, therefore, to define the presence of the winners and losers. However, the Regulations by which the elections are held, for all electoral associations, electoral blocs, and for all citizens participating in the elections on the federal lists are the same. This procedure does not distort the essence of the national representation. The citizens who did not vote at all or voted, but not for those candidates who were elected, cannot be regarded as deprived of their representation in Parliament. From the articles 3, 32, 94, 95 and 96 of the Constitution of the Russian Federation in their mutual relationship follows that all the State Duma deputies are elected the representatives of the people and, therefore, the representatives of all the citizens who have the right to manage the affairs of state through their representatives. The candidate who won the elections under the conditions prescribed by law, irrespective of what electoral district, whether single-seat, or federal, he was elected, became the deputy of the State Duma as the representative body 1



2



According to the Federal Law of July 11, 2001 No. 95-FZ «On Political Parties» after two years from the date of its publication, the political party became the only form of public association with the right to nominate its own candidates (lists of candidates) for deputies and for other elective offices in the public state power bodies (Cl. 1, Art. 36). Moreover, the party that did not participate for five years in the elections is the subject to liquidation. Collection of laws of the Russian Federation. 1998. No. 48. P. 5969. 81

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of the Russian Federation, that is, the representative of the people in the sense and the framework of Art. 3 of the Constitution of the Russian Federation. At the same time, the defensive point is an inadmissible usage of the proportional elections purpose, so the legislator seeks to be ensured that in its application the highest realization of the proportional representation principle was ensure. The application of the percent barrier, for example, is unacceptable, if the federal lists, having overcome this barrier, and taken together will not get 60 per cent of the voters who took part in the voting. In addition, it should be noted that by the sense and the framework of Art. 1 and 13 of the Constitution of the Russian Federation, the democracy based on political pluralism and a multiparty system, based on the need of the existence of the opposition and does not allow the monopoly of power, so if the security barrier will be overcome only by one list, even provided with a majority of votes, all the parliamentary mandates cannot be transferred to it, as this would be on the contrary to the principle of the democratic elections proportionality. The multiparty of the Parliament manifests itself not only in the order of formation of the State Duma, but also in the activities of the deputies. Thus, the deputies working together create faction1, built on the «party» principle, take decisions in accordance with the «party» regulations, often in the discussion and voting on the most urgent discussion the members of one faction decide to vote in a unified manner, thus expressing the «party» position on certain issues, etc. The order of formation and term of office of the Council of Federation is established in accordance with Art. 95 of the Constitution of the Russian Federation. The Council of Federation includes two representatives from the 85 regions of the Federation, as well as the representatives of the Russian Federation, appointed by the President of the Russian Federation, the number of which is not more than ten percent of the members of the Council of Federation — the representatives of the legislative (representative) and executive bodies of the subjects of the Russian Federation. Each region of the Federation is represented by two members of the Council of Federation: by one from the legislative (representative) body, and by one from the executive body. The procedure for forming of the Council of Federation for the period of the existence of this body was changed several times. The officers of the Chambers of the Federal Assembly of the first convocation due to the final and transitional provisions of the Constitution of the Russian Federation were directly elected by the citizens of the Russian 1



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Ref. Chapter III.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

Federation for a period of two years, so the members of the Council of Federation of this convocation in the Basic Law are called as the deputies. The regulations on the election of deputies of the Council of Federation of the Federal Assembly of the Russian Federation in 1993, approved by the Decree of the President of the Russian Federation of October 11, 1993 No. 1626, stipulated that a deputy could be a citizen of the Russian Federation over 21 years of his age. The deputies of the Council of Federation were elected through the majoritarian system of binomial (one district — two deputies) electoral districts established within the administrative borders of the regions of the Russian Federation. In the elections, each voter gave a voice for two candidates. With the introduction of the Federal Law of December 5, 1995 No. 192-FZ «On the Procedure of the Formation of the Council of Federation of the Federal Assembly of the Russian Federation», the Council of Federation includes two representatives from each region of the Russian Federation: the head of the legislative (representative) and the head of the executive bodies. In the bicameral legislative (representative) body of the region of the Russian Federation, its representative was determined by the joint decision of both chambers. This method of the Chamber forming was not enough correct in relation to the principle of the Federal Assembly activities as a permanent body enshrined by the Constitution of the Russian Federation, as the members of its upper chamber — the heads of the legislative and executive bodies of the subjects of the Federation by virtue of their duties most of the time were forced to stay in places. From the point of view of the constitutional principle of the separation of powers, the entry of the heads of executive bodies of the regions of the Russian Federation into the Chamber’s staff was vulnerable1. On this basis, the Federal Assembly of the Russian Federation supported the initiative of the President of the Russian Federation on the professionalization of the Chamber and adopted a federal law that defines another procedure for its formation. The Federal law of August 5, 2000 No. 113-FZ «On the Procedure of the Formation of the Council of Federation of the Federal Assembly of the Russian Federation», changing the procedure of the Council of Federation 1



On February 21, 1997 the State Duma appealed to the Constitutional Court of the Russian Federation with a request to review the constitutionality of the provisions of this Law. In the definition of April 10, 1997 No. 57-O the court refused to accept this request, seeing in it an inquiry about the constitutionality of the constitutional norm, said that the Duma as the subject of the legislative process has the right to make changes to existing federal laws and adopt new ones. 83

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formation, transformed it into a permanent, rather than a session body, provided more authoritative competences of this Chamber as a member of the legislative process. Since 2000, the procedure in which the member of the Council of Federation could be elected (appointed) a citizen of the Russian Federation who has attained the age of 30 and has, in accordance with the Constitution of the Russian Federation the right to elect and be elected to the state bodies has been existing. The members of the Council of Federation are elected and appointed respectively by the legislative (representative) body and by the highest official of the region of the Russian Federation for the term of their office. At that, the decision (decree, regulation) on the appointment of a representative in the Council of Federation from the executive body of the subject of the Russian Federation comes into force if at the ordinary or extraordinary meeting of the legislative (representative) body the two-thirds of the total number of its deputies did not vote against the appointment of this representative. Some changes in the future relate to requirements for the candidates, as well as the procedure of early termination of powers of a member of the Council of Federation. Thus, in 2007, the residency requirement was submitted, and a candidate member of the Council of Federation was supposed to live at least 10 years in total on the territory of the corresponding region of the Russian Federation. The powers of a member of the Council of Federation, in addition to the grounds provided by the Federal Law of May 8, 1994 No. 3-FZ «On the Status of a Member of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation» could be terminated earlier by the body elected him by the application of the Chairman of the Council of Federation. In the message to the Federal Assembly of the President of the Russian Federation of November 5, 2008 a procedure for the Council of Federation formation was proposed and to be introduced from January 1, 2011. The Council of Federation began its formation from among those who had been elected to the legislative bodies, and had been appointed to the relevant local government of the region of the Federation. The candidates to the members of the Council of Federation should at first pass the procedure of the public election, i.e., to have experience of working with voters and present not only the power bodies of the region of the Federation, but also, directly its population. A candidate for election (appointment) as a representative in the Council of Federation could be: 84

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a) a deputy of the State Duma, a member of a candidate for deputy in the regional group of candidates of the federal list of the candidates, corresponding to the region of the Russian Federation or a part of the territory of the region of the Russian Federation, composed by the public state power body which carried his election (appointment) as a member of the Council of Federation, or the corresponding group of the regions of the Russian Federation, by the public state power body of one of them which carried his election (appointment) as a member of the Council of Federation; b) a deputy of the legislative (representative) body of state power of the subject of the Russian Federation, composed by the state body which carried his election (appointment) as a member of the Council of Federation; c) a deputy of the representative body of the municipality, located on the territory of the Russian Federation, composed by the state body which carried his election (appointment) as a member of the Council of Federation. The elected (appointed) member of the Council of Federation within the statutory period shall leave the elected office of the deputy of the State Duma, the deputy of the legislative (representative) body of the subject of the Russian Federation or a deputy of a representative body of the municipality. The procedure of election (appointment) of the representatives and the term of their office were different. Thus, a member of the Council of Federation — the representative of the region of the Russian Federation from the legislative (representative) body was elected for a term of his office (under the formation of the legislative (representative) body through the rotation — for a term of office of the onetime elected deputies). If the legislative (representative) body of the region of the Federation has a bicameral structure, a member of the Council of Federation was elected alternately from each chamber for half term of the office of the relevant Chamber. The highest official (the head of the highest executive body of the state power) of the region of the Russian Federation appointed the member of the Council of Federation — the representative of the executive body of the region of the Federation for his term of office. In accordance with the Federal law of December 3, 2012 No. 229-FZ «On the Procedure of the Formation of the Council of Federation of the Federal Assembly of the Russian Federation», from January 1, 2013 the appropriate body of the region of the Russian Federation on the basis of the will of the voters of this region of the Russian Federation is empowering the member of the Council of Federation. The empowerment of the member of the Council of Federation is performed respectively to the legislative (representative) body of the Russian 85

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Federation of the new convocation and re-elected the highest official of the region of the Russian Federation (the head of the supreme executive body of the region of the Russian Federation) for a term of office of this state body of the region of the Federation. Under the new order, a candidate for the post of a member of the Council of Federation may be a citizen of the Russian Federation who has attained the age of 30, has an impeccable reputation and has been residing in the territory of the corresponding region of the Russian Federation for five years immediately preceding the nomination of a candidate for the post of member of the Council of Federation, or together for twenty years prior to the nomination of a candidate for the post of member of the Council of Federation1. A candidate for the post of member of the Council of Federation is a representative of the legislative (representative) body of the region of the Russian Federation and he can only be a deputy of this body. The candidates for a member of the Council of Federation are the representatives of the legislative (representative) body of the Federation and they are presented for the consideration to this body by its Chairman, faction or a group of the deputies no less than one fifth of the total membership2. The decision on the empowerment of a member of the Council of Federation is adopted by a majority of votes of the total membership of this body and is formulated by a resolution of the legislative body of the state power of the region of the Federation. 1



2



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The requirement on the permanent residence in the territory of the Russian Federation does not apply to a candidate who on the day of voting in the election of a relevant state body of the region of the Russian Federation is a member of the Council of Federation and a deputy of the State Duma; and together for the five years prior to nomination as a candidate for the post of member of the Council of Federation: a) does or did the military service, service in the bodies of internal affairs, the institutions and bodies of the correctional system, the bodies of control over the traffic of the narcotic drugs and psychotropic substances, the customs bodies, tax authorities, the Investigative Committee of the Russian Federation, the Prosecutor’s Office of the Russian Federation on the territory of the corresponding region of the Russian Federation; b) does or did the Foreign Service and has the diplomatic rank of Extraordinary and Plenipotentiary Ambassador; c) held or holds the public offices or the civil service offices of the corresponding region of the Russian Federation; d) held or holds the municipal offices or the municipal service office of the corresponding region of the Russian Federation. The chairman, the faction, the group of deputies have the right to introduce to the legislative (representative) body of the Russian Federation a maximum of one candidacy for the office of a member of the Council of Federation.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

Such decision shall be adopted within one month from the date of the first meeting in the quorum of the legislative (representative) body of the state power of new convocation, including the event of early termination of the powers of this body of the previous convocation, and in the case of early termination of powers of a member of the Council of Federation — not later than one month from the date of early termination of the powers of the previous member of the Council of Federation. The procedure of empowering a member of the Council of Federation — a representative of the executive body of the region of the Russian Federation has been changed. Now at the elections of the highest official of the region of the Russian Federation (the head of the highest executive body of the Russian Federation) three candidacies that meet the requirements and limitations, shall be submitted to the relevant election commission one of whom will be empowered to a member of the Council of Federation — a representative of the executive body of the region of the Russian Federation1. If by the constitution (charter) and the law of the Russian Federation, the election of the highest official of the region of the Russian Federation (the head of the highest executive body of the Russian Federation) shall be arranged by the deputies of the legislative (representative) body of the Russian Federation, the candidates for the office of a member of the Council of Federation of the executive body of the region of the Russian Federation are submitted by a candidate for the office of the highest official of the region of the Russian Federation to the Parliament of the region of the Russian Federation. At the same time the candidate for the office of a member of the Council of Federation can only be a deputy of the State Duma of the Federal Assembly of the Russian Federation (included as a candidate deputy to the regional group of candidates of the federal list of candidates, appropriate to this region of the Russian Federation or group of the regions of the Russian Federation, which includes this region of the Russian Federation, or part of the territory of the region of the Russian Federation) or a deputy of the legislative (representative) body of this region of the Russian Federation or a deputy of the representative body of the municipality, located on the territory of the said region. A candidate may also be a member of the Council of Federation — a representative of the region of the Russian Federation, who on the day of the 1



At the same time one and the same candidacy for the office of the member of the Council of Federation — the representative of the executive body of the subject of the Russian Federation can not be represented by the different candidates for the office of the highest official of the region of the Russian Federation (the head of the highest executive body of the Russian Federation). 87

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submission of the candidates for the office of the highest official of the region of the Russian Federation by the President of the Russian Federation will be supported by at least 10 percent of the number of representative bodies of municipal formations of the said region of the Russian Federation. Information about these candidacies (surname, name, date of birth, name of the region of the Russian Federation, district, city, another urban settlement, where the place of residence is, main place of work or service, office, and when the main place of work or service are absent — occupation) are placed on the information stand in the voting room indicating presenting them as the candidates for the office of the highest official of the region of the Russian Federation, and can be brought to the attention of the voters by other means provided by law. The decision on the empowerment of this member of the Council of Federation, issued by the corresponding decree (regulation) shall be adopted by the re- elected highest official of the region of the Russian Federation not later than the next day after his inauguration. In the event of early termination of office of a member of the Council of Federation — a representative of the executive body of the region of the Russian Federation, the highest official of the region of the Federation within ten days invests one of the candidacies who was submitted by him earlier in the elections with authority of a member of the Council of Federation. If any candidacy from the list will not be able to have the authority of the member of the Council of Federation, the highest official of the region of the Russian Federation invests a deputy of the legislative (representative) body of the corresponding region of the Russian Federation corresponding to statutory requirements and restrictions with authority of a member of the Council of Federation — a representative of the executive body of the region of the Russian Federation. In the event of early termination of office of the highest official of the region of the Russian Federation, a member of the Council of Federation — a representative of the executive body of the region of the Russian Federation continues to exercise his powers until the decision of the re-elected highest official of the region of the Russian Federation on the conferring authority of a new member of the Council of Federation entry into force. Since the periodic renewal of the staff of the Council of Federation is carried out in some other manner than the renewal of the staff of the State Duma, — by rotation of its members (with the exception of the Council of Federation of the first convocation), it is more accurate to speak not about the term of office of the Chamber, but about the term of office of its members. The powers of a member of the Council of Federation start from the date when the relevant state body of the subject of the Russian Federation pro88

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viding him with powers of a member of the Council of Federation entry into force and terminate on the date when the decision on the conferring authority to a new member of the Council of Federation — a representative from the same body of the region of the Russian Federation entry into force. According to the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation of July 21, 2014 No. 11-FKZ «On the Council of Federation of the Federal Assembly of the Russian Federation», the President of the Russian Federation may not dismiss the appointed prior to his assuming office member of the Council of Federation — a representative of the Russian Federation in the first term of his office, except the cases stipulated in the federal law. The powers of a member of the Council of Federation may be terminated early only on the grounds provided by the Federal Law «On the Status of a Member of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation»1. The foreign experience shows that the reflection of the federal nature of the state is the dominant, but not a common feature characteristic for the upper chambers of the Parliaments of the Federations. In this connection, the model of the formation of these chambers cannot be identified, but on the contrary, their diversity can be stated. Thus, the members of the Council of Cantons of the Swiss Confederation and the Senate of the US Congress are directly elected by the population of the cantons and states. In Germany, the state bodies of lands appoint the members of the Bundesrat. The members of the Federal Council of Austria are elected by the regional legislative meetings (Landtag). A complex combination of direct and indirect elections in the presence of ethnolinguistic quota exists in Belgium. In the Russian Federation the initiatives on the formation of the Council of Federation by the direct elections of the members of the Council of Federation are not yet implemented2. 1 2



Ref. for details Chapter III. On December 15, 2011, the Chairman of the Government of the Russian Federation V.V. Putin during the «live appoint-in» said that he considered it possible to form the Council of Federation through the direct elections of the candidates proposed by the parties, passed in the regional parliament. At the same time, he proposed to pass through the «presidential filter» the candidates of the party, who win the regional elections, and to present their candidacy for the Court of the citizens and to form the upper chamber of Parliament by the direct secret voting. However, this proposal during its exploring caused the difficulty of interpretation of the constitutional provisions on the election not on the Council of Federation election, but on its formation by the representative of the legislative and executive power. 89

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The procedure of formation and the term of office of the State Duma The State Duma consists of 450 deputies elected by the citizens of the Russian Federation on the basis of general equal and direct elections by secret voting. A deputy of the State Duma may be a citizen of the Russian Federation over 21 years, who has the right to participate in elections. The citizen has not the right to be elected to the State Duma of the Russian Federation if he: 1) has a foreign nationality or a residence permit or other document confirming the right to permanent residence of a citizen of the Russian Federation on the territory of a foreign state; 2) is convicted to imprisonment for committing of a grave and (or) a particularly serious crime, and who has the outstanding conviction for the mentioned crime on the day of voting; 3) is convicted of committing a crime of an extremist nature, provided by the Criminal Code of the Russian Federation, and who has on the day of voting the outstanding conviction for the mentioned crime; 4) is subjected to the administrative penalties for propaganda and public demonstration of Nazi attributes or symbols (Art. 20.3 of the Code of Russian Federation of the Administrative Violations (hereinafter — the CoAV Russian Federation)), as well as for the production and distribution of the extremist materials (Art. 20.29 of the CoAV Russian Federation), if the voting on the State Duma Deputy elections will be held before the end of the period during which a person is subjected to the administrative penalties; 5) in respect of him the effective decision established the fact of constraint violations during the election campaign (Cl. 1, Art. 56 of the Federal Law «On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of the Citizens of the Russian Federation») or other actions of an extremist nature before the acquisition of the status of the candidate (sub-Cl. «g» Cl. 7 and sub-Cl. «g» Cl. 8, Art. 76 of the Federal Law «On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of the Citizens of the Russian Federation»), and if such violations or actions were committed in a period not exceeding five years prior to the election day. A citizen of the Russian Federation in respect of whom the court verdict on the deprivation his right to occupy the public offices for a certain period of time entered into force, cannot be registered as a candidate for the State Duma elections, if the voting in the elections will be held before the expiry of the term set by the court. Only a political party can arrange the direct nomination of the candidates. The elections to the State Duma are carried out within a single federal electoral district. 90

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The deputies of the State Duma are elected by the citizens of the Russian Federation, reached the age of 18 on the day of the voting on the basis of general equal and direct electoral right by secret voting. The participation of a citizen of the Russian Federation in the elections is free and voluntary. Nobody has the right to have an impact on the citizen of the Russian Federation in order to compel him to participate or not to participate in the elections, as well as to interfere to his free will. A citizen of the Russian Federation, who is recognized by the court as incapable or serves imprisonment under a court sentence, does not have the right to elect and to be elected. In accordance with the amendments to the Constitution of the Russian Federation of 2008 the date of convocation of the State Duma has been increased from four to five years. In accordance with Cl. «a» Art. 84 of the Constitution of the Russian Federation, the President of the Russian Federation appoints the elections of the deputies of the State Duma of the new convocation. According to the Federal Law «On the Elections of the Deputies of the State Duma of the Federal Assembly of the Russian Federation» (P. 2, Art. 6) the day of voting is the first Sunday of the month in which the constitutional term expires and on which the State Duma of the previous convocation was elected. The calculation of the constitutional term for which the State Duma was elected starts from the date of its election, i.e. the voting day on which it was elected by the quorum. According to the resolution of the Constitutional Court of the Russian Federation of July 1, 2015 No. 18-P, the provisions of Articles 96 (P. 1) and 99 (P. 1, 2 and 4) of the Constitution of the Russian Federation in conjunction with its other provisions do not exclude the possibility to change the date of the next elections by the federal law, leading to a reduction of the real (actual) term of office of the State Duma of the current convocation. However, this can only occur under the condition that such a reduction is carried out in constitutionally significant purposes, and does not entail a deviation from the reasonable periodicity of the regular elections of the State Duma arrangement and the continuity of its activities and is a minimally negligible1. The decision to appoint the election shall be made no earlier than 110 days and not later than 90 days before the voting day. If the President of the Russian Federation does not appoint the elections of the deputies of the 1



The Resolution of the Constitutional Court of the Russian Federation of July 1, 2015 No. 18-P «On the Case of the Interpretation of Articles 96 (Part 1) and 99 (Parts 1, 2 and 4) of the Constitution of the Russian Federation» // Rossiiskaya Gazeta. July 8, 2015 91

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State Duma within the prescribed period, the Central Election Commission of the Russian Federation shall appoint the elections. Due to the fact that the Federal Assembly is a permanent body, the powers of the State Duma and its deputies are kept prior to the State Duma of a new convocation. However, the Constitution of the Russian Federation provides the possibility of the early termination of powers of the State Duma in the event of its dissolution by the President. Thus, the President has the right to dissolve the State Duma and appoint the new elections after three times of its rejection of the nominated candidacies of the Chairman of the Government (P. 4, Art. 111 of the Constitution of the Russian Federation). The President may dissolve the State Duma, if the Chamber will re-confirm its position within three months from the date of its no-confidence resolution to the Government. In this situation, the President shall announce the resignation of the Government or dissolve the State Duma (P. 3 Art. 117 of the Constitution of the Russian Federation). According to the provisions of P. 4 Art. 117 of the Constitution of the Russian Federation, the President may exercise the right of dissolution of the State Duma, or adopt the decision on the resignation of the Government when the Chairman of the Government puts before the State Duma the issue of confidence to the Government and the State Duma votes of no confidence. The Constitution of the Russian Federation provides the cases when the State Duma may not be dissolved: –– on the grounds stipulated in Art. 117 of the Constitution of the Russian Federation within a year after its election; –– from the moment when it brings charges in respect of the President prior to the relevant decision adopted by the Council of Federation; –– during the action of the war or emergency case on the entire territory of the Russian Federation, as well as within six months before the end of the term of office of the President. However, it is held back, if the resignation of the Government in the event of the State Duma vote of no confidence is obligatory. According to the general position, since the beginning of the work of the State Duma of the new convocation, the powers of the State Duma of the previous convocation are terminated. However, the dissolution of the State Duma is a specific case of the termination of its powers as a constitutional and legal way to overcome the conflicts between the President and the State Duma, as well as between the State Duma and the Government, aiming to ensure the timely formation of the Government or the continuation of its functioning. 92

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For this reason, the Constitutional Court of the Russian Federation in the Judgement 1 of 11 November, 1999 on the case of the interpretation of Cl. «b» of Art. 84, P. 1, 2 and 4 of Art. 99 and P. 1 of Art. 109 of the Constitution of the Russian Federation stated the legal concept according to which the dissolution of the State Duma means the termination of the implementation of the State Duma the provided by the Constitution of the Russian Federation powers to make laws and other constitutional powers, which are realized through the adoption of decisions at the meetings of the Chamber from the starting date of the new elections. At the same time, based on the principle of the Constitution of the Russian Federation of the separation of powers, the other state bodies may not carry out the powers of the State Duma. The constitutional status of the Federal Assembly as a permanent body is provided by the duty of the President to appoint a date for the elections simultaneously with the dissolution of the State Duma (in the case provided in Art. 111 of the Constitution of the Russian Federation, also at the same time with the appointment of the Chairman of the Government), in order to guarantee State Duma formation not later than four months from the date of dissolution (P. 2, Art. 109 of the Constitution of the Russian Federation). Thus, the dissolution of the State Duma coincides with the appointment of the new elections, and all the election activities and the convocation of the re-elected State Duma of the first session shall be carried out in the specified in this constitutional norm term. In these purposes, the legislator has established the necessary additional requirements regarding the terms of the elections and the electoral procedures. Thus, the day of voting in this case is the last Sunday before the day of the expiration of three months from the date of the dissolution of the State Duma. If the President dissolving the State Duma does not appoint the election of the deputies of the State Duma of a new convocation, the Central Election Commission of the Russian Federation appoints the elections. The period for implementation of the election activities during the early elections of deputies of the State Duma is reduced by one-fourth (P. 4–6 Art. 6 of the Federal Law «On the Elections of the Deputies of the State Duma of the Federal Assembly of the Russian Federation»). All elections to the State Duma from 1993 to 2003 were carried out by a mixed model: –– 225 deputies were elected within single-mandate electoral districts (one district — one deputy) on the basis of a single representation quota to the single-mandate electoral district; 1



Collection of laws of the Russian Federation. 1999. No. 47. 5787 p. 93

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–– other 225 deputies were elected within the federal electoral district in proportion to the number of votes given for the federal lists of the candidates to the deputies nominated by the electoral associations (political parties, electoral blocks). In other words, half of the deputies were elected by a majority system of the relative majority and the other half — by a proportional system. In accordance with the Federal Law of May 18, 2005 No. 51-FZ «On the Elections of the Deputies of the State Duma of the Federal Assembly of the Russian Federation», the deputies of the State Duma are elected within the federal electoral district in proportion to the number of votes given for the federal lists of the candidates to deputies of the State Duma. A method of the deputies of the State Duma election is not specified by the Constitution of the Russian Federation, which allows the legislator to determine it independently1. Such is the case in many countries — Germany, Hungary, Italy and the others. In France, for example, the elections to the lower Chamber of the Parliament (the National Assembly) are held by the majority system of absolute majority in two rounds, to the Chamber of Commons of the Great Britain — by the majority system of the relative majority in a single round, and to the Chamber of deputies of Brazil — by the proportional electoral system. The transition from one electoral system to another is a common practice. The order of the formation of the Parliament in Italy, France, Japan and many other countries, is changed repeatedly. The proportional electoral system has its advantages. This system is fairer, although all the electoral models are not free from lacks. § 4. The internal arrangement of the Chambers of the Federal Assembly

The Federal Assembly consists of two chambers — the Council of Federation and the State Duma. The bicameralism is one of the trends of modern parliamentarism. The choice of such structure of the legislative and representative body may be due to a form of state structure traditions and other factors. In the literature, both advantages and disadvantages of such structure of the Parliament are noted 2. 1



2



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In the message to the Federal Assembly of December 12, 2012, the President of the Russian Federation suggested a return to a mixed system of the Deputy elections to the State Duma: on party lists and single-mandate electoral districts. Ref., for example: Mastlas J., Grange L. (eds). Les secondes chambres du parlement en Europe occidentale. Paris, 1987. 23 p.; N.P. Hureeva, V.I. Prokopov The Parliament of Japan // The Parliaments of the world. Moscow, 1991. 533 p.; I. Bentham The tactics of

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The supporters of the bicameral parliaments, as a rule, indicate that it provides a better representation, careful study of draft laws, and efficient deterrence of the executive power. The opponents argue that the bicameralism complicate the parliamentary procedures and especially the legislative process, initially it includes the elements of conflict, etc. Unlike former higher representative bodies of the Russian Federation — the Supreme Council, the Federal Assembly does not have common structural units to the Council of Federation and State Duma — the governing bodies. This is due to the division of the competence between the chambers, their independence in decision-making process on matters within their jurisdiction, which corresponds to the world traditions of parliamentarism. The internal organization of the Council of Federation The main structural elements of the Council of Federation include: –– the officials of the Chamber (the Chairman of the Council of Federation and his deputies, the Chairmen of the Committees of the Council of Federation and their deputies, the authorized representatives of the Council of Federation in the state bodies, and the members of the Council of Federation); –– the Council of the Chamber; –– the Committees of the Council of Federation; –– the temporarily functioning bodies (the working groups and conciliation commissions). The officials. The Council of Federation is headed by the Chairman, who is elected from among the members of the Council of Federation by secret voting by a majority of votes of all the members of the Chamber. The Chairman presents the candidacies for the office of the First deputy and the Deputy Chairman of the Council of Federation, the number of which is established by the Chamber. The regulation of the Chamber establishes that the President, the First Deputy and the Deputy Chairman of the Council of Federation cannot be the representatives of the one and the same region of the Russian Federation. The Council of Federation may elect the First deputy Chairman of the Council of Federation and the Deputy Chairman of the Council of Federation by a single voting list, presented by the Chairman of the Council of Federation. In a single voting list the candidacies for all or for the certain the legislatures // The anthology of the world political thought. Moscow, 1997. Vol. 1. 565 p.; Salikov M.S. The comparative federalism of the USA and Russia. Ekaterinburg, 1998; Fedosov P.A. The bicameral Parliaments: the European and domestic experience // Collection. 2001, 168–180 p.; Bulakov O.N., Ryazantsev I.N. The parliamentary law of Russia: lectures / Ed.-in-Chief O.N. Bulakov. Moscow, 2007, 16–17 p. 95

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vacant offices of the First Deputy Chairman of the Council of Federation, and the Deputy Chairman of the Council of Federation may be included. The Chairman of the Council of Federation, the First Deputy, Deputy Chairman of the Council of Federation are elected for a term of office as a member of the Council of Federation — the representative of the legislative (representative) and executive state authorities of the regions of the Russian Federation. The Chairman of the Council of Federation, the First Deputy and the Deputy Chairman of the Council of Federation may be dismissed from the office by the decision of the Council of Federation, adopted by the majority of votes of the total members of the Chamber. The issue on the dismissal of the Chairman of the Council of Federation, the First Deputy and the Deputy Chairman of the Council of Federation from the office is considered on admission of a personal declaration of data on the officials or at the proposal of a group of members of the Council of Federation of no less than one fifth of the members of the Council of Federation. The issue on the dismissal from office of the First Deputy Chairman, the Deputy Chairman of the Council of Federation is also considered at the request of the Chairman of the Council of Federation. The Constitution of the Russian Federation (P. 2, Art. 101) stipulates that the Chairman of the Council of Federation and his Deputy arrange the meetings and are in charge of the internal routine activity of the Chamber. Due to the fact that the Council of Federation is a collegial body and the said officials with the status of a member of the Council of Federation have the same scope of rights and responsibilities, they cannot adopt the decisions on issues within the competence of the Chamber, putting pressure on the members of the Council of Federation. However, the terms of reference of the Chairman of the Council of Federation are extensive. His duties can be divided into organizational and representational. The organizational powers include: –– the convening of meetings of the Council of Federation, including the extraordinary ones; –– the formation of the draft agenda of the meeting of the Council of Federation, introducing it for the consideration of the Council of the Chamber, submission to the Council of Federation of the considered by the Council of the Chamber draft agenda of the meeting of the Council of Federation; –– the arrangement of the meetings of the Chamber; –– the signing of the resolutions of the Council of Federation; –– the control of the internal regulations of the Chamber’s activities in accordance with the powers provided by the Regulation of the Council of Federation; 96

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–– the division of responsibilities between the First Deputy Chairman of the Council of Federation and the Deputy Chairman of the Council of Federation; –– the organizational works of the Council of the Chamber and the arranging of its meetings; –– the coordination of the work of the committees of the Council of Federation; –– the submission of the issues for the preliminary consideration to the committees of the Council of Federation in accordance with their jurisdiction of the approved by the State Duma draft laws of the Russian Federation on the amendments to the Constitution of the Russian Federation, the federal constitutional laws, adopted by the State Duma federal laws, as well as the draft laws, amendments to the draft laws, developed by the Committee of the Council of Federation which are supposed to be submitted to the State Duma in order to exercise the right of the legislative initiative of the Council of Federation; –– the submission of the documents and materials required for the public examination of draft laws of the Russian Federation on amendments to the Constitution of the Russian Federation, the draft federal constitutional laws and federal laws (with the exception of materials containing information constituting the state or other legally protected secrets) to the Public Chamber of the Russian Federation at its request; –– the publication of the notification for general information on the adopted laws of the Russian Federation on amendments to the Constitution of the Russian Federation; –– the submission of the adopted laws of the Russian Federation on amendments to the Constitution of the Russian Federation for the consideration to the legislative (representative) state bodies of the subjects of the Russian Federation; –– the submission of the adopted by the Council of Federation laws of the Russian Federation on amendments to the Constitution of the Russian Federation, the federal constitutional laws and federal laws to the President for signing and official publication; –– the submission of the rejected by the Council of Federation draft laws of the Russian Federation on amendments to the Constitution of the Russian Federation, the federal constitutional laws and federal laws to the State Duma; –– the submission of the legislative acts adopted by the Parliament of the Union State, the Inter-parliamentary Assembly of the Eurasian Economic Community, the model legislative acts adopted by the Inter-parliamentary Assembly of States — the members of the Commonwealth of Independent States to the Committees of the Council of Federation in ac97

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cordance with the issues within their jurisdiction, as well as to the Legal Department of the Legislative Machinery of the Council of Federation to prepare the proposals; –– the coordination of the organization of the parliamentary hearings, roundtables and other events held in the Council of Federation; –– the submission of the applications, letters and appeals of citizens received by the Council of Federation and concerning the activities of the members of the Council of Federation to the Committees of the Chamber; –– the implementation of the overall management of the Legislative Machinery of the Council of Federation and the monitoring of its activities; –– the approval of the structure of the Legislative Machinery of the Council of Federation by agreement with the Council of the Chamber; –– the approval of the regular staffing and the staffing list of the Legislative Machinery of the Council of Federation; –– the appointment the Head of the Legislative Machinery of the Council of Federation to the office and dismissal from the office with the consent of the Council of the Chamber, and the First Deputy (First Deputy), the Deputy Head and other officers of the Legislative Machinery of the Council of Federation in accordance with the Regulations on the Legislative Machinery of the Council of Federation on recommendation of the Head of the Legislative Machinery of the Council of Federation; –– the signing and submission the notions of awarding the members of the Council of Federation and the officers of the Legislative Machinery of the Council of Federation with state awards by the Council of the Chamber to the President; –– the signing and issuance of the invitations to the members of the Government and other parties for the participation at a meeting of the Council of Federation; –– the management of the planning of the Chamber’s activities; –– authorization of a power of attorney to the representative of the Council of Federation at the proceedings of the Constitutional Court of the Russian Federation; –– the appointment of the members of the Council of Federation as the plenipotentiary representatives of the Council of Federation at the State Duma, the Government, the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Accounts Chamber of the Russian Federation, the Prosecutor General’s Office of the Russian Federation, the Central Election Commission of the Russian Federation, the Ministry of Justice of the Russian Federation, the Public Chamber of the Russian Federation, the Inter-parliamentary Assembly of States — the members of the Commonwealth of Independent States, as well as the plenipotentiary representatives of the Council of Federation for 98

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cooperation with the High Commissioner for Human Rights in the Russian Federation and on cooperation with the High Commissioner of the Children’s Rights under the President of the Russian Federation and other state bodies; –– the approval of the instruction on record keeping in the Council of Federation; –– the issuance of the commissions to the Committees of the Council of Federation and the officials of the Council of Federation. The representational powers of the Chairman of the Council of Federation include: –– the presentation of the Chamber in relations with the federal public state power bodies, the public state power bodies of the regions of the Russian Federation, the local bodies, the public associations, as well as with the foreign parliaments, the international organizations, the statemen and publicmen of the foreign countries; –– the participation at the conciliation procedures arranged by the President in accordance with P. 1 Art. 85 of the Constitution of the Russian Federation to resolve disputes between the federal state bodies and the public state power bodies of the regions of the Russian Federation, as well as between the public state power bodies of the regions of the Russian Federation; –– binding the persons appointed to the offices of the judge of the Constitutional Court of the Russian Federation and the Prosecutor General of the Russian Federation by oath; –– signing the Certificate to the Badge of Honor of the Council of Federation «For Merits in Development of the Parliamentarism», the signing and awarding the Certificate of honor of the Council of Federation. The Chairman of the Chamber issues the orders and gives the instructions on issues within his competence, and the Council of Federation has the right to cancel any order of the Chairman, if it is on the contrary to the laws of the Russian Federation and the Regulation of the Chamber. The Chairman of the Council of Federation, or on his behalf the First Deputy Chairman of the Chamber presents the reports on the activities of the Chamber and the draft program of its legislative work to the Council of Federation. The Council of Federation may elect the Chairman of the Council of Federation, who terminated his powers on this office as the Honorary Chairman of the Council of Federation. The decision on the election of the Honorary Chairman of the Council of Federation is adopted by a majority of votes of all members of the Council of Federation, and this decision is issued by the Regulation of the Council of Federation. The rank of the Honorary Chairman of the Council of Federation is a lifelong. 99

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The special places in the boardroom of the Council of Federation and the operational premises in the building of the Council of Federation are assigned. For the Honorary Chairman of the Council of Federation and the Chairman of the Council of Federation of the first convocation they have the right: –– to participate in an advisory capacity at the meetings of the Council of Federation, the Committees of the Chamber and at the procedures of the parliamentary hearings, at the meetings of the round tables and other events held in the Council of Federation; –– to receive the documents and materials, and other information provided by the members of the Council of Federation at the meetings of the Chamber, the Committees of the Council of Federation, at the parliamentary hearings and other events. The First Deputy Chairman of the Council of Federation, in accordance with the Regulation of the Chamber and the distribution of duties between the First Deputy Chairman and the Deputy Chairman of the Council of Federation, established by the Chairman of the Council of Federation: –– substitutes the Chairman of the Council of Federation in his absence; –– on behalf of the Chairman of the Council of Federation presents the reports on the activities of the Chamber and the draft program of its legislative work to the Council of Federation; –– on behalf of the Chairman of the Council of Federation signs the regulations of the Chamber, issues orders, hands out a Badge of Honor of the Council of Federation «For Merits in Development of the Parliamentarism» and the Certificate of Honor of the Council of Federation; –– on behalf of the Chairman of the Council of Federation carries out other powers on the issues of the internal order of the Chamber’s activities. The Deputy of the Chairman of the Council of Federation substitutes the Chairman of the Council of Federation in his absence and in the absence of the First Deputy Chairman of the Council of Federation; on behalf of the Chairman of the Council of Federation has the right to sign the regulations of the Chamber, issue orders, hand out a Badge of Honor of the Council of Federation ≪For Merits in Development of the Parliamentarism≫ and the Certificate of Honor of the Council of Federation. On behalf of the Chairman of the Council of Federation, he can exercise other powers on the issues of the internal order of the Chamber’s activities. The Council of the Chamber consists of the Chairman of the Council of Federation, the First Deputy and the Deputy Chairman of the Council of Federation, the Chairmen of the Committees of the Council of Federation, who have a decisive vote on all issues considered by the Council of the Chamber. 100

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This collegial body is different from those that were in the Supreme Council. The Council of the Chamber does not preclude of the Chamber in the period between the sessions, but it is established for the preparation and consideration of the issues of the Council of Federation activities. The main functional tasks of the Council of the Chamber are: –– the approval of the schedule of the meetings of the Council of Federation at the spring and autumn sessions; –– the discussion on the extent of the preparation of issues to be submitted to the meeting of the Council of Federation; –– the consideration of a draft agenda of the meeting of the Council of Federation; –– the formation of a list of persons invited to a session of the Council of Federation; –– the approval of the regulations on activity of the plenipotentiary representatives of the Council of Federation by the presentation of the Chairman of the Council of Federation; –– making statements and appeals on the general political and socio-economic issues; –– the adoption of the decision on the parliamentary hearings; –– the consideration and approval of a plan of the inter-parliamentary cooperation of the Council of Federation, the staffs of the delegations of the Council of Federation sent abroad, the definition of the scope of the powers of the delegations of the Council of Federation, the costs of the business trips; –– the consent giving to the appointment of the Head of the Machinery of the Council of Federation to the office and dismissal from the office; –– the adoption of the decision on awarding with the Badge of Honor of the Council of Federation «For Merits in Development of the Parliamentarism» and the Certificate of Honor of the Council of Federation; –– the adoption of the decision on the submission the notions of awarding the members of the Council of Federation and the officers of the Machinery of the Council of Federation with the state awards to the President of the Russian Federation; –– the hearing of the information of the Committees of the Council of Federation, the officials of the Council of Federation on the implementation of the decisions of the Council of Federation; –– the harmonization of the Regulations of the provision the intergovernmental transfers for reimbursement of expenses related to the material support of activities of the members of the Council of Federation and their assistants in the regions of the Russian Federation from the federal budget to the budgets of the regions of the Russian Federation, and the Regulations of the provision from the federal budget for the state support of the mass media, established by the Council of Federation; 101

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–– the approval of the estimates of expenditures for the delegations receptions and of the cost expenditures for preparing and holding the events in the Council of Federation; –– the periodic hearing of the reports of the Head of the Machinery of the Council of Federation on the activity of the Machinery of the Council of Federation; –– the decision on the other issues in accordance with the Regulation of the Council of Federation. The meeting of the Council of the Chamber is held, usually on the day before the meeting of the Council of Federation. In the meetings of the Council of the Chamber shall be entitled to participate: –– the authorized representatives of the Council of Federation in the State Duma, in the Government, in the Constitutional Court of the Russian Federation, in the Supreme Court of the Russian Federation, in the Accounts Chamber of the Russian Federation, in the Prosecutor General’s Office of the Russian Federation, in the Central Election Commission of the Russian Federation, in the Ministry of Justice of the Russian Federation, in the Public Chamber of the Russian Federation, in the Inter-parliamentary Assembly of States — the members of the Commonwealth of Independent States, as well as the plenipotentiary representative of the Council of Federation for Cooperation with the High Commissioner for Human Rights in the Russian Federation; –– the member of the Council of Federation on behalf of the Committee of the Council of Federation or the Chairman of the Committee of the Council of Federation; –– the member of the Council of Federation — the author of the legislative initiative, considered at the meeting of the Chamber; –– the plenipotentiary representative of the State Duma in the Council of Federation; –– the plenipotentiary representative of the President of the Russian Federation in the Council of Federation; –– the plenipotentiary representative of the Government of the Russian Federation in the Council of Federation. The materials on the issues are to be submitted for the consideration by the Council of the Chamber to the members of the Council of the Chamber, as a rule, not later than 24 hours before the beginning of its meetings. The persons participating in the meetings of the Council of the Chamber and who are not the members of the Council of the Chamber, are entitled to ask questions, and by the decision of the Council of the Chamber they can be given the floor to speak. At the meeting of the Council of the Chamber, the members of the Council of Federation shall be entitled to be presented and to make suggestions on the draft agenda of the meeting of the Council of Federation. 102

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At the meeting of the Council of the Chamber, the Head of the Machinery of the Council of Federation, his Deputy, the Heads of the departments of the Legislative Machinery of the Council of Federation shall be entitled to be presented. The decisions of the Council of the Chamber are adopted by a majority of votes of all the members of the Council of Federation, and are issued in the form of the extracts from the minutes of the meeting of the Council of the Chamber, which is signed by the chair person, at the meeting of the Council of the Chamber (the Chairman of the Council of Federation or the first deputy or one of the Deputy Chairman of the Council of Federation). The members of the Council of Federation are informed about all the issues considered by the Council of the Chamber, and the decisions taken thereon. The Council of Federation has the right to cancel the decision of the Council of the Chamber. The Committees of the Council of Federation. The consideration by the Chamber of the issues on various subjects requires the specialization of the parliamentarians. The Committees are the traditional structural elements of the legislative bodies. The committees of the Council of Federation are the permanent bodies of the Chamber1. The Committees are established for the development of basic, conceptual proposals for the implementation of the constitutional powers of the Council of Federation, for the preliminary examination of the draft laws of the Russian Federation on the amendments to the Constitution of the Russian Federation approved by the State Duma and submitted to the Council of Federation, the federal constitutional laws adopted by the State Duma and submitted to the Council of Federation, as well as the other federal constitutional laws, and the federal laws issued within the jurisdiction of the Council of Federation stipulated in the Constitution of the Russian Federation. The powers of the committees can be divided into two groups. The first relates to the jurisdiction of the committees to issue the decisions, directly related to the legislative work such as: –– the development and preliminary consideration of the draft laws and amendments to them within its jurisdiction (including the order to implement the right of the legislative initiative of the Council of Federation), as well as the other draft legal acts and amendments thereto; 1



In the Council of Federation until 2011, together with the committees, the commissions of the Council of Federation were existed. The differences between the committees and permanent commissions were quite conventional. It may be noted, that the powers of the committees were, as a rule, of the subject nature, and the powers of the commissions — of the inter-subject and organizational one. 103

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–– the draft laws examination within its jurisdiction, as well as the examination of the federal constitutional laws, federal laws approved by the State Duma and submitted to the Council of Federation in order to identify their provisions, contributing to the creation of the conditions for corruption practices; –– the preparation of the proposals to the draft of the federal budget in accordance with the issues of its jurisdiction; –– the preparation of the opinions on the draft laws of the Russian Federation on the amendments to the Constitution of the Russian Federation, approved by the State Duma and submitted to the Council of Federation on the federal constitutional laws, approved by the State Duma and submitted to the Council of Federation; –– the preliminary consideration of the draft laws submitted to the State Duma; –– the preparation of a draft resolution of the Council of Federation on appeal to the Public Chamber of the Russian Federation for the public examination of draft federal constitutional laws and federal laws arrangement; –– under the agreement with the regions of the Russian Federation the preliminary review of the draft laws of the regions of the Russian Federation within the issues of the joint jurisdiction of the Russian Federation and the regions of the Russian Federation; –– the consideration of the federal and regional target programs on issues within its jurisdiction and their implementation; –– the participation in the international cooperation on issues within its jurisdiction; –– the consideration of the annual report of the High Commissioner for Human Rights in the Russian Federation and the preparation of the conclusion on it. The second group of the powers can be estimated as the organizational, such as: –– the participation in the international cooperation on issues within its jurisdiction; –– the organization and holding the parliamentary hearings, roundtables and other events on issues within its jurisdiction; –– the participation in the preparation and holding the «government hour» at the meeting of the Council of Federation. Each member of the Council of Federation, except the Chairman of the Council of Federation, shall be the member of one of the committees of the Council of Federation. A member of the Council of Federation may be a member of only one committee of the Chamber. The First Deputy and the Deputy Chairman of the Council of Federation may be the members of one of the committees of the Council of Federation. 104

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The membership in a Committee of the Council of Federation is approved by the Chamber by the majority of votes of all the members of the Council of Federation. In this case a Committee of the Chamber should consist not less than of 11 and not more than of 21 members of the Council of Federation. By the regulation of the Council of Federation, the decision on the approval of the personal staff of a Committee of the Chamber is issued. A Committee of the Council of Federation may form the Subcommittees on the basic directions of its activities. A member of a Committee of the Chamber has the right to be the member of any Subcommittees of this Committee. The Chairman of a Subcommittee, as a rule, is the Deputy Chairman of a Committee of the Chamber. The Chairman, the First Deputy Chairman, the Deputy Chairman of the Council of Federation, as a rule, are elected at the meeting of a Committee of the Chamber by a majority of votes of all the members of a Committee and approved by the Chamber by a majority of votes of all the members of the Council of Federation. This decision is issued by the resolution of the Council of Federation. However, the Council of Federation may elect these officials directly at the meeting of the Chamber in the framework of a single list. The Chairman of a Committee of the Council of Federation and his Deputy are elected for a term of office as the members of the Council of Federation. Thus, the Regulations of the Council of Federation (Art. 14) establishes the rule that the Chairman, First Deputy, Deputy Chairman of a Committee of the Council of Federation cannot be the representatives of one region of the Russian Federation. A Committee of the Council of Federation defines the number of the First Deputy and the Deputy Chairman of a Committee. However, their total number cannot be more than four. In the exceptional cases, the Chairman of the Council of Federation may decide to increase the number of the first Deputy and the Deputy Chairman of the Committee. A Committee of the Council of Federation has the right to dismiss the Chairman of a Committee from the office by a majority of votes of all the members of the Committee. The dismissal from office of such officials is approved by the Council of Federation by a majority of votes of the members of the Council of Federation and issued by the Resolution of the Chamber. In accordance with the Regulations of the Council of Federation, the Chamber forms the following committees: The Committee of the Council of Federation on the Constitutional Legislation and State Building; The Committee of the Council of Federation on the Federal Structure, Regional Policy, Local Self-Government and Northern Affairs; 105

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The Committee of the Council of Federation on the Defense and Security; The Committee of the Council of Federation on the International Affairs; The Committee of the Council of Federation on the Budget and Financial Markets; The Committee of the Council of Federation on the Economic Policy; The Committee of the Council of Federation on Agrarian and Food Policy and Environmental Management; The Committee of the Council of Federation on the Social Policy; The Committee of the Council of Federation on the Science, Education and Culture; The Committee of the Council of Federation on the Regulations and Organization of the Parliamentary Activity1. The main areas of activities of the Committees, the scope of their powers and work function procedure are set in the Regulations of the Council of Federation. The Committees of the Council of Federation have the equal rights and bear the equal responsibilities for the implementation of the constitutional powers of the Chamber. The Council of Federation may decide to reorganize or liquidate the certain committees or to form the new ones. The temporary commissions of the Council of Federation are the internal working functioning bodies of the Council of Federation. They are created to solve a specific problem and (or) for a specified period. The creation of the temporary commissions shall be agreed with the Committee of the Council of Federation, the powers of which include the jurisdiction of this temporary commission. The decision to create the temporary commission is issued by the resolution of the Council of Federation. It identifies the specific task for which the temporary commission of the Council of Federation, its powers, duration and membership are created. The membership of the temporary commission may include the Chairman 1



106

In 2011, a reform of the organizational structure of the Council of Federation to reduce the total number of the committees and commissions of the Council of Federation from 27 to 10 was held. Some pre-existing committees had a narrow scope of activities. For example, instead of the Committee on the Constitutional Legislation, Judicial and Legal Affairs, Civil Society Development (now — renamed the Committee on Constitutional Legislation and State Building) was the Committee on Constitutional Legislation, Committee on Judicial and Legal Affairs and the Commission on the Development of Civil Society; instead of the Committee on Budget and Financial Markets was the Budget Committee and Committee on Financial Markets and Currency Circulation. Separately functioned, for example, the Committee on Local Self-Government, the Committee on Industrial Policy, the Committee on Natural Resources and Environmental Protection.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

of the Council of Federation, the First Deputy, and the Deputy Chairman of the Council of Federation. The Council of Federation may decide to extend the term of the temporary commission or to terminate its activities. The legislative machineries of the committees of the Council of Federation ensure the operation of activity of the temporary commissions of the Council of Federation. Thus, the Temporary Commission for National Marine Policy was created by the resolution of the Council of Federation of February 25, 2005 No. 52-SF1. Its duration was defined in two years. This Commission was created to monitor the legislation in the field of maritime activities and preparation of legislative proposals aimed at improving the efficiency of the maritime activities on this basis. In the Council of Federation the temporary commissions on legislative provision of a market of affordable housing2, on preparation of legislative proposals on the issues of implementation of the capital functions3, etc. are also functioning. The temporary functioning bodies, in addition to the temporary commissions also include the working groups created by the Chairman of the Council of Federation, the Council of Chamber, and the committees on the specific issues, such as: preparation and holding the parliamentary hearings. The employees of the Council of Federation machinery, the representatives of other state bodies, public associations, academic institutions, as well as the scientists and other experts are also engaged for their working together with the members of the Council of Federation. The conciliation commissions may be created to overcome the existing collisions caused by the rejection of a draft law of the Russian Federation on the amendment to the Constitution of the Russian Federation, approved by the State Duma and rejected by the Council of Federation, the federal constitutional law, the federal law adopted by the State Duma, as on the initiative of the Council of Federation, supported by the State Duma, so on the initiative of the State Duma, supported by the Council of Federation. In the Council of Federation, on the contrary to the State Duma, the establishment of the formal factions, parliamentary associations are not permitted. This fact is explained by the purpose of the Chamber — to rep1 2 3



Collection of laws of the Russian Federation. 2005. No. 10. 788 p. Ref.: Resolution of the Council of Federation of July 7, 2004 No. 215-SF // Collection of Laws of the Russian Federation. 2004. No. 28. 2826 p. Ref.: Resolution of the Council of Federation of July 6, 2005 No. 226-SF // Collection of Laws of the Russian Federation. 2005. No. 28. 2828 p. 107

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resent the interests of the regions of the Russian Federation, and hence — by the non-party principle of its formation1. For the purpose of interaction with the regional (inter-regional) associations of the regions of the Russian Federation, with the parliamentary associations of the regions of the Russian Federation, with the associations and unions of the municipalities, the Chairman of the Council of Federation, the Council of Chamber may create the coordinating and advisory councils with the participation of the representatives of these associations and unions. Internal structure of the State Duma. The Council of the State Duma, factions, committees and commissions of the State Duma are collegial bodies. The officials in the State Duma are the Chairman of the State Duma and his deputies. The officials. The head of the Chamber is the Chairman of the State Duma. The State Duma elects the Deputy Chairman of the State Duma. The Chairman of the State Duma, his first deputy and deputies are elected from among the deputies of the State Duma by the secret voting using the bulletins. The State Duma may decide to hold an open vote. The candidates for the post of the Chairman of the Chamber and his deputies have the right to nominate the factions. A deputy is considered to be elected by the Chairman of the State Duma or his deputies, if more than half of the total number of deputies of the State Duma voted for him. The procedure for electing these officials is set in the Regulations of the State Duma. The State Duma adopts a decision on the number of Deputies Chairman of the State Duma2. The decision to dismiss the Chairman of the State Duma, the First Deputies Chairman of the State Duma and the Deputies Chairman of the 1



2



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Having existed within the Chamber from 2000 to 2002, the parliamentary group «Federation», which included more than half of all members of the Council of Federation, did not associate itself with any political party. Traditionally, the private replacing of the posts of the Chairman of the Chamber and his first deputy is largely predetermined by the factions (deputy associations) which obtained the greatest number of seats in the State Duma. As for the Deputies Chairman of the Chamber, their number for a long time traditionally corresponded to the number of deputy associations formed in the Duma, the representatives of which were replaced by these posts. The State Duma of the fifth and sixth convocation, elected on party basis, established the principle of the distribution of posts of Deputy Chairman of the Chamber in proportion to the number of mandates received by one faction or another. On September 1, 2012 the representatives of the faction «Edinaya Rossiya» took five posts of Deputy Chairman of the State Duma, including one of the First Deputy Chairman, of the Communist Party — a position of First Deputy Chairman, the Liberal Democratic Party and «Spravedlivaya Rossiya» — each one post of Deputy Chairman of the State Duma.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

State Duma from office is adopted by a majority of votes of all the deputies of the State Duma. The functions of the Chairman of the State Duma and the Chairman of the Council of Federation are similar and can be divided into organizational and representational. The powers to implement the organizational functions oblige the Chairman of the State Duma to: –– arrange the meetings of the Chamber; –– be in charge of its internal regulations; –– organize the work of the Council of the State Duma; –– carry out the general management of the State Duma; –– appoint and dismiss the Head of the Machinery of the State Duma, with the consent of the Council of the State Duma and by presentation of the State Duma Committee on Regulations and Organization of the State Duma, appoint and dismiss the Deputy Head of the State Duma Committee on recommendation of the Head of the State Duma; –– submit draft law and materials to it incoming to the State Duma to the factions and to the committee of the State Duma in accordance with the issues of its competence; –– entrust the Scientific Council on lawmaking to arrange examination of the draft law under consideration of the State Duma and to send a report on the results of the examination of the draft law to the Committee of the State Duma which is appointed to be responsible for this draft law; –– send the approved by the State Duma laws of the Russian Federation on amendments to the Constitution of the Russian Federation, federal constitutional laws and federal laws adopted by the State Duma to the Council of Federation for consideration and for approving; –– sign the decisions of the State Duma; –– send the adopted by the State Duma federal laws to the President of the Russian Federation; –– send draft government programs of Russia, including the federal target programs, and proposals for changes in government programs, including the federal target programs, whitch were received by the State Duma to the specialized committees and the Committee of the State Duma on Budget and Taxes for consideration; –– send draft guidelines for the budgetary policy of the Russian Federation, the draft guidelines for tax policy, the draft guidelines for the customs and tariff policy and the draft budget forecast (draft amendments to the budget forecast) for the long term which were received by the State Duma to the Committee of the State Duma on Budget and Taxes for consideration; –– send the information of the Government of the Russian Federation on the development and the anticipated timing of the regulations, the de109

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velopment and adoption of which are stipulated by the federal laws and received by the State Duma to the relevant committees; –– send the report of the Government of the Russian Federation on the results of work on the implementation of the agreements on the production sharing for the reporting period which were received by the State Duma to the Committee of the State Duma on Budget and Taxes; –– send the proposals of the Accounts Chamber of the Russian Federation on the suspension of all types of financial payment and settlement activities on the accounts of the audit (control) objects which were received by the State Duma to the Committee of the State Duma on Budget and Taxes; –– in the period between sessions of the State Duma to organize the work on the draft federal law on the federal budget for the next fiscal year and planning period and draft federal laws on budgets of state extra-budgetary funds of the Russian Federation for the next fiscal year and planning period; –– invite the federal minister (federal ministers) and other officials to answer the questions of the members of the State Duma. The Chairman of the State Duma has the right to speak on the issues related to his competence and issues related the jurisdiction of the State Duma by the Constitution of the Russian Federation, federal constitutional laws and federal laws at a meeting of the State Duma. The Chairman’s of the State Duma time to speak is up to 10 minutes. The Chairman of the State Duma has the right to solve issues of the expert, scientific, advisory and other support of the legislative activity of the State Duma. Within the framework of these powers and at his discretion the Chairman of the State Duma shall be entitled to include the issues on elections for the vacant post of the Deputy Chairman of the State Duma, on the vacant seats in the committees and commissions of the Chamber to the draft agenda of work of the State Duma. He is granted with the right to issue the decrees and orders on issues within his competence, but the State Duma has the right to cancel any order or decree of the Chairman of the State Duma. The Chairman of the State Duma, or on his behalf one of his deputies shall submit the reports on the activities of the Chamber of the latest session and on the draft model program of the legislative work of the State Duma for the next session to the State Duma. The representative powers allow the Chairman of the State Duma to represent the Chamber in its relations with the President, the Council of Federation, the Government, the regions of the Russian Federation, the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Prosecutor General of the Russian Federation, the 110

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Central Election Commission of the Russian Federation, the Central Bank of the Russian Federation, the High Commissioner for Human Rights in the Russian Federation, with the Accounts Chamber of the Russian Federation, public associations, other organizations and officials, as well as the parliaments of foreign countries, senior governing officials of foreign countries and international organizations. The Chairman of the State Duma is involved in the conciliation procedures used by the President of the Russian Federation according to P. 1 Art. 85 of the Constitution of the Russian Federation to resolve the disagreements between the state bodies of the Russian Federation and state bodies of the regions of the Russian Federation, as well as between the state bodies of the regions of the Russian Federation. The Deputies Chairman of the State Duma exercise the following powers: –– replace the Chairman of the State Duma during his absence; –– on his behalf hold the meetings of the Chamber; –– coordinate the activities of the committees and commissions of the State Duma; –– resolve other issues of the internal regulations of the Chamber, in accordance with the Regulations of the State Duma and the delimitation of responsibilities between the Deputies Chairman of the State Duma. The order on the allocation of the responsibilities between the Deputies of the Chairman of the State Duma is issued by the Chairman of the State Duma in coordination with the Council of the State Duma. Within their duties the Deputies Chairman of State Duma have the right to give instructions to the heads of the structural divisions of the State Duma. The Council of the State Duma, as well as the Council of the Council of Federation is a collective, permanent body of the Chamber, created for the preliminary preparation and consideration of issues of the Chamber. The Council of the State Duma consists of the Chairman of the State Duma, the First Deputies and Deputies Chairman of the State Duma, and the Heads of the factions all of them with the decisive vote right. If in the membership of the factions the inter-factional groups are created, the Council of the State Duma includes no more than two heads of the inter-factional groups (on behalf of the Head of the faction) each of them with the decisive vote right. The Chairmen of committees of the State Duma or on their behalf the representatives of the committees of the State Duma may participate in the work of the council of the State Duma with the advisory vote right1. 1



Until recently, the deciding vote in the Council of the State Duma had only the heads of parliamentary groups. The Chairman of the State Duma and his deputies took part in the work of the Council in an advisory capacity. Thus, the nature of this structural element 111

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The Chairman of the State Duma and his deputies while their absence at the meeting of the State Duma for a viable reason shall have the right to transfer their vote to another member of the Council of the State Duma. While the absence of the Head of the faction his deputy may participate at the meeting of the State Duma under his written instructions with a decisive vote right. The Chairman of the State Duma holds the meeting of the Council of the State Duma. The Chairman of the State Duma may entrust to hold the meeting of the Council of the State Duma to one of his deputies. The meeting of the Council of the State Duma shall be considered to be valid if the number of members presented at it, and those who have the decisive vote right, are more than half of the members of the Council of the State Duma. The decision of the Council of the State Duma is adopted by a majority of votes of the members of the State Duma presented at a meeting and the persons authorized to vote. If during the decision adoption process of the Council of the State Duma the votes are divided equally, the decision is considered to be voted for by the Chairman of the State Duma, or one of his deputies, who holds the meeting. The plenipotentiary representative of the President in the State Duma, the plenipotentiary representative of the Government in the State Duma, the legislative initiative entities may participate in the meetings of the Council of the State Duma, if at a meeting of the Council of the State Duma the issue on draft laws, submitted by these legislative initiative entities is heard. The deputy of the State Duma has the right to attend the meeting of the State Duma and make suggestions on the draft agenda of the State Duma. The powers of the Council of the State Duma includes: –– the formation of the draft model program of the legislative work of the State Duma at a regular session; –– the formation of the draft calendar of the hearings at the State Duma for the next month; –– the formation of the draft work agenda of the next session of the State Duma; –– the appointment of the extraordinary session of the chamber, and setting the date for its implementation on the proposal of the President, at of the Chamber was mentioned, although its purpose is purely organizational. However, given the party principle of forming the State Duma and the party distribution of leading posts in the State Duma, the political nature of the body is maintained. Moreover, participation in the work of this body with a decisive vote of the Chairman of the Chamber and his deputies eliminates the principle of parity in the activities of the State Duma. 112

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the request of the faction, supported by a group of no less than one-fifth of votes of the total number of deputies of the State Duma, or under the suggestion of the Chairman of the State Duma to hold such kind of session; –– the appointment of the relevant State Duma Committee responsible for the preparation of the draft law (or co-executor of the draft law), introduced to the State Duma by the legislative initiative entity for the consideration by the State Duma; –– the sending of the draft law and materials to it for the consideration to the Committee of the Chamber, to the factions, and if necessary, to the legislative initiative entities as well as to the Public Chamber with the term of preparation of reviews, suggestions and comments (amendments) to the draft law; –– the submission of the draft law and the materials to it prepared by the responsible committee of the Chamber to the State Duma to the President, to the legislative initiative entity submitted this draft law to the State Duma, to the Government, to the deputies of the State Duma for their consideration; –– the decision adoption on the holding of the parliamentary hearings; –– the decision adoption on awarding a medal of the State Duma «For Merits in Development of Parliamentarism», and Certificate of Merit of the State Duma; –– the approval of the plans of the International Relations of the State Duma with the parliaments of the other countries; –– the approval of the draft budget estimates of the State Duma for the current fiscal year; –– the consideration of the report of the Head of the Legislative Machinery of the State Duma on the implementation of the budget estimates of the State Duma for the last financial year; –– the organization of the preparatory work on the issue of the annual report of the Government’s activities for consideration by the State Duma; –– the decision adoption to invite the representatives of political parties, federal lists of which were not admitted to the distribution of seats at the session of the State Duma by the results of voting; –– the decision adoption on the formation of the factional working group; –– the solving of the other issues concerning the routine working schedule of the activity of the State Duma in accordance with the Regulations of the Chamber. The decisions of the Council of the State Duma are issued in the form of extracts from the minutes of the Council of the State Duma, which is signed by the Chairman of the meeting. The State Duma has the right to cancel the decision of the Council of the State Duma. 113

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The factions are the associations of the deputies of the State Duma elected in the federal lists of candidates who were admitted to the distribution of seats in the State Duma. The faction includes all the deputies of the State Duma, elected in the appropriate federal list of candidates1. Based on the principle of formation of the State Duma, the factions are formed for the joint activities of the members of one party and for the expression of a common position of this party on the issues under the State Duma consideration. The deputies are belonging to the factions, which were formed in accordance with the strict party discipline, which causes a higher level of their unity during the voting on a particular issue. The full name of a faction must match the name of the political party, specified in the charter of the political party. The faction elects the head and deputy (deputies) head of the faction from its membership. In accordance with the viewpoint of the faction, it can form a governing body (governing bodies). The inter-factional group may be created as a part of the faction of more than 100 deputies of the State Duma. The membership of the inter-factional group can not be less than 50 deputies of the State Duma. The head of an inter-factional group is the first deputy head of the faction. The activities of the faction are organized in accordance with the Federal Law «On the Status of a Member of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation», the Federal Law of July 11, 2001 No. 95-FZ «On Political Parties», the Regulations of the State Duma, the viewpoint of the faction. The faction takes a decision on being formed and on arranging its activities at the organizational meeting of the majority of the total number of deputies of the State Duma, elected by the respective party. The factions inform the Chairman of the State Duma, the Council of the State Duma, the Committee of the State Duma on Regulations and 1



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A mixed system of elections of deputies of the State Duma (the majoritarian and proportional basis) used in the formation of the Chamber from the second to the fourth convocation, and causes a form of deputy association as deputy group. Deputies of the State Duma, which were not included in any faction, have the right to form a parliamentary group. Although it should be noted that the strengthening of political parties and increase of their role in election campaigns and as a result in the activities of the State Duma, demanded the organization of other deputies in the union that can represent the interests of certain political forces, so the minimum number of the parliamentary group with 35 deputies in time was increased to 55. The State Duma deputies and created factional association («Delovaya Rossiya», «Tovaroproizvoditeli Rossii», «Yuristy Rossii», «Pravoporyadok», «Evropeysky Klub» and others). In contrast to the factions and deputy groups, such associations were informal and did not require registration. In this regard, the factional association had not the rights, which the deputy associations had.

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Organization of the State Duma, on the decisions regarding the arranging of its activities. A deputy of the State Duma has the right to be a member of only one faction. A deputy has the right to withdraw from the faction after the submission of a written statement of resignation from the faction to the Committee of the State Duma on Regulations and Organization of the State Duma. The day of the deputy resignation of the faction shall be the day of the registration of the statement of the deputy of the State Duma on the resignation from the faction in the Committee of the State Duma on Regulations and Organization. Party principle of formation of the State Duma excludes the possibility of staying the «non-party» deputies in the State Duma, as well as their transition to the other faction, so unlike the previous convocations of this Chamber of the Russian parliament, the deputy’s resignation from the faction entails the termination of his parliamentary powers. The regulation of the State Duma provides a wide range of powers of the factions, which can be divided into several groups: 1) the powers to form the governing bodies of the Chamber. The factions are entitled to nominate candidates for the post of Chairman of the State Duma and his deputies. On the presentation of the factions the Chairmen of the committees, commissions and their deputies are elected by the Chamber. In the committees and commissions the factions have the number of seats which is proportional to their representation. The Heads of the factions are included with a decisive vote right to the Council of the State Duma; 2) the powers to prepare and resolve the procedural issues. The factions can request an arrangement of an extraordinary session of the Chamber with the determination date of the meeting from the Council of the State Duma; and submit proposals to hold a closed meeting; 3) the powers in the legislative process. A group of deputies — the representatives of the factions can submit a draft law on any subject to the State Duma. In addition, a draft law and the materials that were submitted to the State Duma from the other legislative initiative entity shall be submitted to the faction on a mandatory basis. While considering a draft law at a meeting of the State Duma, the suggestions and comments of the factions are heard. Regulation stipulates that a draft law not adopted by the State Duma is not the subject to further consideration. However, in the exceptional cases, at the request of the factions that represent the majority of deputies of the State Duma, the Chairman shall put to a vote a question on the return of a draft law not adopted by the Chamber during the third reading to the second reading; 115

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4) the powers of the factions related to the solving of the issues that are within the competence of the State Duma in accordance with the Constitution of the Russian Federation. While discussing these issues, the pre-emptive right to speak belongs to the representatives of the factions. The membership of the special committee formed by the Chamber is to give an opinion on the proposal for impeachment in respect to the President, and it is formed on proportional representation of the factions. To implement their powers the factions use not only the speech and voting at the meetings of the State Duma, but also other forms of work: –– the submission of the applications and appeals to the deputies of the State Duma; –– the preparation and holding the parliamentary hearings, conferences, seminars, and round tables; –– the meetings of the leaders of factions with the President, Head of the Government, Heads of the Ministries and Departments; –– the organization and the invitation to the extended meetings with the representatives of the federal state bodies; –– the cooperation with the regions, which is effected by the meetings held with the participation of the representatives of the legislative bodies of regions of the Russian Federation, where the problems of these regions are discussed (also the departures of the deputies to the regions of the Russian Federation are used). The agreements on joint activities often become the result of this collaboration; –– the work with the voters — in the State Duma a reception of citizens is held, Determined the suggestions and complaints received from them are defined the deputies go to the regions by their factions for meetings with the voters, which inform the latter on their parliamentary activities, adopted laws, the faction activities, etc.; –– the communication support with the media — the arrangement of the press conferences of the heads and representatives of factions, meetings with the reporters, speaking to the press, on television and radio, in some cases holding of the working meetings of the factions with the representatives of the media. In addition, as a rule, each political party has its own printing body; –– the powers in strengthening the international relations — the exchange of parliamentary work experience with the foreign countries, meetings with parliamentary delegations, representatives of political parties and public organizations of other countries; joint seminars on parliamentary activities — the signing of the cooperation agreements. 116

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In accordance with P. 3 Art. 101 of the Constitution of the Russian Federation, the State Duma forms the committees and commissions of the State Duma from among its deputies. The committees and commissions are formed on the basis of proportional representation of the factions. Unlike the Regulations of the Council of Federation, which sets strict requirements for the numerical staff of the committees, the Regulation of the State Duma specifies that the number of members of these bodies may not be less than 12 and more than 35 members of the Chamber. The Chairmen of the committees, commissions and their deputies are elected by the Chamber in the manner prescribed by the Regulation of the State Duma, and based on the proposal of the factions. All the deputies of the State Duma, with the exception of the Chairman of the State Duma, have to be the members of one of the committee of the Chamber. At this, the deputy of the State Duma in the same way as a member of the Council of Federation may be a member of only one committee. The committees are formed depending on the fundamental issues of state and public life. According to the Regulation of the Chamber the following committees are usually formed in the State Duma: The Committee of the State Duma on Constitutional Legislation and State Building; The Committee of the State Duma on Civil, Criminal, Arbitration and Procedural Legislation; The Committee of the State Duma on Labour, Social Policy and Veterans Affairs; The Committee of the State Duma on Budget and Taxes; The Committee of the State Duma on Financial Market; The Committee of the State Duma on Economic Policy, Innovation and Entrepreneurship Development; The Committee of the State Duma on Property; The Committee of the State Duma on Industry; The Committee of the State Duma on Construction and Land Relations; The Committee of the State Duma on Science and High Technology; The Committee of the State Duma on Energy; The Committee of the State Duma on Transport; The Committee of the State Duma on Defense; The Committee of the State Duma on Security and Corruption Combating; The Committee of the State Duma on Foreign Affairs; The Committee of the State Duma on Commonwealth of Independent States Affairs, Eurasian Integration and Relations with Compatriots; The Committee of the State Duma on the Federal Structure and Local Self-Government; 117

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The Committee of the State Duma on Regional Policy and the North and the Far East Problems; The Committee of the State Duma on Regulations and Procedural Organization; The Committee of the State Duma on Health; The Committee of the State Duma on Education; The Committee of the State Duma on Family, Women and Children; The Committee of the State Duma on Agriculture; The Committee of the State Duma on Natural Resources, Environment and Ecology; The Committee of the State Duma on Culture; The Committee of the State Duma on Public Associations and Religious Organizations; The Committee of the State Duma on Nationalities; The Committee of the State Duma on Physical Culture, Sport and Youth Affairs; The Committee of the State Duma on Housing Policy and Housing and Communal Services; The Committee of the State Duma on Information Policy, Information Technology and Communications. The Regulation provides the possibility for the stopping and limitation of the formation of new committees. It might be so, if some issues can be solved in the existing committees at the same time the new ones can appear if the effort to overcome the problems in a particular area of social life is required. The decision on the establishment or liquidation of the Committee of the State Duma is issued by the Resolution of the Chamber. The Committees of the State Duma are formed for a term not exceeding the term of the State Duma of this convocation. The specific goals, aims objectives, powers of the committees are fixed in an appropriate provision on the Committee, which is approved by the decision of the Chamber. The following powers of the committees are directly related to the legislative activities of the Chamber: –– the preliminary consideration of the draft laws and preparing them for the State Duma consideration; –– the preparation of the opinions on the draft laws and the draft regulations submitted to the consideration of the Chamber; –– the provision of the opinions and suggestions on the relevant sections of the draft federal budget. The organizational powers of the Committees of the State Duma: –– the parliamentary hearings arrangement; –– the solving of the issues on internal activities of the committees; 118

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–– the preparation of the requests to the Constitutional Court of the Russian Federation in accordance with the decision of the Chamber and others. The Chairman of the Committee of the State Duma performs the functions similar to the functions of the Chairmen of the Committees of the Council of Federation, implementing mostly organizational (organization of the committee’s activities, arrangement of its meetings and convocation of the extraordinary meetings, management of the committee’s Legislative Machinery, etc.) and executive powers, representing the Committee in its relations with the legislative initiative entities, the relevant bodies of the parliaments of foreign countries, and others. If the issue on particular and separate problem has to be solved within the framework of the main areas of activity of the committee, it can create a special unit — the subcommittees. First of all and mainly the subcommittees work out the draft laws submitted by the Chairman of the Committee, and other documents and materials, consider them at their meetings and make proposals on the issues discussed at the meetings of the Committee. The State Duma deputy may be a member of only one subcommittee. A member of the subcommittee has the casting vote at the meeting of the subcommittee. The deputies that are not members of the subcommittee have the right to participate in the work of the subcommittee having an advisory capacity. The commissions are also the working bodies of the State Duma. In contrast to the Committees, the activities of the commissions are restricted withing the certain period or with a particular task, and they are formed in cases and under the order established by the Constitution of the Russian Federation, federal laws and the Regulation of the Chamber. Among the first is the special commission formed in accordance with P. 2 Art. 93 of the Constitution of the Russian Federation to give an opinion on the nomination of charges in respect to the President for his dismissal. The Regulation provides the formation of the following permanent commissions in the State Duma: The Commission of the State Duma on Parliamentary Ethics; The Commission of the State Duma on Control over truthfulness of data on income, property and property obligations, submitted by the deputies of the State Duma; The Accounts Commission of the State Duma. The State Duma also forms: The Commission of the State Duma on the legal support of the development of the organizations of the defense-industrial complex of the Russian Federation; 119

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The Commission of the State Duma on consideration of the federal budget costs and expenditures, aimed at ensuring the national defense, national security and law enforcement; The Commission of the State Duma on the construction of the Parliamentary Centre. At its first meeting for the purpose of organizational and technical support, the State Duma elects the special temporary commissions: accounts, on the control of the electronic voting system, on the Regulation of the State Duma. The goals, objectives, aims, powers, contained in the relevant provisions on the commissions, as well as their staff and duration of the working period are set in the regulations of the Chamber. The State Duma includes the working groups and conciliation commissions as the temporarily created bodies. The committees and commissions form the working groups in order to solve the specific issues usually for ensuring the formulation and concerted action for its solving. The main tasks of the working groups are the preparation of the materials and recommendations on the raised issues, participation in the legislative activities and development of the plans for the other legislative activities. The Regulation of the State Duma provides the formation of the temporary parliamentary working group on preparation of the first meeting of the State Duma of a new convocation. Such working group is formed not later than two weeks before the new convocation of the State Duma from among the deputies of the State Duma elected for a new term. The duties of such working group include the preparation of the drafts of relevant regulations of the State Duma, as well as other documents related to the beginning of the work of the State Duma of a new convocation. The conciliation commissions are created in cases stipulated by the Regulation to overcome the differences that might arise in the implementation of the State Duma’s powers in the legislative sphere. Regulation provides the establishment of a conciliation commission in case when the Council of Federation rejects a federal law adopted by the State Duma, as well as in the case of the rejection of the federal law by the President (conciliation commission in this case is appointed in a special way). The main task of these commissions is to develop the joint solution, reflecting the general consensual position of the parties. The factional working groups can also be formed for the preparation of coordinated proposals on improvement of the legislation, development of coordinated decisions on other matters within the jurisdiction of the State Duma, and with the consent of the relevant committees. 120

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The decision on the formation of factional working group is adopted by the Council of the State Duma. The inter-factional working groups shall not be entitled to exercise the powers set for the committees and commissions of the State Duma, they do not use the rights of the factions, committees and commissions of the State Duma. The activities of the inter-factional working group are carried out in accordance with the Regulation of the Chamber and the provision on the factional working group, which defines the purpose of its formation, objectives, duration, powers, and other matters relating to its activities. The decisions of the inter-factional working group for the committees and commissions of the State Duma have the recommendatory nature. § 5. The legal status of the legislative bodies of the subjects of the Russian Federation

In accordance with the Constitution of the Russian Federation, the system of state bodies of the regions of the Federation is determined by themselves in accordance with the principles of the constitutional system of the Russian Federation and the general principles of organization of representative and executive bodies established by the Federal Law of October 6, 1999 No. 184-FZ «On General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation» (Art. 77 P. 1). The activity of the state bodies of the regions of the Russian Federation is subject to such constitutional principles as the separation into legislative, executive and judicial powers in order to ensure a balance of powers and the exclusion of the concentration of all the powers or the greater part in the jurisdiction of one state bodies or one official; independent implementation of their powers by state bodies of the regions of the Russian Federation; delineation of powers between the state bodies of the Russian Federation and state bodies of the subjects of the Russian Federation. In addition to the Basic Law — Constitution of the Russian Federation the status of the parliaments of the regions of the Russian Federation is determined by the federal laws, the most fundamental of which is the Federal Law of October 6, 1999 No. 184-FZ «On General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation», by the constitutions, statutes and laws of the regions of the Russian Federation, by the regulations and other acts of the legislative bodies of the regions of the Russian Federation. 121

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The legal and political status of the legislative public state power bodies of the regions of the Russian Federation is largely due to the federal model of parliamentarism — presidentialism, realized at the level of the regions of the Federation by the specific relations between the representative bodies and senior government officials. Nevertheless, the analysis of the functions and powers of these bodies leads to the conclusion that they have the necessary competence peculiar to the parliaments 1. The legislative (representative) state body of the subject of the Russian Federation is determined by the Federal Law «On General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation» as a permanent supreme and sole legislative body of the region of the Russian Federation. Consequently, no other body of the state of the subject of the Federation can adopt the laws — legal acts, which have supreme legal force in relation to other regulatory legal acts of the Russian Federation. 1



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Most of the regions of the Russian Federation (mainly territory, regions, autonomous entities) did not appoint parliaments as their legislative bodies. The reason for this is not only the absence in the Russian Federation of the traditions of parliamentarism and sufficient awareness of the role of the legislature by deputies in the state and public life, but in the absence of a single point of view on this matter, and among scientists. Parliament is often appointed the only legislative and representative body of the whole country, or even just one of the chambers of the body — elected one (Ref.: Kozlova E.I., Kutafin O.E. Constitutional law of the Russian Federation. Moscow, 2002, 417 p.; Krylova N.S. British parliamentary // Essays on parliamentary law. Moscow, 1993. 3 p.; Uryas Yu.P. German parliamentary law // In the same, 135 p.; Hesse K. Basics of constitutional law of Germany. Moscow, 1981, 293 p.). Some authors believe that the Parliament can only be considered a body that has the following characteristics: 1) it is included in the system of separation of powers; 2) the legal status of a deputy is based on the open mandate; 3) the parliamentary activity is professional (Ref: Bogdanova N.A. To the question about the concept and models of national representation in the modern state // Problems of national representation in the Russian Federation. Moscow, 1998, 17 p.). The authors of the textbook have the opinion that the place occupied by the legislative bodies of the regions of the Russian Federation in the system of the separation of powers and the procedure for their formation and implementation of a number of functions make it possible to appoint them parliaments (Ref.: Avakyan S.A. The problems of national representation in the Russian Federation // Issues of national representation in the Russian Federation. Moscow, 1998, 10–11 p.; Kotelevskaya I.V. Modern Parliament // State and Law. 1997. No. 3. 8, 9 p.; Malyi A.F., Gmyrin M.A. Organization of the regional parliament. Arkhangelsk, 2001, 15 p.; Decision of the Constitutional Court of the Russian Federation of April 12, 2002 No. 9-P «On the case concerning the review on the constitutionality of the provisions of art. 13 and 14 of the Federal Law «On General Principles of Organization of Legislative (Representative) and Executive Bodies of the Regions of the Russian Federation» in connection with the complaint of a citizen Bykov A.P. and requests of the Supreme Court and the Legislative Assembly of the Krasnoyarsk Territory»).

Сhapter II. Parliament is the Supreme Representative and Legislative Body

This characteristic essentially defines the different attributes of the Parliament of the region of the Federation. As the supreme legislative body of the region of the Federation, it shall receive this power from the population of the region of the Federation, and thereby perform the representative function, reflecting the interests and will of the population in the adopted laws. In addition, the legislation is a constant function of the government, therefore, the parliament of the region of the Russian Federation is a permanent body (similar to the same characteristic of the Federal Assembly) and during the entire period of its work has the right to assemble and to take decisions on matters of the competence. The name of the legislative (representative) body of the region of the Russian Federation is established by its constitution (charter) taking into account the historical, national and other traditions. Thus, the title of the body cannot contain phrases that form the basis of the titles of the federal state bodies1. The names of the legislative bodies are various: –– for example, in the Republic of Adygeya, the Republic of Komi, the Republic of Tatarstan, the Udmurtian Republic, the Chuvash Republic the legislative body is titled as the State Council; –– in the Republic of Altai, the Republic of Bashkortostan, the Republic of Mari El, the Republic of Mordovia, the Republic of Sakha (Yakutia) — it is titled as the State Assembly 2; –– in the Republic of Buryatia and the Republic of Kalmykia — it is titled as the People’s Hural; –– in the Kabardino-Balkarian Republic, the Republic of North Ossetia — the Republic of Alania and the Chechen Republic — it is titled as the Parliament; –– in the Belgorod, Bryansk, Volgograd, Voronezh, Ivanovo, Kaliningrad, Magadan, Moscow, Murmansk, Saratov, Smolensk, Tyumen and other regions — it is titled as the regional Duma. –– in the Republic of Karelia, Trans-Baikal Territory, Kamchatka, Krasnodar regions, Vologda, Irkutsk, Kaluga, Leningrad, Nizhny Novgorod, Novosibirsk, Omsk, Orenburg and several other areas — it is titled as the Legislative Assembly. There are also such names as the Supreme Council (in the Republic of Khakassia), the People’s Assembly (in the Republic of Dagestan and the Republic of Ingushetia), the Duma (in Stavropol territory, Astrakhan region, the Khanty-Mansi Autonomous Area — Yugra), the Legislative Duma 1 2





This legal restriction entered into force in June 2011. Prior to that, for example, in Tomsk and Yaroslavl regions, Stavropol territory, the parliament was named as the State Duma. In some republics the name is used in parallel in another state language, such as El Kurultai in the Republic of Altai, Kurultai — in the Republic of Bashkortostan, Il Tumen — in the Republic of Sakha (Yakutia). 123

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(in Khabarovsk territory, Tomsk region), the Provincial Duma (in Samara region), the Regional Council of the Deputies (in Arkhangelsk, Pskov regions) and others. The membership, procedure of formation and term of office. The parliaments are the collegial bodies. They have powers only if a certain number of deputies were elected to them. The number of deputies of the legislative bodies of the region of the Russian Federation is stipulated in the constitution (charter) of the region of the Russian Federation, and is determined depending on the number of voters registered on the territory of this region. The number of the deputies shall be: a) not less than 15 and not more than 50 deputies — while the number of voters is less than 500,000 citizens; b) not less than 25 and not more than 70 deputies — while the number of voters is from 500,000 to 1,000,000 citizens; c) not less than 35 and not more than 90 deputies — while the number of voters is from 1,000,000 to 2,000,000 citizens; d) not less than 45 and not more than 110 deputies — while the number of voters is more than 2,000,000 citizens1. Thus, the Duma of the Khanty-Mansi Autonomous District consists of 35 deputies, the City Duma of Moscow consists of 45 deputies; the Supreme Council of the Republic of Khakassia, the Legislative Assembly of the Zabaikalie Territory, the Duma of Stavropol Territory, the Legislative Assembly of Nizhny Novgorod region include 50 deputies in its membership, the People’s Khural of the Republic of Buryatia consists of 66 deputies, the Legislative Assembly of the Novosibirsk region consists of 76 deputies, the State Council of the Republic of Tatarstan consists of 100 deputies, and the State Assembly — Kurultai of the Republic of Bashkortostan consists of 110 deputies. The number of the deputies working on a permanent basis is determined independently by the legislative body of the region of the Russian Federation. This is established by the law of the region of the Federation as a rule. 1



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The rule on determining the number of deputies, depending on the number of voters entered from August 1, 2011. Prior this the regions of the Federation were not restricted by any requirements. To address to the Federal Assembly of the Russian Federation, 2009, the Russian President proposed the introduction of a single criterion for determining the number of deputies of legislative bodies of the regions of the Russian Federation, noting that «it is completely arbitrary, which sometimes leads to difficult explained results. For example, the millions of of Moscovites are presented in the City Council by 35 people’s deputies, and in the People’s Khural of the Republic of Tyva (economic opportunities of which, unfortunately, a much more modest in comparison with Moscow, and the population is more than 30 times less) there are 162 deputies. It is necessary to provide a flexible procedure for the gradual alignment of these distortions. The representation should be more universal» (Rossiyskaya Gazeta. November 13, 2009).

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The number of such persons usually includes the Chairman of the Parliament, its deputies, the Chairmen of the committees and its deputies. For example, in the Republic of Ingushetia not more than 18 of 41 deputies of the National Assembly may work on a regular basis in the Legislative Duma of Khabarovsk Territory with a total numerical membership of the 36 deputies, only 15 deputies can carry out their work on a professional basis in the Legislative Duma of Tomsk region — not more than 15 percent of the established number of deputies of the legislative body (of 41 deputy) may work on a permanent professional basis. The Chairman of the Duma, the Deputy Chairmen of the Duma, as well as the heads of the permanent structural units of the Duma by the decision of the Duma work on a regular basis in the City Duma of Moscow. The legislation of the Yamal-Nenets district provides the deputies of the Legislative Assembly with the right to choose the form of their activities — on a permanent basis or on a non-professional basis. The Parliament is the elected body. Article 32 of the Constitution of the Russian Federation, Art. 4, 10 of the Federal Law «On General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation» and the provisions of the Federal Law «On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of the Citizens of the Russian Federation», determine that the formation of the parliaments of the regions of the Russian Federation shall be performed by the election of the deputies by the citizens of the Russian Federation residing in the territory of the Russian Federation, who have in accordance with federal law the active electoral right. The elections are held on the basis of universal, equal and direct electoral right by the secret voting. Thus, not less than one quarter of deputy mandates in the legislative public state body of the subjects of the Russian Federation or in one of its chambers is distributed among the list of candidates nominated by electoral associations, proportional to the number of votes received by each of the lists of candidates. This requirement does not apply to the election of deputies of legislative (representative) state bodies of the federal cities of Moscow and St. Petersburg1. The law of the region of the Russian Federation may provide the required minimum percentage of votes received by the list of candidates, but not more than 5 percent for admission to such distribution of deputy mandates. The minimum percentage of the votes should be established in such a way that 1



In Moscow, all deputies are elected in single-mandate districts, in St. Petersburg deputy mandates are distributed among the lists of candidates put forward by electoral associations, proportional to the number of votes received by each list of candidates. 125

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at least two lists of candidates that received together more than 50 per cent of votes are to be admitted for the distribution of deputy mandates1. If the barrage barrier established by the law exceeds 5 per cent, the transfer of deputy mandates to the lists of candidates, received less than the minimum percentage, but not less than 5 percent of the number of voters who took part in the vote, and not admitted to distribution of deputy mandates, shall be provided. In accordance with the law of the region of the Russian Federation, one deputy mandate («representative» mandate)2 is passed to each of such list of candidates. Term of office of the deputies of the legislative state body of the subject of the Russian Federation of one convocation is established by the constitution (charter) of the region of the Russian Federation and may not be less than two or more than five years. In the vast majority of the regions of the Federation a five-year term of office of the parliamentarians is established, at the same time, for example, in the Republic of Altai and Nenets Autonomous District, the term of office of deputies is four years. The Federal Law «On General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation» (Art. 9) provides the cases of early termination of powers of the legislative (representative) body of the region of the Federation: –– the adoption the decision on selfdissolution by the mentioned body in the manner prescribed by the constitution (charter) or by the law of the region of the Russian Federation; 1



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This provision did not apply in the election scheduled until July 14, 2003. The majority of the regions of the Federation established the 7-percent barrier and 5-percent barrier for the so-appointed representative mandate. The methods of formation of each chamber in the bicameral parliaments, as a rule, are different. For example, the election of deputies of the regional Duma of Legislative Assembly of Sverdlovsk region were carried out on the basis of proportional representation for general regional constituency comprising the territory of the Sverdlovsk region as a whole. And the election of deputies of the Representatives Assembly were carried out on the basis of the majoritarian system of relative majority in single-member constituencies formed in the region (art. 34 of the Charter of Sverdlovsk Region). Features in the process of formation of the chambers could make territorial representation of one of the chambers. Thus, in the Kabardino-Balkaria Republic the Council of the Republic consists of 36 deputies elected in single-mandate constituencies, roughly equal to the number of voters on the basis of direct suffrage by secret voting. The Council of Representatives consisted of 36 members representing the administrative-territorial units of the country (regions, the city of Nalchik and Prokhladny), elected by three-mandate constituencies through direct suffrage by secret voting. In the capital of the Republic of Kabardino-Balkaria the city of Nalchik for election to the Council of Representatives were formed two-mandate electoral districts (Art. 90 of the Constitution of the Republic of Kabardino-Balkaria).

Сhapter II. Parliament is the Supreme Representative and Legislative Body

–– the dissolution of the said body by the supreme official of the region of the Russian Federation (the head of the supreme executive body of public state power body of the region of the Russian Federation); –– the decision coming into force respectively of the Supreme Court, the Court of the republic, region, federal cities, autonomous region, autonomous region on the ineligibility of the deputies of the legislative (representative) state body of the region of the Russian Federation, including the resignation by the deputies; –– the dissolution of the said body by the President of the Russian Federation. The decision on dissolution is not associated by the legislator with any legal reasons. In fact, it is a decision at the discretion of deputies, which may be caused, for example, by the political crisis: the conflict with the executive power, the inability of the parliament to function properly because of the conflicts among the factions in the parliament, etc. The other cases are caused by the offenses and are the ground for constitutional legal responsibility, assuming compliance mechanism for its implementation. The supreme official of the region of the Russian Federation has the right to terminate the powers of the legislative body beforehand: a) in the case when this body adopts the constitution (charter) and law of the region of the Russian Federation, other normative legal act which are contrary to the Constitution of the Russian Federation, federal laws, constitutions (charters) of the regions of the Russian Federation, if such contradictions are ascertained by the appropriate court and the legislative (representative) body of the subject of the Russian Federation has not removed them within six months from the date of coming the judgment into force; b) if by the decision of the appropriate court entered into force was stated that legislative body elected or re-elected eligibly had no meetings continually for three months. The supreme official of the region of the Russian Federation has the right to take a decision on the early termination of powers of the legislative body of the subject of the Russian Federation within three months from the date of coming the decision of the relevant court into force. The powers of the legislative (representative) body of the region of the Russian Federation shall be terminated from the date of the presidential decree on the dissolution of the legislative (representative) body of the subject of the Russian Federation coming into force and in the case if within three months from the date of warning the legislative body by the President of the Russian Federation, this body within its authority does not adopt measures for the execution of court decisions, and as a result 127

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obstacles are created for the implementation of the powers of the federal state bodies, local authorities enshrined by the Constitution of the Russian Federation, federal laws, and also the rights and freedoms of man and citizen, rights and lawful interests of legal entities, which are violated due to that. The period during which the President of the Russian Federation has the right to issue a warning to the legislative body of the subject of the Russian Federation or to adopt the decision on the dissolution of the said body may not exceed one year from the date of the court decision coming into force1. In case of early termination of the powers of the legislative body of the region of the Russian Federation in accordance with federal law, the constitution (charter) and (or) the law of the region of the Russian Federation a special elections, which shall be held not later than six months from the date of early termination of the powers are appointed. The competence of the legislative (representative) bodies of regions of the Russian Federation. Based on the principle of separation of powers established by the Constitution of the Russian Federation (Art. 10) and the delimitation of competence and powers between the state bodies of the Russian Federation and state bodies of the regions of the Russian Federation established by the Constitution of the Russian Federation (P. 3 of Art. 5, Art. 10, P. 3 of Art. 11 Art. 72, 76), the Federal Law «On General Principles of Organization of Legislative (Representative) and Executive State Bodies of the 1



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Until December 2004 the dissolution of the legislative body of the region of the Russian Federation was possible only through the adoption of a federal law, the draft of which at the presence of justifications the President of the Russian Federation may submit to the State Duma. This mechanism has not been used even once, therefore, it is difficult to assess its efficacy. At the same time, the literature indicates that the dissolution of the state body under the decision of only the President undermines the effect of the constitutional principle of separation of powers in the Russian Federation, as the President is entitled to interfere in the activities of the legislative body, acting in the role of ultimate constitutional responsibility Ref.: Kondrashov A.A. Constitutional responsibility in the Russian Federation. Moscow, 2006, 204, 239–240 p.). Also it is indicated that the dissolution of the representative body of state power of the region of the Russian Federation by the federal law more in line with the value of this body, which is the highest representation in the territory of the Federation (Ref.: Dzidzoev R.M. Some questions of the federal responsibility of the regions of the Russian Federation // Constitutional and municipal law. 2006. No. 11. 10 p.). However, it should be noted that for the dissolution of the legislative body of the Russian Federation, preceded by a judicial decision, indicating the illegal actions of the parliament of the Russian Federation. President essentially provides a judicial decision on the legislative body, which is within the allotted period has not taken steps to implement it and thus confirmed the failure to comply with this part of the deputy constitutional and legal characteristics of the highest representative body of the subjects of the Russian Federation.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

Regions of the Russian Federation» establishes only basic powers, which must implement the legislative (representative) state bodies of the regions. However, this Federal Law does not contain an exhaustive list of the powers and it especially provides that the law of the region of the Russian Federation regulates the other issues relating to its jurisdiction and powers in compliance with the Constitution of the Russian Federation, federal laws, the constitution (charter) and laws of the region of the Russian Federation1. Following the legal concepts of the Constitutional Court of the Russian Federation, it should be noted that the adoption their own normative legal acts regulating the issues of the system of state bodies by the regions of the Russian Federation, should proceed from the need to follow the federal arrangement, the relationship of legislative and executive bodies, which are obliged to ensure the stability of the structure and activity of the system of state bodies in the Russian Federation as a whole and at the same time to ensure the adherence to the principle of separation of powers. The deviations from the general scheme may exist but in a way when such deviations should be consistent with the principles of federalism and autonomy of state bodies of the regions of the Russian Federation and they are possible only in certain limitations defined by the legislation. The powers of the parliaments of the regions of the Russian Federation correspond the powers typical to the supreme representative state bodies and divided into legislative, supervisory and the others. The legislative powers of the parliaments include: 1) the adoption of the constitutions (charters) of the regions of the Russian Federation and amendments thereto; 2) the implementation of the legal regulation of issues within the jurisdiction of the regions of the Russian Federation and the joint jurisdiction of the Russian Federation and the regions of the Federation within the powers of the latter, including: –– the affirmation of the budget of the region of the Russian Federation and the report on its implementation; –– the establishment of the procedure for elections to local state bodies on the territory of the region of the Russian Federation; –– the establishment of the procedure for the elections holding to the legislative body of the region of the Russian Federation, the procedure of the elections or the procedure of the designation of the chief official of the Russian Federation (head of the supreme executive body of the region of the Russian Federation) by the deputies of the legislative body of the region of the Russian Federation and the order of revocation of chief official of the region of the Russian Federation (head of the supreme executive body of the subject of the Russian Federation); 1



Ref.: Determination of the Constitutional Court of June 8, 2000 No. 91-O. 129

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–– the procedures for the appointment and arrangement of the referendum of the region of the Russian Federation; –– the affirmation of programs for social-economic development of the region of the Russian Federation; –– the establishment of taxes and duties within the jurisdiction of the regions of the Russian Federation, as well as the order of collecting them; –– the affirmation of the budgets of territorial state extra-budgetary funds of the region of the Russian Federation and their performance reports; –– the establishment of the procedures for possession, managing and disposition of property of the region of the Russian Federation; –– the affirmation of the conclusion and termination of the agreements of the region of the Russian Federation; –– the establishment of administrative-territorial structure of the region of the Russian Federation and the procedure of its changing; –– the affirmation of the system of the executive bodies of the subject of the Russian Federation. The control function plays an important role among the powers of the representative bodies of the regions of the Russian Federation. Some basic laws of the regions of the Russian Federation even define the parliaments of the regions of the Russian Federation not only as the representative and legislative, but also as control bodies (the State Assembly-Il Tumen — of the Republic of Sakha (Yakutia), the State Council of the Republic of Udmurtia). The control powers of the parliaments of the regions of the Russian Federation include: –– the control over observance and execution of laws of the region of the Russian Federation; –– the control over execution of the budget of the region of the Russian Federation, including the affirmation of the report on its performance; –– the hearing of annual reports of the head official of the region of the Russian Federation on the results of activities, including the questions put by the legislative body 1; –– the control over compliance with the established order of disposition of property of the region of the Russian Federation;

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Duty of the executive power to report on certain issues before the representative power stems from the nature of executive power to obey the law, but it is unacceptable to assume an unlimited expansion of the powers of the legislative body of the Federation, as it leads to the loss of independence of the executive power and is not in compliance with the principle of separation of powers (Ref.: Decision of the Constitutional Court of the Russian Federation of December 10, 1997 No. 19-P «On the Case on the Constitutionality of Certain Provisions of the Charter (Basic Law) of the Tambov Region»).

Сhapter II. Parliament is the Supreme Representative and Legislative Body

–– the adjudication of no confidence (trust) upon the chief official of the region of the Russian Federation (the head of the supreme executive body of the subjects of the Russian Federation), as well as decisions of no confidence (trust) if the heads of executive bodies of the region of the Russian Federation if the legislative body took part in appointing them to the post. The forms of control are various and largely depend upon the competence of the legislative body 1. The powers of the legislative bodies of the regions of the Russian Federation include solving the personnel staff issues: –– the appointment and dismissal of some officials from the office both of the region of the Russian Federation, and of the Russian Federation, as well as registration of the consent to their appointment, if such a procedure of appointment is provided for by the Constitution of the Russian Federation, federal laws, the constitution (charter) of a region of the Russian Federation; –– the appointment of judges of constitutional (charter) courts of the regions of the Russian Federation. The election of the members of the Council of Federation, the representatives of the regions of the Russian Federation from legislative (representative) bodies by the parliaments of the regions of the Russian Federation is provided by the Federal Law «On the Procedure of Forming the Council of Federation of the Federal Assembly of the Russian Federation». The Federal Law of March 14, 2002 No. 30-FZ «On the Judicial Community Bodies in the Russian Federation», provides that the legislative (representative) body of the Russian Federation shall appoint the representatives of the public in the Qualification Collegium of Judges of the region of the Russian Federation under the procedure established by laws and other regulation acts of the region of the Russian Federation. The Federal Law of December 17, 1998 No. 188-FZ «On Magistrature in the Russian Federation» provides the right of legislative bodies of the regions of the Federation to appoint (elect) the magistrates, if the law of the region of the Russian Federation does not provide their election by the population of the respective judicial district2. The basic laws of the regions of the Federation also provide the right of the parliaments for coordination and adjustment the appointment of the heads of the higher executive authorities of the regions of the Federation, the heads of the significant executive bodies (usually in the field of economics and finance, industry, agriculture), the appointment of half of the members of the election commission of the region of the Russian Federa1



2

Ref. for details Ch. VII. In any of the region of the Federation, the procedure of the direct election of the magistrates by the population was not fixed in the regulations. 131

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tion, heads and auditors of control and audit bodies, high commissioners for human rights. The Constitutional Court of the Russian Federation confirmed the right of the legislative body of the region of the Federation to take part in the formation of the executive body in order to maintain a system of checks and balances. At the same time, the Court noted that the power of the representative body of the region of the Russian Federation to adjust the decision of the dismissal of officers of the executive bodies deprives the independence of the executive body in its actions that does not comply with the principle of separation of powers and constitutional provisions1. The Constitution (charter), the law of the region of the Russian Federation may provide that the chief official of the region of the Russian Federation (the head of the supreme executive body of the subject of the Russian Federation) is elected by the deputies of the legislative (representative) body of state power of the Russian Federation. The President of the Russian Federation submits the candidates for the post of the head official of the region of the Russian Federation. The proposals on the candidates are submitted to the President by the political parties, the lists of candidates of which were admitted to the distribution of the deputy mandates in the functioning legislative body of the region of the Russian Federation, and the priposals on the candidates for the post of the supreme official of the autonomous area, which is part of the region are submitted by the chief official of the area. The proposals on the candidates for this post may also be submitted to the President of the Russian Federation by the political parties (regional branches of political parties — on the nominations for the post of the chief official of the autonomous region), the federal lists of candidates of which on the basis of the officially published results of the closest preceding elections of the deputies of the State Duma of the Federal Assembly of the Russian Federation are admitted to the distribution of the deputy mandates2. 1



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Ref.: The Regulation of the Constitutional Court of the Russian Federation of February 1, 1996 No. 3-P «On the Case on the Constitutionality of Certain Provisions of the Charter — the Basic Law of the Chita Region». The election of the supreme officials of the regions of the Russian Federation by the parliaments of the regions was acted from 2004 to 2012 and was recognized by the Constitutional Court as not contrary to the Constitution of the Russian Federation (Ref. The Constitutional Court of the Russian Federation of December 21, 2005 No. 13-P). In 2012, to the direct election of heads of the regions of the Russian Federation was acted again. However, in a number of the regions of the Federation such elections can lead to conflicts (especially on ethnic basis) without taking into account regional peculiarities, so in 2013, the federal legislator established the possibility of the Federation to determine the form of empowering senior official of the region — through direct elections or election by the deputies of the parliament of the region of the Russian Federation.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

In addition to the above, the legislative bodies exercise other powers assigned to their competence by the federal laws, constitutions (charters) and laws of the regions of the Russian Federation. For example, the State Assembly of the Republic of Mari El has the power to interpret the republican laws, and the State Assembly of the Republic of Mordovia and the Altai regional Legislative Assembly may also interpret the Basic Law of the region of the Federation. The internal organization of the legislative (representative) bodies of the regions of the Russian Federation. The Federal Law «On the General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation», admits a bicameral structure of regional parliaments similar to the model of the Federal Assembly. However, this practice of the organization of legislative bodies of the regions of the Russian Federation is not widely used, and currently the parliaments of the regions of the Federation are unicameral. Until 2012, in different periods only six regions of the Russian Federation had bicameral structure of their representative bodies: the State Council — Khasa — the Republic of Adygea consisted of the Council of Representatives and the Council of the Republic; the State Assembly — Kurultai of the Republic of Bashkortostan — of the Chamber of Representatives and the Legislative Chamber; the Parliament of the Kabardino-Balkar Republic — of the Council of the Republic and the Council of Representatives; the Supreme Khural of the Tyva Republic — of the Chamber of Representatives and the Legislative Chamber; the State Assembly — Il Tumen — the Republic of Sakha (Yakutia) — of the Camber of Representatives and the Chamber of the Republic and the Legislative Assembly of Sverdlovsk region — of the regional Duma and the Chamber of Representatives. The reasons for the creation the bicameral parliaments in a number of the regions of the Russian Federation are different. Firstly, the commitment of the regions of the Russian Federation to follow the federal scheme of the organization of the legislative body can be seen. Secondly, in some regions of the Russian Federation at the formation of one of the Chambers of the Parliament on the basis of territorial representation (from among the representatives of the administrative-territorial units or municipalities) the need to incorporate the interests of the territories in its work was pursued1. 1



The literature suggested that bicameralism can be used in the former regions of the Federation, that now passed the enlargement procedure, to take into account interests of the population combined with the edges areas of autonomous areas (Ref.: O.M. Medvetsky. Bicameral parliaments of Russia: Modernity and Prospects // Legislation and economy. 2005. No. 12; O.N. Bulakov. Bicameral structure of parliament (legislative practice and problems) // Constitutional and Municipal Law. 2006. No. 9). 133

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Finally, by the complicating the legislative process, the aim of the implementation and adoption the laws of the higher quality was made1. In case of selection the bicameral structure of the legislative body based on territorial representation the registered in the parliament, the powers of the chambers should be balanced. The decisions of the Chamber the deputies of which are elected in the electoral districts with approximately equal numbers of voters and directly represent the interests of the population shall not be blocked by the chamber formed without providing the equal representation, namely, under the conditions that reflect the specificity of territorial structure and organization of state power in the subject of the Russian Federation. Other, as pointed out by the Constitutional Court of the Russian Federation, would be inconsistent to the priority of the people proposing just its equal representation in the legislative (representative) state bodies enshrined in Art. 3 of the Constitution of the Russian Federation2. In the structure of the legislative bodies of the regions of the Russian Federation, as well as of the chambers of the Federal Assembly: –– the officials; –– the organizational collegiate body; –– the permanent and temporary working bodies are distinguished. The officials are the Chairman of the legislative body of the region of the Russian Federation and his deputies 3. The Chairman of the legislative body and his deputies are elected from among the deputies usually at the first meeting of the newly elected legislative body. The deputies have the right to nominate candidates, groups of deputies, factions, deputy associations. Self-nomination is also possible. 1



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Ref.: V.I. Vasiliev, A.V. Pavlushkin, A.E. Postnikov. The legislative bodies of the regions of the Russian Federation: Legal questions of formation, competence and organization of work. Moscow, 2001, 140–141 p.; A.S. Avtonomov, A.A. Zakharov, E.M. Orlova. Regional parliaments in modern Russia. Moscow, 2000, 30–31 p. Ref.: The Judgement of the Constitutional Court of June 10, 1998 No. 17-P on the case on the constitutionality of the provisions of Cl. 6, Art. 4 Sub-cl. «a» Cl. 3 and Cl. 4 of Art. 13, Cl. 3 of Art. 19 and Cl. 2, Art. 58 of the Federal Law «On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of the Citizens of the Russian Federation». In the bicameral parliament the Chairman and his deputies were in each of the chambers, in addition, the post of Chairman of the legislative body could be provided in all. In particular, the Constitution of the Republic of Bashkortostan (Art. 78) provides for the election of such an official as Chairman of the National Assembly of the Republic of Bashkortostan, who leads the meeting of the National Assembly and is responsible for its internal regulations. In addition, each of the chambers of the National Assembly of the Republic shall also elect the Chairmen and their deputies from among its deputies. The Chairmen of the Chamber are Deputy Chairmen of the National Assembly.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The candidate who received more than half votes of the deputies is deemed to be elected. The voting is arranged in two rounds, if the results of the vote did not allow electing a Chairman in the first round. As a rule, the Chairman of the parliament and his deputies work on a permanent basis, and the chairman is elected to the post for the whole term of this body. The Charter of the Tambov region contained a provision according to which the Chairman of the Regional Duma had the right to exercise his powers, not only in the period for which Regional Duma was elected, but also during an uncertain period beyond that — before the election of the Chairman of the regional Duma of a new convocation. The Constitutional Court of the Russian Federation regarded such an extension of the duties as unwarranted extension of parliamentary powers, which is a violation of the framework of the law of the legislative body, which is associated with the loss of the right to represent the people, and therefore the considered to be contrary to the principle of democracy and the right of the citizens of the Russian Federation to participate in managing the state affairs through their representatives1. The Chairmen of the legislative bodies perform a variety of organizational functions, including convening sessions and meetings of legislative bodies; guiding the preparation for the meetings of legislative bodies, in some cases, also constituting the agenda of meetings; leading meetings of the Parliament; charging the internal routine at meetings; ensuring compliance with the regulations; signing the decisions and other acts of the legislative body; performing other functions. The Deputy Chairmen of the legislative body, as a rule perform the assigned to the Chairman functional duties in the event of his absence or inability to perform his duties. The Chairmen of the legislative bodies of the regions of the Russian Federation also carry out the representative functions in relations with the other bodies of state power of the region of the Russian Federation and the Russian Federation, as well as in the inter-parliamentary cooperation. In the parliaments of the regions of the Federation various collegiate bodies carrying out organizational and coordination functions may be formed: the organization of sessions and meetings of the legislative bodies (drafting legislative and regulating activities programs of the Parliament, the agenda of meetings); coordination of the activities of committees and commissions; solving issues of information, documentation, logistical support of the 1



Ref.: The Resolution of the Constitutional Court of the Russian Federation of December 10, 1997 No. 19-P «On the Case on the Constitutionality of Certain Provisions of the Charter (Basic Law) of the Tambov Region». 135

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activities of the legislative bodies of the regions of the Russian Federation and others1. These bodies are, for example, the Presidiums (the State Assembly — Kurultai — of the Republic of Bashkortostan, the People’s Assembly of the Republic of Dagestan, the State Council of the Republic of Tatarstan, the Legislative Assembly of the Novosibirsk region), the Councils (the State Assembly of the Republic of Mordovia, the Samara Regional Duma, the Duma of the Khanty-Mansi Autonomous Area), the Chamber of legislative proposals (the Assembly of Deputies of the Nenets Autonomous Area). Such collegiate structures are not formed in the legislative bodies of all the regions of the Russian Federation. These bodies, as a rule, consist of the Chairman of the legislative body, his deputies and other persons elected from among the deputies. The world practice knows examples when in the parliaments the bodies that replace them are created. However, by their structure, they as a rule represent the «parliaments in miniature»2. Hardly any of the staffs of advisory, coordinative and other working bodies of regional parliaments meet the principle of popular representation to exercise the powers of the parliament 3. Setting up the committees and commissions for preliminary consideration and preparation of matters relating to the arrangement of the legislative body of the region of the Russian Federation; arrangement of the legislative work; facilitation of the Russian Federation legislation observation and following, the observation and following the legislation of the regions of and other decisions made by the legislative body, as well as for the control over the activities of the executive power of the region of the Russian Federation, enterprises, organizations and institutions within their jurisdiction is very typical for the parliamentary activities. 1



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At the same time, in some legislative bodies of the regions of the Russian Federation the collegiate bodies endowed with not only the organizational powers. For example, the Presidium of the State Council of the Republic of Tatarstan to in order promote deputies in exercising their powers monitors the timely consideration and implementation of the state bodies and public associations, officials the proposals and comments made at the meetings of the State Council, implementation of the decisions taken at the request of the deputies. Chirkin V.E. New parliamentarism mini-parliaments // Social studies and the present. 2002. № 3. P. 68–74. Collegiate bodies at the level of parliament were also formed in a bicameral parliament. In the Parliament of the Republic of Kabardino-Balkaria the Coordinating Council was that one. The Coordinating Council consisted of officio President of the Chamber of deputies, the co-chairs of the Committee on Inter-Ethnic Relations, the chairs of the standing committees of the chambers. Chairmen of Chambers alternately or their deputies Presides over a meeting of the Coordination Council.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

The number and names of the committees (commissions) are determined by the decision of the legislative body. For example, in accordance with the regulations of the Legislative Assembly of St. Petersburg of April 14, 1999 No. 78 «On the Structure of the Legislative Assembly of St. Petersburg» two committees — Budget and Finance and on the legislation; seven permanent commissions — on urban affairs, urban planning and land affairs; on industry, economics and property; on social policy and health; on ecology and nature; on education, culture and science; on issues of law and order; on the structure of state power, local self-government and administrative-territorial unit; six specialized commissions as part of the permanent committees — on the veterans affairs; on the transport sector; on the tourist industry; on physical culture and sports; on science and higher education; on the environmental protection of the population of St. Petersburg were formed in the assembly. At the same time, the specialized commissions are not the bodies of the Assembly, their function is a preliminary review of matters relating to the competence of the relevant permanent commission. The specialized commissions are established and liquidated by the decisions of the permanent commissions, approved by the Assembly. The staff of the committee (commissions) is formed for the functional tasks based on voluntary participation of the deputies. A deputy may be a member of not more than two committees (commissions), but there is the duty of the deputies to enter one of the committees of the legislative body. An exception exists only for the Chairmen of the legislative bodies and their deputies. Thus, the formation of the permanent commissions in the Legislative Assembly of St. Petersburg is performed by the self recording, with the following restrictions: the commission may not include less than 5 and more than 10 deputies; if the number of the deputies wishing to work in the commission exceeds the set number, the members of this commission are selected on a competitive basis. Initially the permanent commissions, which delegate the deputies in accordance with the norms of representation (of two deputies from the Commission) to the committees, are completed. The main form of work of the committees (commissions) are the meetings convened in accordance with the terms of their work. Its Chairman, who carries out organizational functions, is elected from among the staff of the committee (commission). Within their competence, the committees (commissions) have the right to perform the following: to formulate proposals for the agenda of the session of the legislative body, to deliver reports and co-reports at the sessions 137

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of the legislative body, to compose proposals on their activities to the legislative body, to arrange the parliamentary (deputy) hearings and etc.1 If necessary, the parliaments of the regions of the Federation may establish the working groups and temporary commissions. The objects and working procedures of the working groups (temporal commissions) are determined by the Parliament during their formation. The working groups (temporary commissions) stop functioning after completion of their tasks or pre-term objects according to the decision of the legislative body. In cases when the chief official (the head of the supreme executive body of state power) of the region of the Russian Federation uses the right of veto concerning law adopted by the regional Parliament or when in the bicameral legislative (representative) bodies the disagreement between the two chambers appears, the deputies resorted to establish a conciliation commission. Participation of the political associations in the formation of the legislative bodies of the regions of the Federation influences the internal organization of this body. The deputies elected in the staff of the lists of candidates are included into the factions. The faction includes all deputies (deputy), elected in the appropriate list of candidates admitted to distribution of deputy mandates. The factions may also include the deputies elected in single-mandatory or multi-mandatory constituencies, and deputies elected in the staff of the lists of candidates of political parties. The rest of the deputies have the right to form other deputy associations, which are not factions. The operating procedures of the factions and the formation and activities of other deputy associations are established and regulated by the law of the region of the Russian Federation and (or) of the Regulation or in any other act of the legislative body of the subject of the Russian Federation2. 1



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The bicameral parliaments of the regions of the Russian Federation are also provided with the possibility of establishing the joint chambers of permanent and temporary committees and commissions. For example, in accordance with Art. 99 of the Constitution of the Republic of Kabardino-Balkaria the republican’s parliament could form joint committees and commissions of the chambers on permanent and temporary basis within the joint competence of the Chambers. Permanent committees and commissions of the Parliament, in particular, carried out a preliminary review of draft laws and prepared them for consideration by the Parliament and the preparation of opinions on draft laws and regulations under consideration by the Parliament; in accordance with the decision of the Parliament the requests to the Constitutional Court of the Republic of Kabardino-Balkaria are prepared; control and analytical work is performed; a preliminary examination of questions of censure some members of the Government of the Republic was carried out; personnel matters were considered; parliamentary hearings were arrangeed; the comments and suggestions on the relevant sections of the draft national budget were given. Ref. for details Ch. III.

Сhapter II. Parliament is the Supreme Representative and Legislative Body

In the regulations of the legislative bodies of the regions of the Russian Federation the factions and other deputy associations are competent in specific parliamentary procedures (preliminary discussion of candidates for the post in the parliament, draft acts of the parliament; the advantage in providing with the right to deliver a speech and others). Thus, the Machinery of the legislative bodies of the regions of the Federation as a whole is characterized by the similarity with the internal organization of the federal parliament. However, there are differences. An example of a special inter-parliamentary body is the Assembly of Representatives of Indigenous Peoples of the North, formed in the Duma of the Khanty-Mansi Autonomous Area — Yugra, consisting of elected in multi-mandatory constituency deputies of the Duma1. At its first meeting the members of the Assembly shall elect the Chairman of the Assembly, who is on the post of the Deputy Chairman of the Duma. The main function of the Assembly is the preliminary examination of draft laws that directly affect the interests of indigenous peoples of the North. This institution, formed under this scheme, has lost its significance, therefore it needs the development in the spirit of contemporary realities. It seems that the protection of the interests of this category of the population in the legislative (representative) body might be carried out by deputies, factions, other deputy associations which consider them in their election promises2.

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In accordance with the Charter (Basic Law) of the Khanty-Mansi Autonomous Area — Yugra the Duma of the Khanty-Mansi Autonomous Area — Yugra consists of 35 deputies. The election of three deputies are held by the majority system in the multi-mandatory constituency, which is the territory of the autonomous region. It is said that these 3 deputies are indigenous peoples in the legislative bodies of the Autonomous Area. Indeed, the Federal Law «On Guarantees of the Rights of Indigenous Peoples of the Russian Federation» (Ch. 13), the regions of the Federation were granted with the right to establish its own laws of quota representation in their legislative (representative) bodies. However, in 2004, this rule was no longer valid. In 2005, the Supreme Court (decision of March 16, 2005. No 63-G05-5) confirmed the decision of the Court of Nenets Autonomous Area to invalidate the provisions of the Law of the Autonomous Area «On Election of Deputies of the Assembly of Deputies of the Nenets Autonomous Area», in which two deputies from the small indigenous minorities were elected in a multi-national-territorial constituency. The literature suggests for the most consistent solution of socio-economic and cultural development of indigenous peoples to protect their traditional way of life, livelihoods and crafts to use bicameralism, which is currently declined in the regions (Ref. O.M. Medvetsky. Bicameral parliaments of Russia: modernity and prospects // The legislation and economy. 2005. No. 12; O.N. Bulakov. Bicameral structure of parliament (legislative practice and problems) // Constitutional and Municipal Law. 2006. No. 9). 139

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§ 1. A parliamentarian: the definition and the concept principles of his activity

The pivotal figures of the Parliament are parliamentarians. A parliamentarian is the representative of the voters, intended to express their interest in the execution of legally established powers. Namely, the parliamentarians should play a key role in the creation of the legislative base aimed at the realization of constitutional values: formation in Russia of a democratic, sovereign, legal, social, secular state with a republican form of government, local self-government, separation of powers, ideological and political pluralism. The legal status of a parliamentarian is a set of legal norms regulating social relations in the area of arising and execution of executive powers. The legal status of a member of the Council of Federation and a deputy of the State Duma is regulated by the Constitution of the Russian Federation, the Federal Law of May 8, 1994 No. 3-FZ «On the Status of a Member of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation» (hereinafter — the Law on the status of a member of the Council of Federation and the status of a deputy of the State Duma). The legal status of a deputy of the legislative body of the region of the Russian Federation is determined by the Federal Law of October 6, 1999 No. 184-FZ Federal Law «On the General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation», by the basic law of the region of the Russian Federation (a constitution or a charter), as well as special laws on the status of deputy1. In addition, the rules governing the procedure of the execution by the deputies of a number of their powers are contained in the regulations of the legislative bodies of the Russian Federation and its regions. 1



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Ref., e.g.: The Law of the Altai Territory of December 4, 2000 No. 76-ZS «On the Status of a Deputy of the Legislative Assembly of the Altai Territory»; the Law of the Irkutsk Region of June 8, 2009 No. 31-03 «On the Status of a Deputy of the Irkutsk Region Legislative Assembly»; the Law of Lipetsk Region of February 14, 1995 No. 5-03 «On the Status of a Deputy of the Lipetsk Regional Council of Deputies»; the Law of the Saratov Region of March 3, 2004 No. 10-ZSO «On the Status of a Deputy of the Saratov Regional Duma».

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The legal status of a parliamentarian may be influenced by the corporate norms. For example, the behavior of the deputies — members of the parliamentary factions, groups of the Parliament, to a certain extent are determined by the norms of the documents of the political parties, to which they belong. A parliamentarian takes a special place in the system of popular representation. He is intended to express the will of the representees, who entrusted the right to rule to him; has a special legal capacity by contrast to the common civil capacity; is a subject of the constitutional and legal liability. The analysis of the universally recognized norms of international law, Russian legislation regulating the legal status of the parliamentarians and legislative bodies of the Russian Federation, allows to establish a number of ideas that permeate the essence, main directions, forms of organization and activities of the parliamentarians. They serve as a guidemark of the parliamentarians’ relationships with the citizens of Russia, state bodies, local governments. The degree of their compliance is directly related to the level of coherence, stability and efficiency of the participatory democracy and system of representation. The guiding principle of the legal status of the parliamentarians is a democratism (government by the people), which means that the source of authority and legitimation of the parliamentarians is the Russian multinational people. According to Art. 1 of the Law on the status of a member of the Council of Federation and the status of a deputy of the State Duma a member of the Council of Federation is the representative of the region of the Russian Federation, authorized in accordance with the Federal Law of December 3, 2012 No. 229-FZ «On the Procedure of the Council of Federation of the Federal Assembly of the Russian Federation Formation» to carry out in the Council of Federation of the Federal Assembly of the Russian Federation, legislative and other powers provided by the Constitution of the Russian Federation and the current Federal Law. A deputy of the State Duma is elected in accordance with the Federal Law of May 18, 2005 No. 51-FZ «On the Election of the Deputies of the State Duma of the Federal Assembly of the Russian Federation», a public representative authorized to execute in the State Duma of the Federal Assembly of the Russian Federation, legislative and other powers provided by the Constitution of the Russian Federation and the current Federal Law. In this regard there is interesting problem of determination of subjects, whose representative a parliamentarian in the regions of the Russian Federation is considered. An analysis of the laws of the regions of the Russian Federation on the status of the deputy allows to mark out the following 141

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features of definition of subjects, whose interests and will are represented by a parliamentarian. The laws on the status of the deputies of the Parliament of St. Petersburg, Altai Republic, calling a deputy — a representative, are hold back whose interests he represents. The relevant law of the Tyumen Region calls a deputy as a representative of the region, and the law of the Moscow region — a representative of the respective territory of the Moscow region. Deputy is a representative of the people (the Orenburg Region, the Saratov Region, the Republics of Tatarstan, Ingushetia); representative of the population (the Leningrad Region); representative of the voters of the respective electoral district (the Altai Territory, the Tomsk Region). We assume that a deputy could not be a representative only of a territory, region. In addition, it is impossible to consider him to be a representative of the population, residents of the region of the Russian Federation, as these categories in addition to citizens of the Russian Federation include persons without the citizenship of the Russian Federation and the right to vote. Therefore, it seems appropriate to define a parliamentarian of the representative body of the subject of the Russian Federation as a representative of the voters. For example, according to the Law of Moscow of July 13, 1994 No. 14-60 «On the Status of a Deputy of the Moscow City Duma», «A deputy of the Duma, elected in single-mandate electoral district, represents the interests of the voters of this district. A deputy of the Duma elected in city electoral district, represents the interests of the electoral district (electoral districts), specified by a faction in the Duma, to which he belongs» (Art. 8). The parliamentarian, being a representative of the voters shall meet certain requirements: holding a Russian citizenship, absence of the citizenship or residence permit or other document of the foreign country entitled to permanent residence of a citizen of the Russian Federation on the territory of a foreign country, attainment of the age specified by law. The content of the principle of democracy is affected by the nature of the deputy mandate set forth by applicable law. Deputy mandate defines the nature of relations of a parliamentarian with the voters, civil society. The value of the relationships of the parliamentarians with the voters was underlined by J. S. Mill, who called these relationships a constitutional morality, ethics of the representative government1. Deputy mandate has three types: free, semifree and imperative. Historically, the imperative mandate arose first. It is characterized by the presence of electors’ mandate parliamentarian’s reports to the voters and the possibility of its early withdrawal by the voters. Imperative mandate was a constitutional principle of 1



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J. S. Mill. Thoughts of Representative Government. St-Petersburg, 1863. 165 p.

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the Soviet representative system. It currently remains in force in the Novosibirsk, Penza, Tyumen Regions, the Republic of Altai 1. The Constitution of the Russian Federation and the Law on the status of a member of the Council of Federation and the status of a deputy of the State Duma do not contain neither electors’ mandate, nor reports of the parliamentarians or the possibility of their early withdrawal. Thus, a deputy mandate at the federal level is free. Also, a mandate is free in some regions of the Russian Federation: the Leningrad, Sverdlovsk Regions, the Republic of Ingushetia, Moscow. For example, the Law of the Republic of Ingushetia of July 15, 1994 No. 1-RZ «On the Status of a Deputy of the National Assembly of the Republic of Ingushetia», without mentioning the electors’ mandate, reports of the deputies and the possibility of its withdrawal, in Art. 8 states that a deputy of the National Assembly is free in his judgments, decisions and opinions on the matters subject to jurisdiction of the People’s Assembly, and is responsible before the law. Due to the introduction in the last decade of proportional elections in all legislative bodies in the territory of the Russian Federation, there is a tendency to restrict a free mandate of a parliamentarian. A political party serve as mediate between the voters on the one hand, and a deputy and the Parliament, on the other hand. Namely, a political party defines a political program and behavior of a deputy, may demand a report on its activities in the legislative body, and not include him in the party list at the next elections. A deputy, being legally independent of the voters, is very dependent on the political party2. Thus, Art. 10 of the Law of the Moscow region of October 30, 2007 «On the Status of a Deputy of the Moscow Regional Duma», states that a deputy of a Duma in its activity is bound by the charter of political party, policy documents, decisions of the relevant body of a political party as part of a single list of which he was elected. A deputy of the Duma is responsible to a political party, as part of a single list of which he was elected. Thus, a legal independence of the parliamentarians from the voters was replaced by legal and factual dependence on the political parties.

1



2



Ref., e.g.: The Law of the Novosibirsk Region of September 17, 2003 «On the procedure of voters and the appeals of citizens»; the Law of the Penza Region of December 22, 2006 «On Procedure of Voters to the Deputies of the Legislative Assembly of Penza Region»; the Law of Tyumen Region of June 27, 1994 «On the Status of Deputies of the Tyumen Regional Duma»; the Law of the Republic of Altai of February 1, 1995 «On the Procedure of Dismissal of a Deputy of the Republic of Altai». Ref.: L.A Nudnenko. The institutions of direct democracy in local government system (problems of theory and practice): Thes. ... Doctor of Law Moscow, 2001. 143

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The fact that the legal fiction of the deputies independence has been recognized by the majority of the foreign scientists for a long time. In this regard, a term «semirepresentation mode» was proposed, basis of which was a semifree mandate1. The legislations of the majority of the regions of the Russian Federation stipulate a semifree mandate, which is characterized by the absence of instructions of voters, place of which is occupied by the pre-election program of a candidate for deputy, and the availability of reports of the deputies to the voters and the possibility of early withdrawal of a parliamentarian by the voters2. The desire of a regional legislator to preserve the reports and responsibility of the parliamentarians to the voters can be explained by subjective factors, namely, under the established over decades of the Soviet form of government in Russia understanding of national sovereignty, democracy as contiguity of the representatives and representees, ability of voters to influence the activity of the Parliament and the parliamentarians and, if necessary — to replace them3. The Russian sociologist K. Takhtarev as early as 1917 noted that «the national consciousness recognizes only the sovereignty of the people. The voters of the individual districts treat the members of the Parliament elected by them as their own representatives».4 Survival of reports and recall of deputies before time can be explained by objective factors such as the presence among the parliamentarians people who by their moral, professional and business qualities are unworthy and unable to perform the function of a representative of the will and interests of the voters. The voters shall have the right and opportunity to correct a mistake made by them in the election. The legality as the principle of a parliamentarian’s status follows Art. 15 of the Constitution of the Russian Federation and means that the deputies are obliged to respect the Constitution of the Russian Federation and the Federal laws, to ensure their conformance with the adopted laws and decisions. In accordance with the Charter of Moscow, «the state power and local self-government are carried out on the basis of the law. The main purpose of the execution of power is the insurance of the rights and freedoms of man and citizen, economic, social and cultural development of Moscow in the interests of the population of Moscow»(Art. 7). 1



2



3



4

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Ref.: M. Prelo. The Сonstitutional Law of France / Editor-in-Chief A.Z. Manfred. Moscow, 1957. 439 p. Ref.: The Law of December 4, 2000 «On the Status of Deputies of the Altai Territory Legislative Assembly». Ref.: L.A. Nudnenko. The theory of the democracy. M., 2000. 90 p. K.Takhatrev. From the representation to the democracy. St-Petersburg, 1907. 25 p.

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The legality assumes a supremacy of the Constitution of the Russian Federation and the federal laws on the territory of the Russian Federation. This principle assumes that any law or other act does not have the right to contradict the Constitution of the Russian Federation and federal laws. Parliamentarians shall ensure the conformance of their laws and other regulations with the Basic Law of the Russian Federation and federal laws, serve as an example of their execution and observance. The accomplishment of this task is achieved by means of parliamentary control over the activities of executive body. The result of such control may be: the non-confidence vote by the State Duma of the Federal Assembly to government of the Russian Federation, the non-confidence vote by the legislature to the holder of the highest office of the region of the Russian Federation, to the highest executive body at hole or individual members of the government of the region of the Russian Federation, recognition of the results of work of the accountable bodies as satisfactory or unsatisfactory, adoption of regulations based on the results of reports and inspections of the executive bodies and other bodies of the region of the Federation, and others. The parliamentarians have the legal opportunities to participate in the strengthening of the legality through the implementation of: measures to ensure the rights, freedoms and legitimate interests of their voters; the right to participate in the parliamentary investigations; the right to exercise control over the consideration of the submitted by them deputy inquiries by the competent state authorities and local authorities; the right to exercise control over the consideration of the submitted by them proposals, applications and complaints of the voters. The state bodies, enterprises, institutions and organizations are obliged to provide a parliamentarian with all the necessary information on this issue. The parliamentarian also has the right to control over the adequacy and timeliness of the reports of government and public bodies, enterprises, institutions and organizations to the applicants on the results of the considered by them proposals, petitions and complaints. In case of the violation of legality, a parliamentarian has the right to raise the question of their eliminating before the competent law enforcement authorities. An important form of the parliamentarians’ participation in the implementation of the legality is the public opinion research and, if necessary, further proposals to the relevant state authorities, local authorities and public associations. At this, the intervention of a parliamentarian in the operational and search, criminal and procedural activities of the bodies of inquiry, investigation and judicial activities is not allowed. The basic principle of a parliamentarian status should be considered as execution of functions on a permanent professional basis. While all the deputies of the State Duma and the members of the Council of Federation of 145

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the Federal Assembly, the deputies of the Moscow City Duma and the Legislative Assembly of St. Petersburg perform their duties on a permanent basis, the deputies of the legislative bodies of other regions of the Russian Federation carry out their activities, both on a professional basis and onthe-job basis. This can be explained by the fact that in those regions of the Russian Federation the process of the formation of the parliamentarism, which is characterized by the execution of deputy powers on a permanent basis1 has not yet been completed. If the constitution (charter) and (or) the law of the Russian Federation provides the carrying out by the deputy of his parliamentary activity on a permanent professional basis, than in this case, at least one deputy elected in the composition of each list of candidates admitted to the distribution of deputy mandates in the legislative (representative) body of this subject of the Russian Federation, and each deputy is elected as part of the list of candidates, to which a deputy mandate was transfered in accordance with the law of the region of the Russian Federation, provided by the Federal Law «On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of the Citizens of the Russian Federation» to Participate in a Referendum (p. 17 Art. 35), should be entitled to carry out a deputy activities on a permanent professional basis. For example, the Law of the Saratov Region of March 3, 2004 No. 10-ZSO «On the Status of a Deputy of the Saratov Regional Duma» provides that among 36 deputies of the regional Duma only 16 deputies carry out their activity on a permanent professional basis. However, if the number of deputies who desired to work on a permanent professional basis, would exceed the number established by the mentioned Law, the mattwer on increasing the total number of deputies engaged in deputy work on a permanent professional basis should be bring before a meeting of the regional Duma (p. 2, Art. 6). In addition, a candidate for election (appointment) as a representative in the Council of Federation shall be a citizen of the Russian Federation, who is a deputy of the legislative (representative) body of the region of the Russian Federation or a deputy of a representative body of the municipality, located on the territory of the region of the Russian Federation, which state body carries out its election (appointment) as a member of the Council of Federation. An important principle of the status of a parliamentarian is the limitation by the law of the period of execution of deputy powers. The term of a parliamentarian office is determined by the term of office of the respective Par1



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Ref. for more information: L.A. Nudnenko. The constitutional and legal status of a deputy of the legislative body in the Russian Federation. St.-Petersburg, 2004. 13–14 p.

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liament (4–5 years) and begins from the day of his election by a deputy of the relevant Parliament, and terminates since the beginning of the Parliament’s of the new convocation work. The powers of the Member of the Council of Federation begin from the date of his election (appointment) by the relevant public authority of the region of the Russian Federation, and terminate on the date of election (appointment) of a new member of the Council of Federation — a representative of the same state body of the region of the Russian Federation1. Since the term of office of the deputies of the State Duma begins on the date of election, and terminates since the beginning of the work of the State Duma of the new convocation, there is every indication of dual power. The newly elected deputies acquire the powers from the date of the election and the term of office of the deputies of the previous convocation of the State Duma terminates only after the first session of the newly elected State Duma. Therefore, a more logical from the point of view of the theory of popular representation is seen in the establishment of the end of the deputies powers of the State Duma on the day of the election of deputies of the new convocation. Such solution of this problem will eliminate both an opportunity of the dual power and an interruption in the exercise of state power. The above mentioned rule concerning the termination of the powers of the State Duma from the date of the beginning of the work of the State Duma of the new convocation does not apply in the case of early termination of powers of the State Duma in the situations stipulated by Art. 111 and 117 of the Constitution of the Russian Federation. In this situation, the powers of the deputies of the State Duma are terminated from the date of early elections of deputies of the State Duma. In the case of the early dissolution of the State Duma only the Council of Federation remains in force within the Federal Assembly, which under the Constitution of the Russian Federation cannot be dissolved. The loss of parliamentary mandate is possible as a result of cancellation and early termination. Concellation of the deputy’s mandate is independent of the will and consciousness of the deputy — in the event of his death. The grounds for early termination of powers of a parliamentarian can be classified as arising at the initiative of the deputy and the decision of the Parliament (personal statement of resignation of a parliamentarian, resignation from the function of deputy is own free will) and on the initiative and decision of the Parliament. Among them: the loss of citizenship 1



Ref. for details: L.A. Nudnenko. Comment to the Federal Law «On the Status of a Member of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation». Moscow, 2011. 26–27 p. 147

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of the Russian Federation or the acquisition of citizenship of a foreign country; the entry into force of a judgment of conviction against a parliamentarian; the entry into force of a court decision on limitation of the capacity of a parliamentarian or on his incapacity; the recognition of a parliamentarian a missing person or a dead by a court decision, which entered into force. Incompatibility is the ground of early termination of the deputy’s mandate, it can be regarded as a principle of the legal status of members of a parliamentarian. The incompatibility means incompatibility of the mandate of a parliamentarian for the duration of his powers and the performance of certain duties. The specific objectives of the incompatibility qualification are: –– ensuring of the effective activities of deputies on the exercise of their competence, control over the executive bodies and local self-government; –– exception of lobbying of particularistic departmental interests in the activities of the legislative bodies and local self-government; –– interdiction of the possible abuse of official functions by the representatives of state, municipal authority in the case of their parliamentary mandate and consequently the parliamentary immunity. The principle of incompatibility in Russia is enshrined at the constitutional level. The Constitution of the Russian Federation (p. 2 and p. 3 of Art. 97) establishes two types of incompatibility of the mandate of the deputy of the State Duma. Firstly, the same person cannot simultaneously be a member of the Council of Federation and the State Duma deputy or a deputy of other legislative bodies and local self-government. Secondly, a deputy of the State Duma cannot be in the public service, engaged in other paid activities, except for teaching, scientific and other creative. The above mentoned constitutional provisions are amplified by the Law on the status of a member of the Council of Federation and the status of a deputy of the State Duma (Art. 4), according to which the parliamentary mandate is incompatible: а) with the entring into the governing bodies, trustees or supervisory boards and other bodies of foreign non-governmental organizations and their structural units functioning in the territory of the Russian Federation, unless otherwise provided by the international treaty of the Russian Federation or the legislation of the Russian Federation; b) with the election as a deputy of another parliament or local government bodies, as well as with the appointment to another state post of the Russian Federation, the state office of the region of the Russian Federation; c) with the entering of a parliamentarian state or municipal service, forming part a governing body of the economic company or other commer148

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cial organization, carrying out entrepreneurial or other paid activity, except teaching, scientific and other creative activity. The incompatibility of the deputy mandate with the occupation of a number of positions in the state and municipal government system is based on the principle of separation of powers and is intended to ensure the independence of the deputies. In addition, it is generally due to the need to ensure the most efficient functioning of the Parliament, as well as the establishment of a real opportunity for active execution of a parliamentarian of his functions. Despite the existence in federal and regional legislation of provisions stipulated that the decision to terminate the powers of a parliamentarian should be adopted by the Parliament, there is a lack of clarity in the process of such a decision-making. What kind of the procedure of the review should be is the preliminary review by the Mandate Committee necessary in all cases — all this needs a legal regulation. We assume that the procedure for early termination of powers of a parliamentarian should be in direct relationship to the grounds of this issue. Thus, in case of death of a deputy, loss of citizenship of the Russian Federation, acquisition of citizenship of a foreign state, presentation of the documents supporting the above legal facts and conclusions of the Mandate Committee will be necessary to make a decision by the Parliament on early termination of the powers of a parlamentarian. For a decision on early termination of the powers of a parliamentarian on a number of grounds, the federal and regional legislation provides the mandatory presence of a court decision (on limitation of the capacity of a parliamentarian or his incapacity, on the recognition of a missing or a dead person), a judgment of conviction against a parliamentarian. The procedure for a parliamentarian’s powers termination in case of violation of the principle of incompatibility is not settled of both federal and regional legislation. We assume that only submission of the Prosecutor General’s Office and the Investigative Committee of deprivation of the deputy powers because of the incompatibility of a parliamentarian’s mandate with certain activities is not enough. There should be a judicial decision confirming this legal fact. In addition, it is advisable to establish both in the federal and regional legislation a secret ballot in all cases of early termination of a parliamentarian’s powers. The principle of collective, free discussion of the matters and decision-making by the parliamentarians at the meetings of the legislative body of the state power is ensured by establishment of the eligibility conditions of the legislative body (its chamber), as well as the establishment of the quorum necessary for the recognition of the validity of the parliamentary session. It is usually considered as competent if its composition include at least 149

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two-thirds of the established number of deputies, and the session of the parliament of the region of the Russian Federation shall be considered valid if it is attended by not less than two-thirds of the established number of deputies. Freedom of discussion is the right of a parliamentarian to freely express his ideas, beliefs, and proposals both orally and in writing. Orally, freedom of discussion is realized by the parliamentarians at the meetings of the Parliament, its committees and commissions, deputy factions, round tables and conferences held within the Parliament. Execution of the freedom of discussion is possible in writing through suggestions and comments sent in written form following an oral discussion to the Chairman of the Parliament or its Chamber. Freedom of discussion assumes the right to obtain information on the matters discussed in the Parliament and its bodies. In accordance with the Law on the status of a member of the Council of Federation and the status of a deputy of the State Duma, the obligation to provide information to a member of the Council of Federation, a deputy of the State Duma is assigned to the officials of the state, local self-government, public associations and organizations. However, in the discharge of official duties a member of the Council of Federation and a deputy of the State Duma is interested in information available in the organizations irrespective of the form of their ownership. This information is required as a rule for legislative activities, for example for the preparation of the financial and economic feasibility of the introduced draft laws or analysis of the operation of the adopted legislative acts. It is therefore advisable to amend the Art. 17 of the above mentioned Federal Law. The principle of a parliamentarian status is the publicity and consideration of public opinion. According to the decision of the Parliament their meetings may be attended by the representatives of the state bodies, the public associations, the academic institutions, the experts and the other professionals to provide the necessary information and opinions on the considered draft laws and other matters. The representatives of the media subject to their accreditation in the State Duma may attend open sessions of the Chamber. The members of the Public Chamber, authorized by the Board of the Public Chamber, may attend the public meetings of the State Duma for the consideration of draft laws, which were the scope of the analysis of the Public Chamber. The representatives of the political parties not represented in the State Duma, at least once a year may attend the meeting of the State Duma upon the decision of the Council of the State Duma. The Council of the State 150

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Duma directs the relevant invitation to the heads of political parties not represented in the State Duma, no later than five days prior to the said meeting. From each of the political parties not represented in the State Duma, the meeting of the State Duma may attend one representative authorized by the collegial permanent governing body of the political party. The Council of the State Duma, under the suggestion of the Committee on Regulations and Organization of the State Duma determines the list of political parties not represented in the State Duma, representatives of which are entitled to speak at the session of the Chamber, as well as establishes the procedure for their speeches. (Art. 38 of the Regulations of the State Duma of the Federal Assembly). Along with this a closed session of the Parliament may be held. Thus, according to that Regulations, the State Duma (Art. 37) may decide to hold a closed meeting if the suggestion about it was made by the presiding at a meeting of the State Duma, the Council of the State Duma, the President of the Russian Federation, the Committee of the State Duma, or faction, the Chairman of the State Duma, the Chairman of the Government of the Russian Federation. The decision to hold a closed session is taken by a majority of votes of the deputies of the State Duma, who participated in voting. Closed session of the State Duma is appointed, as a rule, not less than one hour before the scheduled time of its holding. It is forbidden to take to a closed session of the State Duma and use during a closed session photo-, cine- and video equipment, telephone communication means and radio communication, devices as well as the devices of recording and processing of information. Representatives of the media are not allowed at a closed session of the State Duma. The information constituting state or other legally protected secrets, discussed at a closed session of the State Duma, are not subject to disclosure and dissemination. At a closed session of the Chamber at the beginning of this session the Chairman shall notify the deputies of the State Duma and the invitees about the basic rules of the closed session, about the level of confidentiality of the discussed information and warn about the responsibility for the disclosure and dissemination of information constituting state or other legally protected secrets. The consideration of public opinion logically follows from the duty of a parliamentarian to study public opinion. This duty as though permeates all forms of his activities in the electoral district. The public opinion express as views of citizens and their associations on a variety of issues on economy, politics and culture. The public opinion in a certain part is not based on proven facts, and therefore is subjective. Where public opinion is true, it serves as one of the 151

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important sources involved in the complex process of the formation of the unified will of the Russian people, the population of the region of the Russian Federation and the local community. Consideration of public opinion implies the duty of the parliamentarians to reflect in their statements and adopted decisions the opinion of the district voters, population of the region of the Russian Federation, multinational people of Russia. § 2. The powers of the parliamentarian and the guaranty of his activity

The most important form of activity of a parliamentarian is his participation in the meeting of the Parliament. Powers to participate in the meetings of the Parliament can be conditionally classified into organizational, control and constituent. The organizational powers of a parliamentarian aim to forming the structure of the Parliament, its Chambers and election of the officials. Among them, in the first place is the obligation to personal participation in the meetings of the Chamber. At the current stage of the development of the parliamentary activity in the Russian Federation the transferring by the deputies of the State Duma of their votes (voting cards) to other deputies of the State Duma has become a regular practice. Thus, a quorum for the meeting and voting is artificially created, while in fact, and in the plenary hall there are no more than 20 people. The law on the status of a member of the Council of Federation and the status of a deputy of the State Duma stipulates that a deputy of the State Duma carries out his activities on a permanent basis, so we believe that participation in the plenary sessions and personal voting on the discussed issues should be mandatory for a deputy. In this regard, a draft law was introduced with the proposal to amend the Law on the status of a member of the Council of Federation and the status of a deputy of the State Duma deputy status with provisions aimed at curbing the practice of voting by the deputies of the State Duma in the plenary meetings instead of the other deputies, and to establish that the failure to comply with this requirement will be the basis for early termination of powers of the deputy of the State Duma. This draft law was unfortunately rejected. In addition, at a meeting of the Parliament a parliamentarian: has the right to make proposals on the session agenda, has the right to association, the right to elect and to be elected to the Chamber, to submit nominations for elective posts in the Chamber, Standing Committees. 152

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The purpose of the control powers of a parliamentarian is to control the application of laws adopted by the Parliament, the activities of state bodies and their officials within the competence of the Parliament. Those are: the right to make proposals about hearing at the meeting of the report or the information from the officials or the state body; the right to raise the question of confidence to the composition of the elected by Chamber bodies, officials elected, appointed or approved by them; the right to make proposals for a parliamentary investigation. The most important form of a parliamentary control, typical for the Chambers of the Federal Assembly, is a parliamentary inquiry. The Council of Federation and the State Duma have the right to submit a parliamentary inquiry to the Chairman and the members of the Government of the Russian Federation, the Prosecutor General of the Russian Federation, the heads of other federal state bodies, bodies of the subjects of the Russian Federation, the local governments on matters which fall within the competence of these bodies and officials. Parliamentary inquiry is accepted by a majority of votes of all members or deputies of the respective Chamber of the Federal Assembly. The official, to whom a parliamentary inquiry was sent, should answer it orally or in writing no later than 15 days from the date of its receipt or in other term established by the relevant Chamber of the Federal Assembly. The answer shall be signed by the official to whom a parliamentary inquiry was sent, or a person temporarily in charge. A written response to a parliamentary inquiry shall be announced by the Chairman at a meeting of the respective Chamber of the Federal Assembly, on which behalf a parliamentary inquiry was made. In addition to a parliamentary inquiry, which is submitted on behalf of the Chamber of the Federal Assembly, the legislation of the Russian Federation and its regions make possible a deputy inquiry, made by every parliamentarian, to the previously mentioned authorities and officials. The inquiry of a parliamentarian is sent by him independently and does not require its announcement at the Parliament’s meeting. The official, to whom the inquiry was sent, should answer it in writing not later than 30 days from the date of its receipt or in other term agreed with the initiator of the inquiry. Quite useful for the improvement of inquiries review procedure at the Parliament’s meetings of the regions of the Russian Federation would be the adoption of the experience of the deputies the State Duma, which provides time for the deputies to put questions to the members of the Government of the Russian Federation and the responses to them. In the Regulations of the Parliament of the regions of the Russian Federation it might be envisaged that a deputy or a group of deputies refer in advance to the Presidency of the Parliament a matter to the members of the supreme ex153

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ecutive body of the region of the Russian Federation in writing, which is the ground for the invitation of the appropriate official. If an invitee is unable to come to a meeting of the Parliament, he is obliged to answer in writing a preliminary question. In this case, the answer of a member of the supreme executive body of the Russian Federation brought to the attention of deputies by the Chairman of the Parliament’s meeting. In connection with the accessibility and the importance of deputy questions as a form of parliamentary control over the executive authorities is deemed necessary a detailed regulation of the procedure for its realization. To matters the requiring a legal regulation, in our opinion, should be referred the following: –– time for the question’s author speech (up to 5 minutes); –– opportunity at request and demand of the author to convert a written question, to which no reply was received within the specified period, in an oral question; –– period for preparation of a response to a deputy’s question (up to 15 days); –– time to answer the questions (depending on the content of the questions the answers to them is advisable to give immediately or at the end of the session orally); –– establishing a requirement of mandatory publication in the regional media the questions of parliamentarians and the responses to them. An important form of the control activities of the parliamentarians is a raising a question of the parliamentary investigation. The procedure of a parliamentary investigation is regulated by the Federal Law of December 27, 2005 No. 196-FZ «On the Parliamentary Investigation of the Federal Assembly of the Russian Federation». The initiative to conduct a parliamentary inquiry belongs to a group of members of the Council of Federation or the State Duma deputies in number of not less than one-fifth of the total membership of the Council of Federation or the State Duma deputies. With the support of this initiative and the decision to initiate a parliamentary investigation, the Chamber of the Federal Assembly on an equal basis forms a commission consisting of members of the Council of Federation and the State Duma deputies and elects its co-chairs. The statutory powers of a parliamentarian are intended to take part in the preparation, consideration and adoption of the decisions on matters which fall within the competence of the Parliament. Equally important is the right of a parliamentarian to deliver a report, and a supplementary report on the agenda of the Parliament’s meeting. A parliamentarian has the right to participate in debates at the Parlia154

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ment’s meeting. Parliamentary debates are «regulated competition»1, which is based on differences in the understanding of the ways and means of achievment of general objects. The debate allows forming a public opinion and to reach the consensus. Freedom of speech of a parliamentarian in the debates is provided by absence of censorship of his speech from the Parliament. This freedom is not limited to the content, but is «measured» by the time for participation in the debates stipulated by the regulation. The parliamentarians, who were not able to speak due to the closure of the debates shall be entitled to attach the signed by them and endorsed at the meeting by the Chairman texts of speeches to the transcript of the Parliament’s meeting. The parliamentarians have the right to give reference information. Word for reference is available: to remind the exact formulation of the legal act, directly related to the matter, to bring the statistical and other information of the matter under consideration. The constituent powers also include: the right to ask questions; the right to get acquainted with the transcripts of the sessions; the right to transfer the Chairman of proposal and comment in writing and come up with their justification; the right of a casting vote; the right to make proposals for the consideration of any questions at the session; the right to make proposals for the draft agendas of the session, and the procedure of consideration and essence of the discussed questions; the right to speak to the validity of own proposals. The most important right of a parliamentarian is the right for legislative initiative, which has taken the form of introduction to the Parliament (the State Duma) of draft laws, including amendments to the existing legislation of the Russian Federation and its regions; amendments to the draft laws. The groups of at least one-fifth of the members of the Council of Federation or the State Duma deputies may propose amendments to the Constitution and the revision of the Constitution of the Russian Federation. The parliamentarians should properly represent the voters in the parliamentary sessions, observe ethical standards, apply formally to each other, use the form of address: «Dear deputy», «Dear expert», etc. with or without the addition of the surnames. Familiarity and neglect are not permitted. A parliamentarian, speaking at a meeting of the Parliament shall not use in his speech rude, abusive language against other parliamentarians and other persons, allow himself 1



L. Diamond. Three paradoxes of democracy // Democracy. Theory and practice. Moscow, 1996. 116 p. 155

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unfounded accusations against someone, use the false information, call for illegal and violent actions1. Ethical behavior of a parliamentarian includes the requirements of Art. 6 of the Law of June 8, 1998 No. 47/6-ОZ, «On the Status of a Deputy of the Legislative Assembly of the Orenburg Region» that the deputy should: –– refrain from actions, statements and deeds, compromising himself, voters and the Legislative Assembly; –– not use for personal purposes the advantages of his deputy status in relations with state bodies, officials, media; –– not use the information provided by the official services for private advantage; –– not disclose information, which became known to him in connection with the direct execution of deputy activities, if they are: a) deal with the issues discussed at a closed session of the Legislative Assembly; Russian scientist A.A. Zhizhilenko in 1909 raised the question of the establishment of measures to address such abuse, as the general measures of the parliamentary discipline are insufficient2. b) covered by personal privacy of a citizen or other person, business or official secret. The problem of the ethics compliance by the parliamentarians is actual for todays parliamentarians. In this regard, the amendments to the regulations of the Chambers of the Federal Assembly, establishing the constitutional and legal forms of liability of the parliamentarians for violation of ethical behavior at the meetings of the Chambers of the Parliament are necessary. However, it seems unconstitutional the implementation of the idea on the possibility of amendments to the regulation that will deprive a parliamentarian of parliamentary mandate without a court decision, by the decision of the respective Chamber of the Federal Assembly3. A parliamentarian gets his powers from the voters, and the Parliament as a collective representative body cannot replace voters on the issue of depriving a parliamentarian of mandate. 1



2



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Ref.: L.A. Nudnenko. Comment to the Federal Law «On the Status of a Member of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation». Moscow, 2011. 97–99 p. Ref.: A. Zhizhilenko. On the irresponsibility of People’s Representatives. Yaroslavl, 1909. 52–53 p. The deputies will be deprived of powers for absenteeism // Lenta.ru. URL: Lenta.ru/ news/2012/07/16/away

Chapter III. The Status of the Parliamentarians and Their Associations

An important and fundamental form of activity of a parliamentarian is the participation in the work of standing committees and commissions. In this sense, it is fair idea of the French lawyer Loquet P., who, comparing the parliamentary work with an iceberg, says, that public meetings of the Parliament are only the visible, above-water part. They shall be considered no more than as a play, acted out to the public already after the parliamentary majority and the government came in the standing committees to the agreement on the legislative provisions to be adopted1. This statement applies either to the parliaments of the Russian Federation, where the discussion of the questions at the Parliament’s meetings is preceded by a long period of their careful preparation in the standing committees, the position of which in most cases leads to the taken at these meetings final decisions. Conditionally it is possible to allocate six forms of activities of the parliamentarians in the standing committees: 1) the participation in the meetings of the standing committee; 2) the activities onsite; 3) the performance of the duties of the Chairman, the Deputy Chairman and the Secretary of the standing committee; 4) the activities of deputies in the subcommittees; 5) the activities in the working, drafting groups; 6) the presentations of the reports and supplementary reports on behalf of the Standing committee at a meeting of the Parliament. Another form of activities of a parliamentarian is his participation in the work of factions and other deputy groups2. The presence of deputy groups in the parliaments is nothing but an open, advanced form of pluralism. «The members of the parliament in the vast majority of cases are direct appointees of the most influential political parties. The political parties... are nothing but the political organization of a certain class of people who have rallied to the common defense of their class interests under the flag of the political program respective to their interests, and exactly on the basis of this program the election of the candidates of any political party as the members of the Parliament are took place»3. 1



2



3



Ref.: Loquet P. Les commissons parlementaires permanentes de la Ve Républigue. Paris, 1982. 13 p. At the Legislative Assembly of the Altai Territory, the deputies elected in single-mandate electoral districts, elected as the members of the candidates lists have the right to form other deputy associations. The composition of the permanent deputy associations, other than factions, shall include at least seven deputies (Cl. 7, Art. 7 of the Law of the Altai Territory of December 4, 2000 No. 76-ZS «On the Status of a Deputy of the Legislative Assembly of the Altai Territory»). The same provision contains the Law of Moscow of July 13, 1994 No. 14-60 «On the Status of a Deputy of the Moscow City Duma» (Cl. «з» Art. 7). K.Takhtarev. From representation to democracy. St.-Petersburg., 1907. 32 p. 157

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Along with the objective conditions that determine the presence of deputy groups of party membership in the parliaments, in the constitutional law science the negative effects of this phenomenon were noted. Thus, in the literature of the end of the XIX century was stated that representative institutions are the place of origin of the new ruling class — the politicians. «Politicians are necessary for the organization of «people’s will», as well as to associate purely social problems with the politics, rousing the population by their propaganda. The dominance of political parties is manifested primarily in the instilling the people of one’s private will, and opinion. Parties are trying to catch the voters in a word, finally suppressing their own will by the party’s propaganda. After the elections, the party become imperious sovereign, and people continue to be voiceless and powerless until the new «St. George’s Day» of the ballots submission»1. A faction is the association of the parliamentarians elected under the party lists of candidates, which was admitted to in the distribution of deputies mandates in the Parliament. A parliamentarian, included in the faction can be a member of that political party, a member of the party list of candidates by which he was elected to the Parliament. A parliamentarian may be a member of only one faction. A deputy, elected as a member of the candidates list admitted to the distribution of the deputy mandates in the legislative (representative) body of the subject of the Russian Federation, has no right to defect from a faction to which he belongs. The decisions of the factions are usually adopted by the open ballot. A faction may take a decision on secret ballot. A common form of activities of the parliamentarians, are the parliamentary hearings, which the Chambers of the Federal Assembly are carried out on matters within their competence. But in reality, at the parliamentary hearings the matters of competence of the Council of Federation and State Duma, listed in Art. 102 and 103 of the Constitution of the Russian Federation are not considered, but the issues associated with their legislative activities2. Such orientation is due to the fact that the main form of activity as the Parliament so the parliamentarians is lawmaking. The Council of the State Duma, committees, commissions and factions can be the initiators of the parliamentary hearings. The parliamentary hearings may be held together by the committees and the commissions of both Chambers of the Federal Assembly of the Russian Federation, as well as with the parliaments of foreign countries on the matters of competence of the Parliament. 1 2



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L.A. Tikhomirov. Social and liberal democracy. Moscow, 1896. 44–45 p. Ref.: I.V. Hrankin. Parliamentary Law of the Russian Federation. Moscow, 2010. 198 p.

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According to the Regulation of the State Duma of the Federal Assembly (Art. 63) the information about the topic of parliamentary hearings, time and place of their holding is transferred to the media. The parliamentary hearings may be attended by the representatives of the media, public associations and community. The composition of the persons invited to the parliamentary hearings is determined by the committees, commissions of the Parliament that organize these hearings. According to the results of the parliamentary hearings the recommendations and other documents can be accepted through the approval of a participated majority of the parliamentarians of the parliamentary hearings. Recommendations of the open parliamentary hearings may be published and placed in the Foundation of electronic information resources of the State Duma. Recommendations of the parliamentary hearings on the drafts of the state programs of the Russian Federation, including federal purpose-oriented programs, draft of the main directions of the Budget Policy of the Russian Federation, draft of the main directions of the Tax Policy of the Russian Federation, draft of the main directions of the Customs and Tariff Policy of the Russian Federation and the draft of the Budget prognostication (draft amendments to the Budget Prognostication) of the Russian Federation for the long term in the event of sending of such parliamentary hearings to the Government of the Russian Federation. Another form of work of a parliamentarian is work with the voters. Because of this, the electoral district is intended to be the center of activity of a parliamentarian among the voters. The distribution of the State Duma deputies to the regions of the Russian Federation is executed by the factions in accordance with the procedure defined by the Regulation of the State Duma. A deputy of the State Duma shall communicate with the voters of that territory, which the regional group of deputies was corresponded to, in the composition of which he was elected to the State Duma. An important source of information on public opinion of the population, available violations of the legality is the reception of the voters, consideration of their appeals. A parliamentarian has a duty to consider the appeals of the voters, personally conduct the reception of the citizens in the manner and time established by the regulations of the State Duma, but not less than once every six months. He shall inform the voters about his activities at the meetings, as well as through the media. For this, a deputy is provided with the appropriate days for communication with the voters in the manner determined by the regulation of the Parliament or its Chamber. In the regions of the Russian Federation, the basic laws of which establish the imperative and semifree mandate of a parliamentarian, the parliamentarians have to report to the voters. The report of a parliamentarian to 159

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the voters is one of the most important indicators of a close connection of the parliaments regions of the Russian Federation with the voters and the citizens and form of control over their activities. In addition, the basic laws of the regions of the Russian Federation establish the possibility of early dismissal of the parliamentarians. The study of the content of the laws on the dismissal of parliamentarians allows to allocate requirements to the procedure of its carrying out, namely: 1) the right of dismissal cannot be used to limit the independence and initiative of a parliamentarian, create obstacles of its lawful activities; 2) the right of dismissal is executed in cases where it is impossible or depleted other means of ensuring the activities of a parliamentarian, relevant to the law; 3) the voting on the dismissal of a deputy both with any elections or referendum is not permitted; 4) the collective nature of the execution the right to initiation of dismissal of a parliamentarian. Thus, the number of the signatures of the voters required to initiate a voting to dismissal is usually from 0,5 percent to 1 percent of the district voters; 5) if under the results of voting on the dismissal a parliamentarian has not been recalled, a following voting on the dismissal of this parliamentarian is possible only after 12 months from the day preceding the voting. The list of requirements to the procedure of a parliamentarian dismissal will be advisable to supplement by the principle of equality of the campaigners of a parliamentarian recall. The recalled parliamentarian and the members of the initiative group should have equal rights and duties to protect their rights and legitimate interests1. The Constitutional Court of the Russian Federation in the case on the constitutionality of certain provisions of the Constitution of the Altai Republic and the Federal Law «On the General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation» held that the grounds for dismissal may be only illegal activities that is a specific offense, the fact of which is established by this person in the proper procedure. Since the dismissal of a parliamentarian is a constitutional responsibility, so its ground should be recognized as a violation of norms of constitutional law. In respect to the problem under study, we should talk about a violation of the requirements of laws on the status of deputies of the Parliament of the regions of the Russian Federation. Thus, further improvement of the laws of the regions of Russia is possible by attaching as the base of dismissal, a violation of the law’s require1



160

Ref.: L.A. Nudnenko. The constitutional and legal status of a deputy of the legislative body in the Russian Federation. St-Petersburg, 2004. 386 p.

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ments on the status of deputies, which implies the ability to dismiss the said representatives for the systematic, guilty non-fulfillment the rights and obligations under relevant laws. At the same time the fact of non-fulfillment by a parliamentarian of his duties in the Parliament of the region of the Russian Federation shall be confirmed by the relevant authority. Fact of non-fulfillment by a parliamentarian of his duties in the electoral district may be confirmed by collecting a number of signatures of the district voters established by law1. For the effective execution of the rights and obligations, a parliamentarian is provided with the guaranties — the conditions and means to ensure the actual execution and comprehensive protection of his rights and obligations. In contrast to the rights of a parliamentarian, which can be both individual and collective (implemented together with other parliamentarians in the group), the guaranties of a parliamentarian’s activities have an individual character that is implemented in relation to a particular parliamentarian or specific parliamentarians. The guaranties of a parliamentarian’s activities can be subdivided into two main groups — general and special. General guaranties can be both legal and non-legal. The legal guaranties of a general nature include established by the constitutional and legal norms political and economic conditions and prerequisites that provide the actual feasibility of execution by a parliamentarian of his rights and responsibilities. The non-legal guaranties of a parliamentarian’s activities of general nature include social and psychological, spiritual and moral conditions. Social and psychological conditions necessary for the effective implementation of parliamentarian’s activities, is the existence of civil society, which recognizes the value of the parliamentarism, supports it, actively participates in the execution of own political rights on the nomination of candidates for deputies, their election, control over their activities. In the Russian Federation, a civil society is in the development stage. The general tendency is a critical attitude of citizens and the current civil society to the existing at the present stage of development of Russian parliament and its members. The spiritual and moral conditions that determine the effectiveness of a parliamentarian’s activities are associated with an increase of the level of education, culture of the members of civil society, including the legal culture, the role of which, among other things, is to resist the desire of the country to rise above the law and statutes. The dependence of the implementation of representative democracy, activities of the parliamentarians 1



The Judgement of the Constitutional Court of June 7, 2000 No. 10-P // FA Russian Federation. 2000. No 25. Art. 2728. 161

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from the moral qualities of the people was pointed out at the beginning of the XX c. by P.I. Novgorodtsev. The scientist wrote that to achieve the democracy are needed that people were ready «to control themselves, conscious of their rights and respecting the rights of others, understanding their duties and capable of self-restraint. Such a height of political consciousness is never given at once; it is acquired during long and harsh experience of life»1. Today we can say that the «obedience and acquiescence of a person in cases of violation of his rights is a characteristic feature of social justice, which we have inherited from the centuries-old anti-personality traditions»2. The special legal guaranties are the conditions and remedies of ensuring and protecting of a parliamentarian’s rights and responsibilities established by the legal norm. By the purpose, the legal guaranties of a parliamentarian’s activities can be divided into social, organizational, guaranties of the personal safety of a parliamentarian. Let consider them on the example of a member of the Council of Federation and a deputy of the State Duma. The social guaranties are intended to ensure conditions for the development of a parliamentarian as an individual. The social guaranties of the activities of a member of the Council of Federation, a deputy of the State Duma include: –– the monthly cash consideration, the cash incentives and the other payments stipulated by the Federal law; –– the annual paid leave; –– the enrollment of time to exercise the powers of a parliamentarian into the length of the civil service; –– the medical, health resort service of a parliamentarian and members of his family; –– the provision of pensions, including pensions to family members of a parliamentarian in case of his death; –– the compulsory state insurance in case of illness or disability during the performance by a parliamentarian of his powers; –– the housing and social support of the State Duma parliamentarian, which has no residential area in Moscow. Organizational guaranties of the activities of a parliamentarian are intended to assist a parliamentarian by the state bodies, enterprises, institutions and their officials in the exercise of rights and duties.

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P.I. Novgorodtsev. About the social ideal // Power and Law. From the history of Russian legal thought. Leningrad, 1990. 548 p. Human Rights / Editor-in-Chief E.A. Lukasheva. Moscow, 1999. 187 p.

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Among the organizational guaranties of a parliamentarian’s activities is the duty of the executive authority of the regions of the Russian Federation to provide vehicles, separate protected placement, equipped with furniture, communications and the necessary office equipment including personal computers connected to the network of relevant government bodies, printers, copying machines. The organizational guaranties of a parliamentarian’s activity include: the ability of reception as a priority by the officials; the right to receive and disseminate information; the right to act on the issues of own activities in the state media in the manner prescribed by the law; the right to refuse to give evidence; issuance of the diplomatic passport for the entire term of office; the ability to have assistants for working in the Parliament and in the electoral districts. The guaranties of personal safety of a deputy are executed to provide freedom and autonomy of a deputy as a member of the Parliament, a representative of the voters and civil society, his legal protection against any illegal external interference. The main purpose of guaranties of personal safety of a parliamentarian is to ensure freedom of expression in the implementation of the deputy powers. Immunity is primarily the idemnity of a parliamentarian from judicial or non-judicial (administrative) proceedings for judgments and opinions expressed by him in the execution of his duties. This provision does not apply to cases when a parliamentarian expresses public humiliation and slander, the responsibility for which is provided by the Federal Law1. Therefore, in the legal literature the following advice to the parliamentarians was given: «Who does not have a sufficient intelligence and composure to express his opinion within legal bounds with the required openness and independence in all matters within the range of competence of the Chamber, as well as to express his disapproval within decency and what is permitted, shall keep silent and is limited by the submission of a voice. But the one, who maliciously wants to offend the other, does not deserve mercy»2. Immunity assumes that the deputies without the consent of the Parliament or its relevant Chamber cannot be subject to criminal or administrative responsibility imposed in judicial procedure; detained, arrested, searched (except in cases of catching red-handed) or questioned; person1



2



The current legislation on the status the deputies does not contain the concept of parliamentary immunity. Relationship constituting its essence, governed by rules of law on the immunity of a deputy. The Constitutional Court of the Russian Federation also identifies these concepts. Ref.: Comments to the provisions of the Constitutional Court of the Russian Federation. Moscow, 2001. 474 p. Cited by: A.A. Zhizhilenko. On the irresponsibility of People’s Representatives. 17 p. 163

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ally inspected, except when it provided by the Federal law to ensure the safety of others. The immunity of the parliamentarians extends to the occupied the residential accomodation and office vehicles, communications equipment, documents and luggage belonging to them, and to their correspondence. In the case of opening of a criminal investigation or the initiation of administrative proceedings provided for in respect of a parliamentarian the administrative liability imposed by the court, the inquiry agency or the investigator within three days shall inform the Prosecutor General of the Russian Federation, who within a week after receiving of the notification from the inquiry agency or the investigator shall inform the relevant Chamber of the Federal Assembly of the deprivation of immunity of a member of the Council of Federation, a deputy of the State Duma. After the end of the inquiry, preliminary investigation or the proceedings of the case of an administrative offense, providing the administrative responsibility imposed by the court, the case cannot be brought to a court without the consent of the relevant Chamber of the Federal Assembly. A parliamentarian cannot be subject to criminal or administrative liability for the expressed opinion, position expressed in the vote, and the other actions corresponding to the status of a deputy, including at the end of his term of office. This provision does not apply to cases where a deputy made public humiliation, slander and so on, responsibility for which is provided by the Federal Law. These types of guaranties of the parliamentarian’s activities are closely related and interact. Forms of such interrelations are different. The most common of them are: 1) the implementation of some guaranties of a parliamentarian’s activities is the basis for the realization of other guaranties. Thus, the use by a parliamentarian of communications equipment on parliamentary activities published in state bodies, local government bodies, commercial organizations located in the territory of the Russian Federation, being an organizational guaranty, accompanied by the payment for communications services from the Parliament’s means — financial guaranty of a parliamentarian activities; 2) the failure to implement of one guaranty of a paliamentarian’s activities may give rise to another. Therefore, in violation of the inviolability of a parliamentarian there are grounds to prosecute the guilty citizens, officials for this offense, that is to use the judicial guaranty of the rights of a parliamentarian; 3) the violation of some guaranties directly affects all other guaranties of a parliamentarian’s activities. For example, the absence of social guaranties of a parliamentarian’s activities could complicate the use of institutional guaranties. 164

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§ 3. The factions and other associations in the parliamentary bodies of the Russian Federation

As forms of work of the legislative (representative) body, deputy associations are formed from the deputies in order to carry out joint activity and express common position on the matters considered by the legislative (representative) body. The functioning of parliamentary associations, especially parties, serves as one of the most important guaranties of political rights of citizens intended to adequately reflect the beliefs of the voters. Taking into account that the said associations are typical only for representative bodies, their activity is an indicator of the effectiveness of th e parliamentary body as a whole. Different kinds of deputy associations existing in the Russian Federation can be divided into deputy factions, deputy-working groups. At the same time at the level of the regions of the Russian Federation, the legislator does not put restrictions on the formation of other types of deputy associations. The work of parliamentary bodies also formed on the basis of the formation of committees and commissions, operating as on a permanent so on a temporary basis. Being, similar to deputy association, a form of organization of deputy activities in the legislative (representative) body, committees and commissions still cannot be considered as a kind of deputy association, primarily due to the purpose for which they were established. Unlike the deputy associations, committees and commissions are intended not only to serve the interests of the deputies and the expression of their will, but also to harmonise the work of the legislative (representative) body. In addition, the deputies do not form committees and commissions independently and on their own initiative, as they are an integral part of the structure of a parliamentary body. In the legal literature it is stated that, although the Constitution of the Russian Federation does not directly mention the factions in the structure of the supreme representative body, the consolidation of the principles of multiparty system, ideological and political diversity in its text to a large extent laid the foundations of the legalization of this phenomenon1. Legal acts relating to the activities of the relevant associations are characterized by their compact and uniformity at different levels of legal regulation. In particular, the federal legal regulation of the parliamentary associations of the State Duma includes the Law on the status of a member of the 1



Ref: T.A. Anchutkina. Deputy Associations in the legislative bodies: Thesis of dissertation. ... Doctor of Law. Moscow, 2003. 16 p. 165

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Council of Federation and the status of a deputy of the State Duma, Federal Law «On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of the Citizens of the Russian Federation» and the Regulations of the State Duma. With respect to deputy associations (especially, factions) of the regional representative bodies the provisions of the Federal Law «On the General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation» are applied to the extent that establish the foundations of the status of the legislative (representative) body of the subjects of the Russian Federation. Concretization of these regulations is implemented by the laws on parliamentary activities, as well as regulations of the legislative bodies of the regions of the Federation. Regarding the feasibility of the adoption of the special laws of the Federation on deputy associations, it should be recognized that the establishment of the rights, duties of deputy associations, the relationship between themselves and other structures of the legislative bodies of the regions of the Russian Federation, the procedure of their activity should remain the prerogative of the act regulating the activities of the legislative body1. Each deputy association acts on the basis of own approved provision regulating the activity procedure of factions, as well as the formation and functioning procedure of other deputy associations. The provision on the faction, other deputy association is an internal document of the faction, other deputy association, which establishes rules for the joint activity of deputies, included in the faction, another deputy association. We emphasize that the provision on the faction, other deputy associations should not contradict the federal laws, the laws of the region of the Federation. Given that all of these associations consist of deputies, their activity is largely based on the legislation regulating the status of the deputies. This feature is clearly seen in the legislation of the regions of the Federation: the rules governing the matters of activity of deputy associations are enshrined in the laws of the regions of the Russian Federation on the basis of organization of legislative (representative) bodies, or on the status of deputies of these bodies. In addition, after a significant change in 2007 of the procedure of formation of the deputy body of the State Duma of the Federal Assembly of the Russian Federation from the text of its Regulations were excluded the 1



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Ref. e.g.: E.A. Izmailova. On the question of the creation and termination of deputy associations (faction) in the legislative body of the Russian Federation // Government and local self-government. 2009. No. 5. 25 p.

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terms «deputy associations» and «deputy groups». In addition, in the Regulations were clarified the concept of the factions and its status, and recognized the duty of deputies elected on the party list to be included into the appropriate faction1. Speaking about the array of legal regulation of the procedure of establishment and activity of deputy associations, the researchers have noted that if on the federal level the legal regulation of the parliamentary activities of the parties are carried out mainly by the regulations of the Chambers and only in some aspects by the federal laws, then in the significant part of the regions of the Russian Federation, on the contrary, there is a tendency to the legislative regulation of the legal status with their further detailing in the regulations of the legislatures2. The issue of the parliamentary activity of deputies, the mechanism of formation and functioning of their associations is one of the most important and controversial not only in modern legal, but in political science. In this regard, the key question becomes a formulation of substantial characteristics of the related concepts: «deputy association», «faction», «deputy group», etc. The current legal regulation understands the faction as the union of the deputies of the legislative (representative) body, which includes: –– all the deputies elected as the part of list of candidates admitted to the distribution of deputy mandates in the legislative (representative) body; –– the deputies elected on single-mandate or multi-mandate electoral districts; –– the deputies who have changed their party affiliation as a result of termination of activities of a political party, from which they were elected. Thus, the basis for the formation of factions in the parliamentary bodies of the Russian Federation is laid down a party (political) criteria3. In other words, Russia belongs to one of the vast majority of world states with a mul1



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E.A. Volkova. Constitutional and municipal law. 2010. No. 5. P. 63. It should be noted that the named author takes the position according to which the restriction of opportunities for the creation of the deputy associations of the State Duma restricts the constitutional rights of citizens (in this case, the deputies) to the association. The opposite view is also expressed in the scientific literature. For example, according to H.N. Komkova, reducing of the types of deputy associations in the State Duma to factions is a positive moment and more acceptable in terms of increasing the impact of deputy activities. Ref. H.N. Komkova. The proportional electoral system and equality of factions in the Russian parliament // Constitutional and Municipal Law. 2006. No. 7. 33 p. Ref. S.E. Zaslavsky. Parliamentary activities of the political parties: the experience of the regions of the Russian Federation // State building and law. Issue I (VII). 2004. Ref. for details: S.I. Bychenko. The status of political parties as the regions of the parliamentary process // Bulletin: collection of scientific papers. Rostov-on-Don, 2002. Issue 4. 392–406 p. 167

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tiparty system, applying this criterion1. At the same time, at the level of legislative (representative) bodies of the subjects of the Russian Federation, there are some features of the formation of factions, associated with the establishment of their numerical criteria. Thus, in a number of regions of the Russian Federation, this criterion is applied as an additional to party criteria (Moscow Region, the Republic of Adygea, Bryansk region). This situation is largely due to the scarcity of the members of parliamentary bodies of the region of the Federation, and accordingly, a small number of the members of deputy associations. In this case, the regional legislator has established for the deputy associations, who have not reached the required number of members to create the faction, guaranties enabling them to form another deputy association (usually a deputy group), almost equating it to a faction status. The formation of a faction in the legislative (representative) body, usually is carried out on the basis of its registration. The study of the regulations of various legislative (representative) bodies of the Russian Federation indicates the absence of clearly established term of the faction registration since the beginning of work of the newly elected legislative (representative) body2. At the same time, a certain period of such registration is set as the only guaranty. With regard to the termination of the faction’s activity, the legislation of the Russian Federation provides two general grounds under which the named deputy association ceases to carry out its activity within a legislative (representative) body: 1) the end of the term of office of the legislative (representative) body or its chamber; 2) the termination of activity of the respective political party in connection with its reorganization or liquidation. However, in respect to those of legislative (representative) bodies of the region of the Russian Federation, which use a numerical criterion for the formation of factions, another ground for termination of the activity of these factions is the reducing of the number of their members in comparison to the legally provided limits. So, for example, according to the Regulation of the State Council — Khasa of the Republic of Adygea (Cl. 4 Art. 29) if the number of members of deputy association becomes less than the number set forth by the Regulation, than after a month from the date determination of this fact, the State 1



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Ref. for details: Essays on parliamentary law. The Parliaments of the world. Moscow, 1991. P. 255–257. It should be noted that legally were not established the appropriate sanctions for the deputy association, which has not been registered for a minimum period since the beginning of work of the legislative body of a new convocation.

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Council — Khasa of the Republic Adygea upon the recommendation of the Chairman of the State Council — Khasa of the Republic of Adygea considers the issue on termination of the activity of the deputy association. Regulations of the legislative bodies of the regions of the Russian Federation as a whole does not include the right of the factions to dissolve themselves1. However, this right is contained in the provisions of the factions in the legislative bodies of various regions of the Russian Federation. We are of opinion that, however, an indication of the provision on the faction about the presence of other grounds for termination of its activity (such as self-dissolution, etc.) is insufficient in itself. Given that such provisions should not conflict with federal and normative legal acts of the Russian Federation and its regions, regulating the status of the factions in the legislative (representative) body of the corresponding level, it can be concluded that these grounds cannot be applied in practice as long as they will not be guaranteed by law. In this regard, an approach, which is used in Penza and Tyumen regions can be considered as the most preferable. In particular, the Regulation of the Legislative Assembly of Penza region (p. 3 Art. 21) recognizes the right of any deputy association to adopt the decision on the termination of its activities. As rightly been noted in the legal literature, the procedure for establishing the lists of candidates in the elections assumes that the deputies elected in the lists of candidates are members or supporters of the political party, which has nominated them. It is expected that further activities of these deputies in the legislative (representative) body will be dictated by the purposes and objectives of the political parties, as a part of the lists of candidates of which the deputies were elected.2 Named principle reflects the close relationship of the party affiliation of the deputy and his work as a part of the deputy association, as the faction is a perfect illustration of the approach of the legislator, according to which the termination of membership of a deputy in a political party automatically recalls him of his faction. 1



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Thus, in Cl. 5.5 of the Regulation on the deputy association «Faction «Communist Party of the Russian Federation» of the Regional Duma of Volgograd a deputy faction stops its activities in connection with the adoption of the relevant decision. (App. on March 1, 2009 by the decision of the deputy faction of «Communist Party of the Russian Federation» of the Regional Duma of Volgograd // Official site of the Regional Duma of Volgograd. URL: http://volgoduma.ru Ref.: S.Yu. Zyuzin, A.B. Yudina, Yu.A. Kartashova, A.A. Podsumkova. Comment to the Federal Law of October 06, 1999 No. 184-FZ «On the General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation» (itemized) / Editor-in-Chief N.I. Vorobyov // Legal reference system «ConsultantPlus». 169

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In general, the current legislation does not contain a direct reference to the fact that the resignation from the faction affects the party affiliation of the deputy. However, the presence of the express prohibilion on the right of such resignation under a threat of termination of deputy powers shows that this situation is considered as a kind of violation, and can be considered by the party as the ground for resignation from the party. In addition to the above it should be noted that the legislator establishes the rule according to which in case of liquidation and reorganization of the party a deputy included to the corresponding faction does not lose the deputy mandate, in case of his switchover to a different faction in connection with the change of a party affiliation. In our opinion, this rule, though indirectly also evidences of the presence of feedback: membership in the party may be terminated as a result of the change of faction by the deputy. The role of deputy associations, primarily factions, can largely be inferred by the range of powers, which is entitled to them in the process of parliamentary work. As the number of such powers is large, the reasonable proposals for their systematization are often made in the legal literature. Thus, a scientific approach to the study of the legal nature of the activities of the deputy associations in the legislative bodies is the separation of the powers in several parts: –– the powers for the formation of the governing bodies of the Parliament, or organizational powers (making proposals for candidates of the chairman of the parliamentary body and its deputies, etc.); –– the powers in the sphere of lawmaking process (the right of legislative initiative, participation in the consideration of draft laws and regulations, etc.); –– the competence in respect of matters within the competence of the parliamentary body (participation in the mechanism of parliamentary control, interaction with other authorities, etc.); –– the powers for the preparation and decision of procedural issues (speeches at the meetings, proposals on the drafts of non-regulatory decisions and work schedule of the parliamentary body, etc.); –– the other powers. The last part means activity of the factions and deputy groups on the participation in election campaigns at various levels, lobbying of draft laws and regulations1. In some cases, the factions in the legislative (representative) bodies of the regions of the Russian Federation have a large range of powers than the factions of the State Duma. 1



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Ref. for more details: T.A. Anchutkina. Deputy Associations in the legislative bodies of state power: Thesis of dissertation. ... LL.D. Moscow, 2003. 95–144 p.

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For example, at the federal level the factions are not recognized as the subject of the legislative initiative, while at the same time, a number of regions of the Russian Federation have entitled deputy associations of this right, which is stipulated by the constitutions (charters) of the regions of the Russian Federation and does not conflict with the Federal law «On the general principles of organization of legislative (representative) and executive bodies of the regions of the Russian Federation». In addition, the legislation of the regions of the Russian Federation admits deputies which do not belong to any faction to work alone (the Republic of Tatarstan). It should also be noted that the factions are one of the elements of the mechanism of parliamentary control. Thus, representatives of political parties, formed by the citizens on the ideological and political grounds, are able to carry out the policy of their associations, and hence protect the interests of a certain part of the population in the Parliament, to influence the adoption of the most important government decisions, the policy pursued by the state in general. However, the effectiveness of such an influence increases at a time when the representatives of the parties unite in the parliamentary factions — special forms of parliamentary associations1. However, this power has not yet been executed by the representatives of the parties in full. For example, for today, a clear regulation of procedures for parliamentary control has not yet developed because the content of the factions’ right to submit annually the official list of the matters to the State Duma on the government’s activities remains uncertain2. In this regards, in the legal literature the relevance of clearer guaranties of activities and responsibility of a number of deputy associations in the Parliament3 is highlighted. In addition to the factions in the parliamentary bodies other deputy associations, in particular deputy groups, working groups, and others can be established. Unlike factions other deputy association do not be distinguished by close relationship with party affiliation of the deputies. Creation of such deputy associations as deputy groups, blocks, clubs, etc. is allowed only in the framework of the legislative (representative) bodies. It is also significant that, unlike the factions, activity of other deputy associations may be carried 1



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In the same. P 16. Ref. for more details: R.M. Dzidzoev. Institute of the annual reports of the Russian Government on the result of the activities and issues of parliamentary accountability of the Government // Constitutional and Municipal law. 2009. No. 21. 23–25 p. Ref.: A.H. Ovsepyan. The concept and features of parliamentary control (theoretical characteristic) // Constitutional and Municipal law. 2011. No. 3. 24–29 p. 171

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out both on a permanent and temporary basis. Thus, a regional legal regulation is differed by much more freedom to organize the activities of the deputy corps. Analysis of the existing legal regulation not always allows to observe the differences that laid the basis for distinguishing the different types of deputy associations. Often, in the parliaments of the regions of the Federation along with factions the formation of such associations as deputy groups is allowed. At the same approaches used by legal acts of the different regions of the Federation to defining the essence of deputy groups, do not match in many respects. A similar approach until 2007 had been contained in the Regulations of the State Duma of the Federal Assembly of the Russian Federation. It should be mentioned that the current version of the Regulations of the State Duma allows creating of so-called interfactional working groups and temporary working groups from the members of the committee, commission and other State Duma deputies, representatives of bodies of state power and other organizations. However, their functioning on a temporary basis is intended to organize the work the factions, as well as internal departments of the federal parliament, so these associations cannot be considered as a full replacement of the deputy groups. Often in the regions of the Federation another approach is used. Thus, Regulations of Magadan Regional Duma also defines a deputy group as association consisted of at least three deputies of the Duma with no membership in factions. However, factions or deputy groups are not equalized in the rights due to the inability of the latter to participate in the preliminary preparation and examination of the organizational issues of the Magadan Regional Duma’s activities. A similar situation has happened in the Rostov region. The Regulations of the Legislative Assembly of Kaluga region, allowing the possibility of the formation of other deputy associations in addition to factions, does not define the characteristics of their functioning, leaving the decision on this matter to the discretion of the associations. At this, the principle of equality in the work of all types of self-organization of the deputies is not set forth by this Regulation. A variety of approaches to the differentiation of different types of deputy associations in general does not contradict the current federal legislation. Federal Law «On the general principles of organization of legislative (representative) and executive bodies of the regions of the Russian Federation» has no strict requirements on the mandatory creation of other deputy associations, as well as equality of their rights and obligations in relation to factions. 172

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It should, however, be taken into account that the legal acts of the regions of the Russian Federation, as a rule, other deputy associations the deputies elected from single-mandate electoral district, as well as those defected from the faction in connection with the termination of the respective political party activities. Moreover, in most cases, the condition of formation of such association of the deputies is the availability of the required number of deputies (three deputies — in the Belgorod Regional Duma, the Murmansk Regional Duma, five — in the State Council of the Republic of Adygea, the Legislative Assembly of the Trans-Baikal Territory, seven — in the State Council of the Republic of Tatarstan etc.). Thus, the range of rights of deputies, with the membership of factions and the deputies outside any of the factions may vary within the framework of the legislative (representative) body. In addition, other deputy associations are characterized by different variants of legitimization of their activities. For example, the question on registration of the most common type of deputy associations — deputy groups — in different regions of the Federation is solved in different ways: they are provided as a notification (the Republic of Tatarstan, the Omsk Region) and permissive procedure of registration (the Rostov Region, the Saratov Region) and in some cases — there is no requirement for registration (the Kaluga Region, the Republic of Kalmykia). Speaking of the other, in addition to the factions, associations of deputies it should be noted that in 2012, the Regulations of the State Duma of the Russian Federation was amended. According to these amendments the work of deputies can be carried out through the formation of interfactional working groups. This represents relatively new approach of self-organization of the deputies largely eliminates the problem of «escapement» of deputies withing one faction and improves effectiveness of their interaction. However, with all the positivity of such innovations in the process of functioning of the deputy body at the federal level the legal regulation of the activities of these working groups is far from perfect. This is due, primarily, to the presence of a very narrow range of powers. These associations do not have the rights of factions, committees and commissions, their activity in general has a recommendatory character, and their establishment is carried out in the permitting procedure. In addition, if a interfactional working group is required to obtain information from state bodies and other organizations; this group is drawn to the appropriate committee for the submission of a request. Thus, the independence of these associations is minimized. In conclusion, it should be noted that, as an essential element of democracy, the activities of parliamentary bodies are inevitably connected to the development of democratic principles of competition between the 173

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deputy associations, defending different political and legal concepts. In this regard, the quality of the functioning of the various branches of the public power, efficiency of lawmaking process, and the relationship of civil society and the state is largely based on the realization of interests of their associations by the representatives of the population in the legislative (representative) bodies. The scope of competence of the various parliamentary associations determines their role in settlement of key issues related to the functioning of the federal and regional parliamentary bodies. Thus, the present legal regulation of the status of deputies in the factions often gives them a number of advantages compared with the deputies belonging to other deputy associations or who are independent of any of them. Thus, it is not always possible to determine the criterion for distinguishing of deputy associations’ variety in parliamentary bodies. Currently, the legislative (representative) bodies of the regions of the Federation, in contrast to the federal, are endowed with greater freedom in determining the capacity of deputies to form deputy associations. In addition, the Constitution of the Russian Federation does not consider the deputy association as a whole as the subject of legislative initiative1 in the State Duma, while the legislative (representative) bodies of a number of the regions of the Russian Federation provide them with this right. The above said gives reason to believe that the legal regulation of the main characteristics of the status of deputy associations, systematization of their elements, and clarification of the relevant framework of categories will be further improved by the legislator.

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It should be mentioned that there is no direct ban on the introduction of such initiatives, but the statistics of the State Duma legislative activity indicates the absence of this kind of attempt by factions.

Chapter IV. Parliamentary Procedures

§ 1. The definition and types of parliamentary procedures

The parliamentary procedures, representing the necessary organizational and procedural basis for the functioning of the Parliament to increase of its efficiency, play a significant role in determining the place of the Parliament in the state mechanism, together with the competence of the Parliament and other characteristics of its constitutional and legal status. Appropriate procedures help to identify the real possibilities of legislative (representative) body of the state and the individual parliamentarians on the execution of their rights and fulfillment of their duties. The scientific literature indicates that a public authority as a systemic phenomenon that reflects the diversity of public interests of various sectors of society expressed in the activities of political parties, relies on parliamentary mechanisms — one of the organizational forms of exercising their powers, which largely predetermined by parliamentary procedures1. In this regard, the Parliament acting in the system of separation of powers is a professional, works on a permanent basis in strict compliance with parliamentary procedures2. Ultimately, the effectiveness of any parliamentarian’s activity depends on many factors, primarily on the scope of his powers (the substantive aspect), but to a lesser extent the effectiveness of the activities of the collective representative body, as is the Parliament, due to the fact, how appropriate and democratically his work is organized (procedural, processual aspect)3. It should be noted that the problems of parliamentary procedures in Russia acquired a special significance in the context of studies of nationwide and regional parliaments, that is the Federal Assembly of Russia (its Chambers) and the legislative (representative) bodies of regions of the Russian Federation4. 1



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Ref.: V.V. Polyansky. The parliamentary procedures and the party and public interests // Parliamentary procedures: problems of Russia and foreign experience: Proceedings of the conference. Moscow, March 21–23, 2002 / Editor-in-Chief S.A. Avakyan. Moscow, 2003. 103 p. Ref.: V.A. Lebedev. The problems of the organization and activities of legislative and executive power in the Russian Federation. Moscow, 2000, P. 112–113. Ref.: M.N. Lazareva. The parliamentary procedures in the Czech Republic and Russia: comparative analysis//Constitutional and Municipal law. 2009. No. 3. Ref.: The parliamentary law of Russia / Editor-in Chief I.M. Stepanova, T.Y. Khabrieva. Moscow, 1999. 175

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However, so far the issues of the content and essence of the parliamentary procedures, optimal catalogue, species characteristics and form of consolidation continue to be open to question. Legislative procedures, their nature and purpose are defined in the literature in different ways. Many authors in a varying degree consider parliamentary procedures as the established by legal norms methods, ways and procedures of functioning of the Parliament with a view to giving it a legal value1. At the same time a parliamentary procedure is not limited to the legislative process, although it takes the plenty of time and the activities of the Parliament. Such procedures also include all other practices and methods of parliamentary activity, for example, the procedure of formation and functioning of the committees of the Parliament; the procedure of conduction of the plenary sessions, introduction and discussion of deputy inquiries; the procedure of introduction and ratification of international treaties and agreements and their denunciation; the procedure of the formation of the internal bodies of the Parliament and many others2. It is important to note that to specify the set of the parliamentary procedures; the researchers often use the category of «the parliamentary process», which refers to the system of parliamentary procedures that is a set of relationships and actions arising in the process of realization of rights and obligations by the entities of these relationships3. Proper procedural support of activities of the legislative (representative) body is necessary for the rational organization of the work of the Parliament or its Chambers; formalization of the process of realization of the party and the public interests in the Parliament; the effective execution of the Parliament of its legislative, representative, control functions and powers under the existing constitutional and legal mechanism of execution of the public power based on the principle of checks and balances. The parliamentary procedures are quite diverse and numerous, each of them is aimed at ensuring the execution of legislative and other powers of the Parliament. At the same time the content of parliamentary procedure itself is affected by numerous factors, including the electoral system, the 1



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Ref.: L.A. Sharnina. On the question of conditionality of parliamentary procedures by the form of government // Parliamentary procedures: problems of Russia and foreign experience: Proceedings of the conference. Moscow, March 21–23, 2002 / Editor-in-Chief S.A. Avakyan. Moscow, 2003. 52 p. Ref.: M.A. Mogunova. The state law in Finland. Moscow, 2005. 222 p. Ref.: M.S. Salikov. The parliamentary procedural right — subsector of the constitutional procedural law // Parliamentary procedures: problems of Russia and foreign experience: Proceedings of the scientific conference (Moscow, March 21–23, 2002) / Editor-in-Chief S.A. Avakyan. Moscow, 2003. 34, 35 p.

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presence of chambers in the Parliament, the party system, the nature of relations between the authorities, the functions of the Parliament1. Many researchers classify the parliamentary procedures, depending on the issues on which the Parliament is entitled to make decisions2. In this regard, the selection of the parliamentary procedures should be based on the classification of the functions and powers of the parliaments. Such classifications, being studied in detail in the works of Russian and foreign scientists, differ from each other. For example, some authors believe that the main function of the Parliament in the system of the separation of powers is to execute the legislative power (includes the procedure of disposition of the state treasury, that is the adoption of the state budget and control over its execution) and to control the activities of the executive bodies3. Other authors among the most important functions of parliaments call lawmaking activity, representation and control4. In the foreign literature it is substantiated the presence of the such functions of the Parliament as: representation of the nation; political formation of the will; lawmaking; the formation of a government and control over its activities; the formation of other authorities5. In general, taking into account the matters of the Parliament’s activities as the basis of classification of the parliamentary procedures, the researchers conventionally divide these procedures into two groups6. The first group includes the procedures for exercising the powers of the Parliament, reflecting its essence as a representative, legislative and control body. In this case, we are talking about procedures used in: the representation of the nation; political formation of will; lawmaking; relations with the public authorities of the federal and regional levels; formation of other bodies of the state; the execution of control functions; addressing the matters of social and economic structure and finances, the legal status of citizens, their organizations and associations, security and defense of the state, the organization of external relations. 1



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Ref.: I.P. Okulich. The legal nature of parliamentary procedures in the Russian Federation // Constitutional and Municipal law. 2008. No. 12. Ref.: D.A. Kovachev. Parliamentary procedure: concept, types, regulation (on the experience of foreign countries) // Bulletin of the Inter-Parliamentary Assembly. 1994. No. 4. 192 p. Ref.: Constitutional (state) law of foreign countries: textbook. Vol. 1–2 / Editor-in-Chief B.A. Strashun. Moscow, 1999. 447 p. Ref.: I.A. Alebastrova. Constitutional law of foreign countries: textbook. Moscow, 2001. 203 p. Ref.: Yu.P. Uryas. Mechanism of state power of Germany. Moscow, 1988. P. 63; G. Klein, W. Zeh. Bundestag // Public Law of Germany. Vol. 1. Moscow, 1994. 155 p. Ref.: I.N. Ryazantsev. Parliamentary procedures: classification and types // Representative power — XXI century: Laws, comments, concerns. Vol. No. 2. 2005. 20 p. 177

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The second group is less numerous, but very important, because in the using of these procedures, the Parliament exercises all its powers. In this case, it refers to the procedures used in solving issues related to the formation of their own organization and activities. There are also different approaches to the classification of parliamentary procedures in accordance with above mentioned ground and the allocation of the following types of parliamentary procedures1: –– ensuring the effectiveness of the legislative process (the procedure of the realization of legislative initiative, procedure comprising the legislative process); –– related to the execution by representative bodies of their supervisory powers (budget monitoring, inquiries and interpretations, parliamentary investigation); –– related to the interaction of the Parliament with the President and executive branch (the consent of the President to the appointment of the Chairman of the government, the expression of non-confidence to the Government); –– providing a mechanism of extra-judicial liability of officials before the legislative authority; –– related to the status and the procedure of activity of the Parliament (parliamentary questions, the deprivation of immunity of a deputy of the State Duma and a member of the Council of Federation); –– ensuring the implementation of the internal regulations, the procedure of establishment and functioning of the internal bodies of the Parliament and its Chambers. Special attention is given to the consideration of the types of parliamentary procedures relating to the execution of the legislative function of the Parliament (its Chambers) and the providing of the legislative process. For example, it is possible to classify the parliamentary procedures required for the execution of the legislative powers of the Parliament, taking into account the stages of the legislative process2. In this regard, the allocation of parliamentary procedures in the legislative process in the Russian Federation on the basic and additional stages is allowable. The main stages: initiation; preliminary review; adoption. Additional stages: approval of the draft law, rejected by the Council of Federation of the Russian Federation; approval (overcoming a presidential veto) of the State Duma and the Council of Federation of the Federal Assembly of the Russian of the draft law rejected by the President of the 1



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Ref.: I.P. Okulich. The legal nature of parliamentary procedures in the Russian Federation // The Constitutional and Municipal law. 2008. No. 12. Ref.: I.N. Ryazantsev. Name of works was mentioned above. 21 p.

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Russian Federation; approval by the regions of the Russian Federation the Law on Amendments to the Constitution of the Russian Federation. Also the classifications of the parliamentary procedures not only with the matters of the Parliament’s activities (its Chambers), but also with the other grounds are possible. Thus the classification of parliamentary procedures by the number and diversity of participants, is interesting: interparliamentary (legislative, supervisory, organizational); inter-institutional (President — Parliament — Government — Judiciary); federal and institutional (Federal Assembly — Parliamentary institutions of the regions of the Federation, local self-government); in the field of public relations and legal liability (Parliament — elective body, electorate)1. Using this classification, it is possible to identify two groups of parliamentary procedures in Russia. The first group represents only the Parliament’s activities: the parliament itself; its Chambers separately (with two-chamber parliament); its Chambers together; parts of the Parliament (committees, commissions, deputy groups). The second group is the procedure of inter-institutional character: the joint activity of the Russian Parliament, the President of the Russian Federation, the Russian Federation Government, the judiciary; the interaction of the Federal Assembly, the authorities of the regions of the Federation, local self-government; in the field of public relations and legal liability (Parliament — elective body, electorate); interaction of the Federal Assembly with the parliaments of other countries and international organizations; interaction of the Federal Assembly with the legal entities — residents (for example, the media, public associations). Parliamentary procedures may be different in terms of tasks to be solved by the chambers of the parliaments at the execution of common functions2. Thus, the representative nature of the Federal Assembly has different manifestations. The State Duma personifies the direct representation of the population, and the Council of Federation — a special form of representation — territorial. If the State Duma is associated with the symbol of direct democracy, the Council of the Federation defines the role of a spokesperson for the interests of the population, mediated by the state authorities of the Russian Federation. In this regard, the Council of Federation is imposed the following objectives: the elimination of the differences between the federal center and the regions of the Federation; ensuring the participation of the Federation in the development of federal 1



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Ref.: Parliamentary Law of Russia: textbook / Editor-in-Chief I.M. Stepanova, T.Y. Khabrieva. Moscow, 2000, 14 p. Ref.: I.N. Ryazantsev. Parliamentary procedures in the Russian Federation: theory and practice questions: Thesis of dissertation... Doctor of Law. Moscow, 2005, 42–45 p. 179

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policy; coordination of the interests of the federal authorities and the authorities of the Federation. Each of these objectives requires its own procedures, which are not typical for the State Duma. At the same time within the framework of the State Duma, for example, the procedures of formation and activities of deputy associations are implemented and the Council of Federation conducts the Days of the Council of Federation in the regions of the Russian Federation. In general, it is important to note that the parliamentary procedures largely determine the procedure of execution of functions and powers of the Parliament and thus have an impact on the independence of the Parliament and the quality of adopted by it legal decisions, including legislative acts. So naturally, that issues relating to the forms of expression and ways of regulating of parliamentary procedures remain among the most topical problems of the parliamentary bodies and the parliamentary development as the most important democratic values. In world practice, rules of parliamentary procedure are established by the following regulatory acts: the constitution, the laws and regulations of the supreme representative body, acts of the parliament, customs. However, the main parliamentary procedures in Russia are established in the Constitution of the Russian Federation, constitutions (charters) of the regions of the Russian Federation, the laws of the Russian Federation and the regions of the Russian Federation, Regulations of the Parliament or each of its Chambers. At the same time the least binding and rarely recognized source of parliamentary procedure is a custom, which is broadly referred as a rule regulated performance of rights of a deputy, chamber, its structural division, established in the course of work of this parliament and that do not have a formal consolidation. The primary normative legal acts determining the basis for the organization of parliamentary activity, is the Constitution of the Russian Federation, constitutions (charters) of the regions of the Russian Federation. They regulate the next matters: the procedure of convocation and dissolution of the supreme representative body of the state (its regions); powers of the Parliament; guaranties of its independence in the execution of these powers; relations with other public authorities and others. Establishing of the rules on the parliamentary procedures in the laws is a relatively new method of fixing of such procedures in the world practice. Currently, in Russia a question on adopting a special law on the Federal Assembly with fixing in it all the necessary procedural norms is often debated. However, many researchers recognize that the adoption of such a law would violate the principle of separation of powers and will make the Parliament more dependent on other public authorities, which could influence the possibility of its organization and functioning. 180

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It is important to point out that the legal regulation of parliamentary procedures in the regions of the Russian Federation is very diverse. Moreover, among the laws of the regions of the Federation, as a rule, there are the laws that determine the legal status of the supreme representative bodies in the regions of the Federation; the main matters of the parliaments activities, the procedures of their activities, as well as the structure of the parliament; procedures for the execution of certain parliamentary powers. In turn, the bylaws of the regions of the Federation taking into account the subject of their regulation can be divided into four groups: establishing general procedures of the Parliament’s activities of the region of the Federation; establishing procedures of the activities of the bicameral Parliament of the region of Federation; determining individual parliamentary procedures for the execution of its functions and powers; establishing procedures concerning the organization of own activities. The most important source of legal regulation of parliamentary procedures is the Regulations, adopted by the Parliament (its Chamber). The constitutional-legal doctrine differently estimates a value of the Regulations and its content1. Due to the fact that the Regulations of the Federal Assembly are adopted by the resolutions it is justifiably to understand under the regulations of the chambers of the federal parliament the normative legal acts containing norms of a procedural nature that are subject to compulsory execution by the chambers, political parties, internal bodies of the Parliament‘s chambers, as well as all other public authorities, cooperating with the chambers of the Federal Assembly on the basis of the Constitution of the Russian Federation2. It is noteworthy that some of the regions of the Russian Federation granted the Regulations with the status of the law of region of the Federation3. Further work on the improvement of the parliamentary procedures involves firstly the increasing the role of the regulations as a comprehensive regulatory basis for the activities of representative bodies, the creation of a single model of the parliamentary procedures at the federal level and the level of the regions of the Russian Federation, as well as the tightening of the liability for breach of procedural rules of the Parliament and its Chambers. 1



2 3



For details, Ref. §3 Ch. I of this textbook. Ref.: Parliamentary Law of Russia: Textbook / Editor-in-Chief I.M. Stepanova, T.Y. Khabrieva. Moscow, 2000, 15 p. E.g., the Law of the Republic of Mordovia of March 10, 1995 No. 61-1 «On Regulations of the National Assembly of the Republic of Mordovia», the Law of Saratov Region of March 29, 2001 No. 13-ЗСО «On the Saratov Regional Duma». 181

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§ 2. The ways of functioning of legislative bodies in the Russian Federation

The parliamentary procedures that ensure the organizational and procedural basis for the Parliament’s functioning, have different manifestations, which can be classified depending on their method of fixation, as well as their degree of importance and need for the execution of the basic functions and powers of the Parliament and its Chambers. In this connection the main, it should be emphasized the primary procedures established as a rule in the Constitution of the Russian Federation, the constitutions (charters) of the regions of the Russian Federation, and derivative, secondary procedures provided by law and regulations of the Parliament’s Chambers. The primary procedures should include, in particular, the session, meetings of the chambers, activities of committees and commissions, parliamentary hearings. Under parliamentary procedure is defined as secondary issues, parliamentary questions, round tables, etc. These forms of organization of activity are inherent to the chambers of the federal Parliament and the parliaments of the regions of the Federation. At this, it seems most reasonable to study the appropriate procedures mainly in way of comparison of the used forms of parliamentary activities in the chambers of the Federal Assembly, and taking into account the experience of the regulation of the relevant procedures in the regions of the Russian Federation. The sessions. The main method of functioning of the Parliament in Russia, as in the most other countries, is a sessional procedure of the organization of its activities related to the presence of the constitutionally prescribed period during which the Parliament is competent to perform its functions. The Constitution of the Russian Federation has set forth the permanent nature of the activity of the Federal Assembly (Art. 99), which is opposed to the former «socialist» practice, when the central representative bodies of state met at the sessions for a few days a year and actually upheld the decisions of the governing bodies of the communist parties. At this, the term «session», which determines the duration of the active work of legislative bodies, has not been set forth in the Federal Constitution, despite the fact that the existence of a constitutionally prescribed period of the Parliament’s activity is an important guaranty of implementing the principle of the separation of powers and independence of the Parliament. At the federal level, this term is used to in some federal laws (such as the Federal Law of December 27, 2005 No. 196-FZ «On the Parliamentary Investigation of the Federal Assembly of the Russian Federation») and the 182

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regulations of the Chambers of the Federal Parliament, which set forth the duration of the sessions and the procedure of their conduction. In turn, at the level of the regions of the Russian Federation the provisions on the parliamentary sessions are consolidated not only within the legal and procedural regulations, but also in the constitutions (charters) of regions of the Federation. In particular, the Constitution of the Republic of Dagestan determines that the People’s Assembly of the Republic shall meet in session, usually at least once a month, except during the parliamentary recess. At this, in the legislation of the regions of the Federation, there are several definitions of the session of the legislative (representative) body. Basically, such definitions provide such understanding of the session as: a period during which the Parliament exercises its functions; the general meeting of the deputies; the form of the Parliament’s work, consisting of plenary sessions, the meetings of organizational and governing bodies, deputy associations, deputy work, and the work of the Parliament’s machinery or its Chamber. The Regulations of the Chambers of the Federal Assembly provide that the Council of Federation and the State Duma meet in regular spring and autumn sessions (Art. 41 of the Regulation of the Council of Federation, Art. 40 of the Regulation of the State Duma). In the first half of the year a spring session is held, in the second — an autumn. The average duration of the sessions of the Council of Federation is: spring — 24,5 weeks, autumn — 14,5 weeks. In the State Duma: spring — 23 weeks, autumn — 16,5 weeks. Accordingly, the start and end dates of regular sessions of the Council of Federation do not coincide with the start and end dates of regular sessions of the State Duma. In the Council of Federation, a spring session starts in January and ends in July, the autumn one lasts from September to December; in the State Duma, a spring session begins in January and ends in June, the autumn one begins in September and ends in December. The interval between sessions is used by the parliamentarians for the rest and called as the parliamentary recess. It should be noted that the legislative (representative) bodies power of the regions of the Russian Federation also work in the sessional way. Typically, sessions are convened as needed, but at least twice a year. In particular, in accordance with Art. 16 of the Regulations of the National Assembly (Il Tyumen) of the Sakha Republic (Yakutia) the session is the period in the calendar year during which deputies exercise parliamentary activities in forms as provided for in the legislation. Thus, a spring (from January, 15 to June, 30) and autumn (from September, 10 to December, 25) sessions are distinguished. According to the Regulations of the Magadan Regional Council of the People’s Deputies, the sessions of this Regional Council are the main or183

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ganizational and legal form of the Council’s activities, providing a collective discussion and adoption of appropriate decisions. It is noteworthy, that the session of the Regional Council of People’s Deputies are convened by its Presidium at least three times a year (Art. 7). At that, the extraordinary session of the Regional Council may be convened at the initiative of the Presidium of the Council, Chairman of the Regional Council, one of the standing committees (commissions), as well as at the request of at least one-third of the deputies of the Regional Council (Art. 8). It is very significant that during the session various organizational forms of the work of the parliament (its Chambers), their commissions and committees and other parliamentary bodies and internal structures are used. Among them: the meeting of the parliament, its chambers, internal parliamentary bodies and structures, parliamentary and public hearings, «government hours», meetings, round tables, conferences and other events that promote the efficiency of legislative activities and the execution of other inherent to the Parliament functions and powers. Thus, the State Duma holds the meeting of the Chamber, the Council of the State Duma, committees and commissions of the State Duma, the parliamentary hearings, the work of the deputies of the State Duma in the committees and commissions, in fractions, as well as with voters is carried out. As a rule, two weeks of each month in that period are intended for the meetings of the Chamber and the Council of the State Duma, one week — for the work of the deputies of the State Duma in the committees, commissions and factions, one week — for the work of the deputies of the State Duma deputies with voters. During the elections of the deputies of the State Duma of a new convocation (from the day of the appointment of the elections until the election day) two weeks of each month are allocated for the work of the deputies of the State Duma with voters. During a session of the Council of Federation the meetings of the Chamber, Council of the Chamber, the committees of the Council of Federation, the parliamentary hearings, the days of the Council of Federation of the Federal Assembly of the Russian Federation in the regions of the Russian Federation are held, a work of the members of the Council of Federation in the regions of the Russian Federation is conducted. During a session of the State Council of the Republic of Tatarstan the meetings of the State Council, its Presidium, committees, commissions and working groups, parliamentary hearings are held, the work in the deputy associations is conducted1. 1



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Ref.: Decision of the State Council of the Republic of Tatarstan of February 26, 2004 No. 2632 «On the Regulation of the State Council of the Republic of Tatarstan» // The Bulletin of the State Council of Tatarstan. 2004. No. 2 (P. I).

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The meetings. The necessary form of the Parliament during the session is the regular plenary meetings, during which the Parliament through its Chamber executes the basic functions and powers. The procedure of the meetings of the Parliament (their Chambers) in Russia, as a rule, is determined by their regulations. Thus, according to the regulations of the Chambers of the Federal Parliament, the meetings in the State Duma are held on Tuesdays, Wednesdays and Fridays (Art. 40), and in the Council of Federation — as far as necessary, but at least twice a month (Art. 41). It should be noted, that the meetings are also held within the functioning of the internal structures of the Parliament’s Chamber, for example, committees, commissions, Chamber’s council. At this, the additional or extraordinary meetings of the State Duma and the Council of Federation can be assigned. Thus, the Regulations of the State Duma mentions two kinds of extraordinary meetings of the Chamber that are held during the session and between the sessions. Extraordinary meetings of the State Duma shall be convened by the Council of the State Duma, at the request of the President of the Russian Federation, at the request of the faction, supported by at least one-fifth of votes of the total number of deputies of the State Duma, or at the proposal of the Chairman of the State Duma. There also may be held additional meetings of the State Duma. Currently, the decision on amending the Regulations of the State Duma is adopted concerning the holding by the decision of the Council of the State Duma of its additional meetings in the days other than Tuesday, Wednesday and Friday. According to the Regulations of the Council of Federation, its extraordinary meetings may be convened at the proposal of the President of the Russian Federation, Chairman of the Council of Federation, Council of the Chamber, committee, and commission of the Council of Federation on matters of their reference or on a proposal of not less than one-third of the members of the Council of Federation . Proposal of the committee of the Council of Federation should be supported by at least one-fifth of the members of the Council of Federation. The procedure of the formation of the State Duma requires the mandatory regulation of the first meetings of the Chambers, while due to the specifics of formation of the Council of Federation and the constant renewability of its composition is not necessary to regulate the beginning of its functioning. Thus, according to p. 2 Art. 99 of the Constitution of the Russian Federation the State Duma shall hold its first meeting on the 30th day after the election. The President of the Russian Federation may convene a meeting of the State Duma before this term. In particular, at first time he used this constitutional right, when convened the first session of the State Duma, elected on December 2, 2007, not on January 1, 2008, that is, on 185

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the 30th day after the election, but on December 24, 2007 due to the prolonged winter holidays. According to the tradition, established in Soviet times and now been restated in the Constitution of the Russian Federation, the first meeting of the State Duma shall be opened by the oldest deputy (p. 3 Art. 99 of the Constitution of the Russian Federation). Thus, it is possible to agree with the opinion that «highlighting of the universal human feature — the age of the deputy — shows the respect for parliamentary traditions, emphasizes the unity of the deputy body and partially mitigates the sharp political struggle that takes place during the first meetings of the new Parliament»1. It should be noted that according to the Regulation until the election of the Chairman of the State Duma, or his deputy, the meetings of the State Duma can be conducted in turn by the representatives of the factions under the agreement between them. The first post-election meeting of the lower Chamber of the Parliament is of great importance, as there shall be announced the names of deputies to the State Duma according to the list submitted by the Central Election Commission of the Russian Federation, the deputies take the oath, internal bodies of this Chamber are elected. In particular, by a majority vote of an open vote of all deputies of the State Duma the Audit Commission of the State Duma, the Interim Committee of the State Duma Committee on Regulations and Organization of the work of the State Duma, the Interim Secretariat of the State Duma are elected. Also the Chairman of the State Duma and his deputies are elected. With respect to the Council of Federation it should be mentioned that its governing bodies (Chairman of the Council of Federation and his deputies) are elected for a term of office as members of the Council of Federation — the representative of the legislative (representative) and executive state authority of the region of the Russian Federation. Meetings of the Chambers of the Parliament, as a rule, are conducted openly and covered in the media. At the same, the meetings may be attended by the representatives of the state bodies, the public associations, the academic institutions, the experts and the other professionals to provide the necessary information and opinions on the issues. The members of the media in terms of their accreditation are present at public meetings of the Chamber. Constitution of the Russian Federation allows to conduct the closed meetings in the federal Parliament in the cases provided by the Regulations of the Chamber. Thus, according to the Regulations of the State Duma the initiators of closed meetings can be, in particular, the person presiding at the meeting of the State Duma, the Council 1



186

Ref.: Scientific-practical comment to the Constitution of the Russian Federation / Editor-in-Chief V.V. Lazarev. 2nd ed., Amended and reviewed. Moscow, 2001, 492 p.

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of the State Duma, the President of the Russian Federation, the Committee of the State Duma or the deputy association, the Chairman of the State Duma, the Prime Minister of the Russian Federation. In turn, the Council of Federation can adopt such a decision, if the proposal of it is made by the President of the Russian Federation, Prime Minister of the Russian Federation, person presiding at the meeting of the Chamber, committee, commission of the Council of Federation, or a group of members of the Council of Federation of no less than 25 people. The decision to hold a closed meeting in the State Duma is adopted by a majority of votes of the deputies of the State Duma and in the Council of Federation — by a majority of votes of the members of the Council of Federation, who took part in the voting, but not less than one-fourth of the total number of votes of the members of the Council of Federation. In addition, the requirement to nondisclosure of the content of closed meetings and the information constituting a secret protected by law are established. In particular, in accordance with the Regulations of the Council of Federation the content of a closed meeting of the Council of Federation, the information constituting state or other secrets protected by law, may be used by members of the Council of Federation only for their activities in the Council of Federation. In turn, the information constituting a state or other secret protected by law, discussed at a closed meeting of the State Duma is not subject to disclosure and dissemination. The Chairman at the meeting of the relevant Chamber informs about the rules concerning the conduction of a closed meeting and the prohibition on dissemination of information that constitutes state or other secrets protected by law, on the degree of secrecy of this information and warns of the responsibility for its disclosure. Thus, the Law of the Russian Federation of July 21, 1993 No. 5485-I «On the State Secret» stipulates that the members of the Council of Federation, the deputies of the State Duma are warned about nondisclosure of the state secret, which become known to them as a result of the execution of their duties, and bringing them to responsibility in the case of disclosure of such information. The safety of a state secret in such cases is guaranteed by the federal law that establishes the responsibility of these persons. In order to ensure the rational use of meeting time the regulations of the parliaments (their chambers) usually establishes the explicit procedure of discussion of the considered issues. For example, in the State Duma the duration of reports, co-reports and concluding remarks is determined by the Chairman at the meeting in agreement with the rapporteurs and co-rapporteurs, but should not exceed 15 minutes for the report, 5 minutes for the co-report and 5 minutes for concluding remarks, unless otherwise provided by the Regulations. 187

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In the Council of Federation the duration of a report, co-report, concluding remarks and speech of a candidate for elected (appointed) position is determined by the Chairman under the agreement with the rapporteur, co-rapporteur, candidate for elected (appointed) position, but should not exceed 15 minutes for the report, 10 minutes for the co-report, 5 minutes for concluding remarks and speech of a candidate for elected (appointed) position. In the case of exceeding the time limit, the Chairman of the meeting warns the speaker, and then has the right to terminate him (the State Duma), or mute the microphone at the podium for speeches (the Council of Federation ). The Regulations of the Chambers of the Parliament establish a list of matters subject to extraordinary or priority consideration at a meeting of the Chamber. For example, in the State Duma messages and addresses of the President of the Russian Federation; draft laws introduced as urgent by the President of the Russian Federation or the Government of the Russian Federation; drafts of the federal laws on the federal budget for the next fiscal year and planning period; and others shall be considered for priority. Priority consideration at a meeting of the Council of Federation shall be subject to the message and request of the President of the Russian Federation; a number of drafts acts of the Council of Federation on matters relating to the reference of the Council of Federation, in accordance with the Constitution of the Russian Federation; the draft laws of the Russian Federation on amendments to the Constitution of the Russian Federation, approved by the State Duma; federal laws adopted by the State Duma and subject to compulsory consideration by the Council of Federation; and etc. The Constitution of the Russian Federation does not contain any rules regarding the quorum for purposes of recognition of the Federal Parliament Chambers meetings as eligible, however, the relevant requirements are contained in the regulations of the Chambers, in accordance with which their meetings are considered to be competent, if the majority of the members of each Chamber attends them respectively. It should be noted that the assessment of the number of the chambers of the Federal Assembly and rules of quorum became the subject of consideration by the Constitutional Court of the Russian Federation1. In the decision, the Court noted that the constitutional characteristics of the Federal Assembly as a body of popular representation includes: a possible incompleteness of its members should not be significant, otherwise the representative character of the body is questioned. 1



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Ref.: The Judgement of the Constitutional Court of the Russian Federation of April 12, 1995 No. 2-P on the Interpretation of P. 3 Art. 103, P. 2 and 5, Art. 105, P. 3 Art. 107, P. 2, Art. 108, P. 3 Art. 117 and P. 2 Art. 135 of the Constitution of the Russian Federation.

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At the same time, the ensuring of the representative character of the supreme legislative body of the Russian Federation is to establish in the Constitution the number of seats in the Council of Federation and the State Duma. The Court had given an explanation regarding the content of the constitutional category of «the total number of deputies». First of all, the interpretation of this category only as the number of deputies, actually elected to the State Duma except for those whose powers at the time of voting are terminated in the prescribed manner may lead to the fact that the State Duma will be authorized to take the federal laws and other important for the state acts on the matters of its reference, even if in fact lose its representative character as a result of vacancy of a significant part of seats; such laws and other acts will be illegitimate. Acts of the Parliament should embody the interests of the majority of society, not only of the Parliament. The Russian Constitution did not set requirements on the numerical composition of the elected parliamentarians, in which the Chambers of the Federal Assembly has the right to exercise their constitutional powers. In these terms, the representative character of the State Duma and the legitimacy of the adopted laws can be guaranteed only by interpretation of the concept of «the total number of deputies» as their constitutional number — 450 deputies of the State Duma. The identification of the concepts of «the total number of deputies» and «the number of the de facto elected deputies» does not meet the requirements of the Constitution of the Russian Federation to guaranty the representation of the people in the Federal Assembly, and may hinder the implementation of the constitutional provisions on the organization of the Federal Assembly and the legislative process. To determine the number of heads at the meeting, the registration through electronic cards is used. The registration of the members of the Council of Federation, attending the meeting of the Chamber, is made before the beginning of each morning and afternoon meeting and before the beginning of the closed meeting of the Chamber (before voting the additional registration may be carried out under the decision of the Council of Federation); and the registration of the deputies of the State Duma — after each break of the meeting of the Chamber. It should be noted that each deputy (member) of the Parliament is obliged to take part in the meetings of the respective Chamber of the Parliament and commissions, the member of which he is. The member of the Council of Federation before the beginning of the meeting of the Council of Federation, committee (commission) of the Chamber, the member of which he shall inform the Chairman of the Council of Federation, the Chairman of the committee, commission of inability to be presented for a good cause at a meeting of the Chamber, committee, commission. On the impossibility to attend the meeting of the 189

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Chamber, a deputy of the State Duma shall inform in advance a faction leader or the Chairman of the committee or commission, or the Chairman of the State Duma. The minutes and transcripts are kept at the meetings of the Chambers of the federal Parliament. The minutes shall be signed by the presiding person of the meeting. The transcripts of the open meetings of the Chambers shall be published and placed respectively in the Fund of electronic information resources of the State Duma and the structural department of the Council of Federation as a secret document. The main organizational form of functioning of legislative (representative) bodies of the regions of the Russian Federation is also their meetings. Federal Law of October 6, 1999 No. 184-FZ «On the General Principles of Organization of Legislative (Representative) and Executive Bodies of the Subjects of the Russian Federation» (hereinafter — the Federal Law No. 184-FZ) is identified some of the conditions of conduction of such meetings in the regions of the Federation, being the guaranties of the effective functioning of the parliaments of the regions of the Federation. So, according to Art. 4 of the Federal Law No. 184-FZ the legitimacy of the meeting of the legislative (representative) body of the region of the Russian Federation is determined by the law of the Russian Federation (p. 11), and therefore the decision on this matter is the exclusive reference of the regions of the Federation. At the same time, there is a reservation that the meeting of the legislative (representative) body of regions of the Russian Federation cannot be considered valid if less than half of the elected deputies attend it. In practice of the parliaments of the regions of the Federation two models of regulation of eligibility are mainly used of the meetings. In some regions the quorum for the recognition of the competence of the parliamentary session is set as the majority of the established number of deputies (the Republic of Adygea, the Chechen Republic, the Volgograd Region), in others (the Republic of Dagestan, the Rostov Region, the Krasnodar and Stavropol Territories) — not less than two-thirds of the established number of deputies. Also, p. 1.11 of Art. 4 of the Federal Law No. 184-FZ determines that the quorate meeting of legislative (representative) body of the region of the Russian Federation shall be held not less than once every three months. It should be noted that the frequency of conduction of meetings in various regions of the Federation — at least once a month (the Republic of Adygea, Dagestan), at least once in two months (the Republic of Kalmykia), at least once a quarter (the Krasnodar Territory). In other parliaments of the regions of the Federation the meetings are held regularly at various intervals — at least once a month (the Volgograd Region), at least once in two months (Rostov region, Stavropol territory), 190

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at least once a quarter (the Karachay-Cherkess Republic). In addition to the regular meetings the parliamentary regulations of the regions of the Federation provides the possibility for the convocation of extraordinary, contingency, organizational meetings. The first meeting is convened after the elections to the Parliament of the regions of the Federation. According to p. 11.1 Art. 4 of the Federal Law No. 184-FZ the newly elected legislative (representative) body of the subject of the Russian Federation shall hold its first meeting in the period provided by the Constitution (Charter) of the region of the Federation. At the same time, such a period may not exceed 30 days from the date of the election of the parliament of the region of the Federation as a competent body. At this meeting, the election of the Chairman of the legislative (representative) body, his deputy (deputies), the formation of internal bodies — committees (commissions) and the election of the heads of the latter is made. For example, in the Parliaments of the Rostov Region, the Chechen Republic the Council is formed; in the People’s Assembly of the Republic of Dagestan — the Presidency. In accordance with p. 12 of Art. 4 of the Federal Law No. 184-FZ the meetings of the legislative (representative) body of the region of the Russian Federation are public, except the cases established by the federal laws, the Constitution (Charter) of the region of the Russian Federation and the laws of the region of the Russian Federation, as well as by the regulation or any other act adopted by this body and established the procedure for its activities. In this regard, the most important principle of the meeting of the parliaments is their openness and transparency. It is important to note that the most of the regulations has regulated process of conducting a closed meeting (e.g., Art. 50 of the Regulations of the Chechen Republic, Art. 26 of the Regulations of the Legislative Assembly of the Krasnodar Territory, etc.). It is also stipulated a conduction of so-called extraordinary meetings of the parliaments (their chambers) of the regions of the Federation in the event of extraordinary situations: imposition of the state of emergency and martial law, mass violations of public order, epidemics, natural disasters and other situations that require urgent decisions (for example, Art. 31 of the Regulations of the Volgograd Regional Duma). The particular attention should be paid to a number of procedures implemented in the course of meetings of the Parliament (its Chambers) conduction. The procedure for debate. An important form of activity of the parliament (its chambers) is the debates, which are the discussions by parliamentarians of the draft laws and other acts carried out in the manner prescribed by the regulations of the parliament (its chambers). 191

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The procedure of debates is used both at the plenary meetings and during the implementation of certain parliamentary procedures, such as the parliamentary hearings, as well as process of activity of the internal bodies of the parliament (its chambers). In some cases, the restrictions on the conduction of the debates are imposed. In particular, during the «government hour» in the federal parliament debates are not held. With the debates procedure a principle of free discussion of the considering issue is implemented, which is guaranteed the hearing of persons who have different points of view (the principle of alternation of the speakers), with the right to introduce the texts of speeches in the minutes. Currently, the main practical problems of using the procedure of debates are: the discipline of debates, return to a decided issue, the right to an additional speech in the case of changing the content of the issue of agenda. In particular, the regulations of the Chambers of the federal Parliament has a rather strict approach to the establishment the procedure for the conduct of debates. For example, restrictions in the federal Parliament relate to both the number of speakers and speaking time during the discussion of an issue (for example, no more than 7 minutes in the State Duma, and no more than 5 minutes in the Council of Federation ). The institute of the parliamentary hearings. The conduct of parliamentary hearings has become the traditional form of activity of the federal Parliament. According to p. 3 of Art. 101 of the Constitution of the Russian Federation the Council of Federation and the State Duma may conduct the parliamentary hearings on matters of their reference, which are expressed in the discussion of important issues in the Chambers with the involvement of the public. In this regard, the parliamentary hearings, as a rule, are usually open to the media, public associations and community. At the same time the conduction of the closed parliamentary hearings is allowed. For example, in the State Duma the decision on the conduction of the closed hearings is adopted by the Council of the State Duma on the proposal of the committee, commission of the Chamber. At the same time, the President of the Russian Federation, the Plenipotentiary Representative of the President of the Russian Federation in the State Duma, the Chairman of the Council of Federation, the members of the Council of Federation, the Prime Minister of the Russian Federation, the members of the Government of the Russian Federation, the Plenipotentiary Representative of the Government of the Russian Federation in the State Duma, the members of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Chairman of the Accounts Chamber of the 192

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Russian Federation, the Vice-Chairmen of the Accounts Chamber, the auditors of the Accounts Chamber, the Human Rights Commissioner of the Russian Federation, the Prosecutor General of the Russian Federation, the Chairman of the Central Election Commission of the Russian Federation shall have the right to participate in public and in closed parliamentary hearings. The matters of the parliamentary hearings may be different, but shall remain within the reference of the Chambers. In practice, the parliamentary hearings is usually focused on the problems of legislative activities, which is due to the essence of the parliament as a legislative body. It should be noted that the need for a parliamentary hearings conduction arises from many federal laws. So, according to Art. 5 of the Federal Law of July 10, 2002 No. 86-FZ «On the Central Bank of the Russian Federation (Bank of Russia)» the State Duma holds parliamentary hearings on the activities of the Bank of Russia with the participation of its representatives. In accordance with Art. 32 of the Federal Constitutional Law of February 26, 1997 No. 1-FKZ «On the Human Rights Commissioner of the Russian Federation in the Russian Federation», the High Commissioner for Human Rights in Russia has the right to appeal to the State Duma with a proposal to hold parliamentary hearings on violations of human rights and freedoms, and, to participate in the ongoing parliamentary hearings directly or through his representative. Parliamentary hearings are conducted by the State Duma on the initiative of the Council of the State Duma, committees and commissions of the State Duma, and factions. In the Council of Federation, parliamentary hearings are held on the initiative of the President of the Council of Federation, Council of the Chamber, committees, commissions of the Council of Federation (on their matters of their reference), or a group of members of the Council of Federation of no less than 15 people. Parliamentary hearings begin with a short statement of the presiding person of the parliamentary hearings, who informs about the substance of the matter under discussion, its importance, the procedure of the meeting, the composition of the invitees. After that, the representatives of a committee, commission (in the State Duma — up to 20 minutes, in the Council of Federation — up to 30 minutes) make a report, and then the deputies (members) of the Chambers and the invitees participating in a meeting do the same. The speeches are followed by questions of all presented persons, as well as answers on them by the invitees. Speeches at the parliamentary hearings are held with the permission of the Chairman. Due to the fact that parliamentary hearings are both supporting procedures for the execution of the legislative function and the method of «soft» 193

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parliamentary control1, within such a procedure a particular interest make the hearings of the invitees and subsequent discussion of new ideas, concepts and opinions. As a rule, the deputies (members) of the Chambers get a lot more information that is important for the purposes of the adoption of laws that meet the current state of social relations. According to the results of the parliamentary hearings held by the State Duma, as a rule the recommendations for the discussed issue are adopted by the approval of the majority of the deputies, who took part in the parliamentary hearings of the State Duma. The Council of Federation on the results of the parliamentary hearings can adopt the recommendations and other documents approved by the committee (commission) of the Chamber responsible for the preparation and holding of parliamentary hearings or the Council of Federation itself. The Regions of the Federation also pay sufficient attention to the regulation of parliamentary (deputy) hearings. Moreover the institution of public hearings is widespread. These organizational forms of activity of the parliaments as a whole are aimed at a broad discussion of issues of public life and in many ways provide a unified approach to the decision of the raised problem. Thus, the Regulations of the Parliament of the Chechen Republic stipulates that the Parliament and its committees organize the parliamentary hearings on individual draft laws and top-of-mind issues of public life (Art. 66); the Regulations of the State Duma of the Stavropol Territory sets forth that parliamentary hearings are a form of activity of the Duma and its bodies with the aim of public discussion of draft laws, comprehensive and complete study of issues requiring legal regulation, or related to the implementation of the adopted by the Duma legislative and other normative legal acts (Art. 63). Regulations of the Moscow City Duma stipulates deputy and public hearings (Art. 47). Deputy hearings are held at the initiative of the subjects of legislative initiative under the frame of the meetings of relevant committees in accordance with the decisions of the Commission (working groups) of the Duma; during such hearings the deputies are familiarized with the arguments of the law drafters, expert opinions on the matters of their concernment. At conducting public hearings the opinion of the population of Moscow is taken into account. At that, the public hearings are realized by taking into account the public opinion at the citywide discussion of draft laws of Moscow. The draft law of Moscow may be brought out for the citywide discussion by the Duma, or by the mayor of Moscow. In this case, the draft is published in the bulletin specified by the Duma, with an indication of the deadline for 1



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submission of proposals (not less than one month from the date of publication) and addresses for sending the proposals. In general, parliamentary (deputy), and public hearings are open. The representatives of the public associations, scientific institutions, experts, specialists and other persons having special knowledge in a particular sphere may be invited to them. The hearings are open to the media and the public in a way that facilitates by the advance dissemination of information relating to the topic of hearings, time and place of their conduction. At the same time, in some cases, the closed parliamentary (deputy) hearings with a limited number of officials specified in the regulations of the legislative bodies may be held. As a result of parliamentary (deputy) and public hearings recommendations are made which serve the basis for the adoption of the relevant normative legal acts. The «government hours». Article 15 of the Federal Law of May 8, 1994 No. 3-FZ «On the Status of a Member of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation» provides the Chambers of the Federal Parliament with the right to invite at its meetings the members of the Government of the Russian Federation and other officials in order to obtain answers to the questions of the parliamentarians on a specific topic of discussion. At the same time, Art. 38 of the Federal Constitutional Law of December 17, 1997 No. 2-FKZ «On the Government of the Russian Federation» establishes the duty of members of the Government, at the invitation of the Federal Assembly, received at least than 5 days before the meeting, to attend the meeting and answer the questions from the members of the Council of Federation and the deputies of the State Duma. Thus, the «government hour» is the form of activity of the Chambers of Parliament whereby they interact with other governmental bodies. The parliamentarians listen to the members of the Government of the Russian Federation and other officials, ask questions and make specific decisions on the base of their results. Regulations of the Federal Assembly determine the procedure of preparation and holding of the «government hour». At the meetings of the State Duma, which are held usually on Wednesdays, the time for the answers of the Federal Minister (Federal Ministers), other officials to the questions of deputies of the State Duma is given. The Chairman of the State Duma invites to the «governmental hour» a Federal Minister (Federal Ministers), an Auditor of the Accounts Chamber of the Russian Federation, other officials no later than 10 days prior to the «government hour». It is noteworthy, that the Federal Ministers are invited to the «government hour» in their personal capacity. In this, the question on the need to introduce the procedure of the answers to the questions for the 195

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Chairman of the Government of the Russian Federation, who is now actually released from participation in this process, remains debatable. Such events in the State Duma are traditionally conducted twice a month. The plan of conduction of the «government hour» is affirmed by the Chamber, as a rule, on a recent meeting of its current session and sent to the Government of the Russian Federation and the Accounts Chamber of the Russian Federation. The Council of the State Duma includes the information on invitation of the officials to the «government hour» into a draft debate schedule of the State Duma for the next month in accordance with the plan of conduction of the «government hour» for the current session. It should be noted that in the end of 2009 p. 4 of Art. 41 of the Regulations was canceled that set forth what issues can be addressed at the «government hour»; now, specific topics of the «government hour» are specified in terms of conduction of the «government hour» in ordinary session. The deputies of the State Duma have the right to ask questions to the invited on the «government hour» Federal Minister (Federal Ministers), Auditor of the Accounts Chamber of the Russian Federation, and other officials. The duration of the question shall not exceed a minute, an answer to the question — 3 minutes. Following a discussion of questions within the «government hour», the representatives of the factions shall have the right to speak. The duration of speech of the fraction’s representative shall not exceed 5 minutes. Based on the discussion of questions within the «government hour», the State Duma may give an instruction to the appropriate committee to prepare a draft resolution of the State Duma. In turn, the Regulations of the Council of Federation contains four articles specifically dedicated to «government hours» (Art. 77–80). The Council of Federation has the right to invite to a meeting of the Chamber the members of the Council of Federation , the Chairman of the Government of the Russian Federation, the members of the Government of the Russian Federation, the Prosecutor General of the Russian Federation, the Chairman of the Central Bank of the Russian Federation, the Chairman of the Central Election Commission of the Russian Federation, the heads of other federal state bodies, the state authorities of regions of the Russian Federation and local government bodies, the heads of State Extra-Budgetary Funds for answering the questions. The responsible committee prepares a draft of the invitation of the Council of Federation, in which the questions are formulated, officials who shall answer them are defined, place, date and time of the «government hour». The responsible committee also propose the decision option by the Council of Federation on the matters considered within the «government hour». The decision to invite officials to a meeting of the Chamber to answer 196

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questions of the members of the Council of Federation shall be adopted by a majority vote of the members of the Council of Federation and documented as an extract from the minutes of the Council of Federation. The invitation of the Council of Federation is sent to officials not later than 5 days prior to a meeting of the Chamber to which they are invited. If the invited official cannot come to a meeting of the Council of Federation at the scheduled time, as agreed with the Chairman of the Council of Federation, he may come at another time or send to the meeting of the Chamber his deputy. «Government hour» is held on the first day of the next meeting of the Council of Federation. According to the decision of the Council of Federation, approved by at least one-quarter of the votes of all those present of the Council of Federation, the duration of «government hour» can be increased, but not more than 30 minutes. An invited official is provided with 15 minutes to speak on the merits of written questions addressed to him, and if necessary, by the decision of the Council of Federation he may be provided with five more minutes. The time to answer to oral questions by the members of the Council of Federation is established by the decision of the Chamber, adopted by majority of the votes of the members of the Council of Federation, who took part in the voting, but not less than one-quarter of the votes of the members of the Council of Federation. On the issues considered within addressed in the «government hour», the Council of Federation may take the following decisions: on appeal to the President of the Russian Federation; on appeal to the Government of the Russian Federation; on task to the Accounts Chamber of the Russian Federation; on the recommendation of the Government of the Russian Federation; on the recommendation of officials and bodies led by them; on the preparation of the parliamentary request of the Council of Federation; on taking into account an information provided by a visiting official. Upon review of the issues within the «government hour», the Chamber may encharge with a task the committee of the Council of Federation to prepare a legislative initiative of the Council of Federation, to hold parliamentary hearings, as well as other assignments in accordance with the matters of its reference. The Council of Federation may entrust the control of the execution of decisions of the Chamber on the issues discussed within the «government hour» to the responsible committee, authorized representatives of the Council of Federation. The committee of the Council of Federation, the plenipotentiary representative of the Council of Federation within the period established by the Council of Federation shall inform the Chamber Council on the execution of the specified task. Regulations of the parliaments (their chambers) of the regions of the Federation also establish the possibility of the «government hour». For ex197

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ample, at the meeting of the Legislative Assembly of the Rostov Region the «government hour» can be carried out in the form of information of the deputies on the problem(s) raised by them by the Head of Administration of the Rostov Region, the prosecutor of Rostov Region, the Chairman of the election commission of the Rostov Region, and other officials in the form of answers to questions of deputies of the Legislative Assembly. Following consideration of the question(s) the recommendations may be taken that are included in the minutes of the meeting of the Legislative Assembly, and sent in the form of an extract from the minutes (the task of the Legislative Assembly) to the relevant state bodies, other organizations (Art. 36 of the Regulation of the Legislative Assembly of the Rostov Region). The procedure of the parliamentary (deputy) requests. Quite often, the Parliament, its Chambers, as well as individual parliamentarians invoke the procedure of appeals to the public authority or official for the provision of information on parliamentary competence, what is called a parliamentary inquiry. For example, the Chambers of the Federal Parliament may send a parliamentary question to the Chairman of the Government of the Russian Federation, other members of the Government of the Russian Federation of, the Prosecutor General of the Russian Federation, the chairman of the Central Bank of the Russian Federation, the chairman of the Central Election Commission of the Russian Federation, the chairmen of other election commissions, the chairmen of the referendum commissions, the Chairman of the Accounts Chamber of the Russian Federation, the heads of other federal state bodies, the state bodies of the subjects of the Russian Federation and local authorities, as well as the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund on matters of the reference of these bodies and officials in compliance with the legislation on non-interference of a member of the Council of Federation, a deputy of the State Duma in the operational-search, criminal-procedural activities of bodies of inquiry, investigators and judicial authorities. The official, to whom a parliamentary inquiry was sent, should answer to it orally (at a meeting of the Chamber) or in writing, as a rule, not later than 15 days from the date of receipt of a parliamentary inquiry. A written answer to a parliamentary question shall be announced by the Chairman at a meeting of the Chamber. Copies of the answer are sent to all deputies (members) of the respective Chambers of Parliament. It should be noted that the Regulations of the State Duma provides rules concerning the possibility of the deputies to send requests at their own discretion to the Chairman of the Government of the Russian Federation, other members of the Government of the Russian Federation, the Prose198

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cutor General of the Russian Federation, the Chairman of the Central Bank of the Russian Federation, the Chairman of the Russian Central Election Commission, the chairmen of the other election commissions, the chairmen of the referendum commissions, the heads of other federal state bodies, the state bodies of the subjects of the Russian Federation and local authorities, as well as the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund on matters within the competence of these bodies and officials. At the same time such a request does not require a final answer at a meeting of the Chamber. Regarding the regions of the Federation, it is important to note that the holding of parliamentary (deputy) procedures is regulated not only by the regulations of Parliaments, but rather often by special legal acts regulating public relations connected with the implementation of the Parliament of the activities on investigation the facts and circumstances that are the subject of a parliamentary inquiry. For example, the Law of St. Petersburg of March 6, 2013 No. 99-19 «On the Procedure of Introduction and Consideration of Deputy Requests», the law of Moscow of November 22, 1995 No. 24 «On the Procedure of Introduction and Consideration of Deputy Request»; the Law of the Kabardino-Balkaria Republic of June 20, 2008 No. 31-RZ «On the Parliamentary Investigation». So, according to Art. 1 of the Law of Moscow «On the Procedure of Introduction and Consideration of Deputy Request» under the deputy request is understood a special form of appeal of a deputy (deputies) of the Moscow City Duma to provide information, which is used in cases where other statutory forms of appeal do not provide the requested information or when the content of the request needs its immediate receipt. Thus, in this Law defines in detail the subjects, which can be queried, procedure for submitting a request and receiving a response to it. So, the deputy (deputies) of the Moscow City Duma has the right to send a request to the mayor of Moscow, members of the Moscow government, the heads of executive authorities of Moscow and the local authorities, the prosecutor of Moscow, the chairman of the Moscow City Electoral Commission, heads of territorial bodies of federal executive authorities in Moscow and other subjects established by the Act. The queried person has to provide a response on the merits of the request orally (at the Duma meeting) or in writing not later than 15 days from the date of its receipt, or in any other period agreed with the request’s author(s). The joint meetings of the Chambers of Parliament. Due to the bicameral structure of the Parliaments among the parliamentary procedures there is the one according to which joint meetings of the Chambers are held. In particular, the Chambers of the Federal Assembly in accordance with Art. 199

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100 of the Constitution of the Russian Federation can be assembled together to listen to the messages of the President of the Russian Federation, the messages of the Constitutional Court of the Russian Federation, and speeches of leaders of foreign states. Now there is a discussion about whether the Chambers of the Russian Parliament has the right to meet in some other situations. In this connection, it seems important to develop the norms of the regulations of the Chambers of the Federal Parliament with the aim of consolidation of the forms of their joint activities. Summing up, it should be stated the difference in the regulation of largely similar parliamentary procedures, their qualitative characteristics in the regions of the Federation in relation to each other, as well as in relation to the procedures inherent to the federal Parliament. In addition, these differences are largely predetermined by the peculiarities of the structure of the Parliament, its manner of formation, the powers and status of parliamentarians and their associations. § 3. The procedure of decision making in the Parliament

The basic principle of a modern Parliament’s activity is a collective decision-making in a free and open discussion of the raised questions and the views of the voters. The decision-making process in the Parliament and its results show the quality of the organization of parliamentary activities, work on a specific task, which follows from the functions and powers of the Parliament, and ultimately its ability to adopt effective legal regulations to meet the needs of modern society and the state. The Chambers of the Parliament take their decisions by voting. The regulations of the legislative (representative) bodies of Russia offer plenty of ways to vote in view of the methods of voting, the number of questions put to a vote, and other circumstances. From the choice of these methods depends largely the result of the vote, the level of openness of the procedure and the possibility of public control over the parliamentarians. According to the regulations of the federal Parliament’s Chambers the decisions at their meetings are made by the open (for example, a roll call) vote or by secret vote. Voting at the meeting of the Council of Federation and the State Duma is carried out by using electronic system of vote counting or without it (bulletins). At the same time, as a rule, when using the electronic system a voting shall be public, unless the Chamber decides otherwise. In the State Duma, a decision on a way to vote is made by a majority of votes of the present deputies. In the Council of Federation a decision on a way to vote shall be considered adopted if more than half the members of the Chamber, participated in voting, but not less 200

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than one-fourth of the members of the Council of Federation have voted for it. For a voting by bulletins, the Council of Federation or the State Duma creates the Auditing commission from among its members, which is a working body of the meeting of the relevant Chamber of Parliament. It should be pointed out that a secret voting with use of the bulletins is usually carried out in exceptional circumstances. For example, this procedure took place in the State Duma on April 24, 1998 when the candidacy of the Chairman of the Government of the Russian Federation was being considered at the third time; then there was a threat of dissolution of the Chamber. Voting with the use of the electronic system can be quantitative, rating and alternative. Quantitative voting is a selection of possible answers: «for», «against», «abstained». Counting of votes and announcement of the voting results in absolute and percentage terms are made for each voting. This type of voting is the most common and is used in the voting on the adoption of the laws and regulations of the Chambers. Rating voting is expressed in a number of consecutive quantitative voting on each of the issues in which any parliamentarian can take part. If the under results of rating voting several issues get enough number of votes for their adoption, the adopted decision is considered to be a decision which have got the greatest number of votes. If under the results of voting none of the questions get enough number of votes for its adoption, then the question with the greatest number of votes put to a second vote. The decision thereon is considered adopted if in the voting it have got enough number of votes for the adoption. Rating voting is often held on personnel issues when the parliamentarians need to choose one candidacy from several candidates for election (appointment) to the position. The adoption of a decision in the appropriate cases is substantially in the form of the Resolution of the Parliament’s Chamber. The alternative voting is a voting for only one option of the question put on voting. Counting of votes and announcement of the voting results (in absolute and percentage terms) are made simultaneously on all options of the question put on voting. As a rule, the alternative vote is held, when to the State Duma before the first reading the alternative draft laws are submitted; as a result the draft law, subject to review in the first and subsequent readings is determined. At the beginning of the open voting, the Chairman reports the number of proposals that are put on voting, clarifies their wording and sequence of voting on them, reminds what majority of votes the decision may be adopted. With respect to the latter — concerning the State Duma we can talk about the majority of the total number of deputies of the State Duma; of 201

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the number of deputies of the State Duma, who took part in the voting; on the other established majority of votes. In the Council of Federation — about the majority of votes of the members of the Council of Federation; of the number of members of the Council of Federation, who took part in the voting, but not less than one quarter of the total number of members of the Council of Federation; about simple or qualified majority. After the Chairman announces the beginning of voting no one has the right to interrupt the voting. In the absence of a quorum in the lower Chamber of the Russian Parliament needed for the conduction of voting, the Chairman postpones a vote to the next meeting of the State Duma. In the Council of Federation the voting is considered valid if the number of members of the Chamber present at the Chamber’s meeting, not less than the number of members of the Council of Federation, required for decision-making. With insufficient for the voting number of members of the Council of Federation, present at the meeting of the Chamber, the Chairman has the right within this meeting to appoint another time for voting on the issue, discussion of which is complete. Upon completion of the votes counting, the Chairman announces if a decision is adopted or not. It should be noted that in the State Duma and the Council of Federation when holding an open voting with the use of the electronic system of vote counting, a deputy has the right to get a list with the results of roll call voting. When holding a secret voting with the use of the electronic system, information on the results of the roll call voting of the members of the Council of Federation and the deputies is not recorded to the memory of the electronic system. Largely similar voting methods are used for decision-making in the legislative (representative) bodies of regions of the Russian Federation. Thus, according to the Regulations of the People’s Khural of the Republic of Buryatia, the decisions of People’s Khural are taken at its meetings by open or secret voting. At this, the open voting at the meeting is carried out using the electronic system of the vote counting or without it by raising the voting cards. Secret voting is carried out by bulletins for secret voting. Voting with the use of the electronic system can also be quantitative, rating, alternative and qualitative. At an open voting with the use of the electronic system for vote counting, a deputy has the right to get a list with the results of roll call voting. Regulations of National Assembly of the Republic of Mari El stipulates that decisions of the National Assembly shall be adopted at a meeting of the National Assembly in two ways: by open (cards) or secret (bulletins) voting, the choice of voting method is determined by the National Assembly. At an open voting, the counting of votes is carried out by the secretar202

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iat of the session. After the end of the counting of votes the Chairman announces the number of votes «for», «against», «abstained» and the adopted decision. Voting can be taken by raising hands without counting of votes by the presence of the majority, defined by the Chairman. If any doubts or at the request of at least one deputy, the Chairman shall count the votes. The National Assembly elects by the open voting a Counting commission from its members to conduct the secret ballot and counting of votes. The Counting commission may not include members, nominated for secret voting. In some regions of the Federation, the adoption of the decisions in legislative (representative) bodies has its own characteristics due to the traditions of the parliamentary activities of the respective region of the Federation. Thus, according to the Regulation of the Moscow City Duma in addition to known federal regulation forms of decision-making (for example, secret and open voting) such forms of voting as «soft» and «hard», «decisive» and «informative» are distinguished. Therefore, under the «soft» voting, a deputy has a right to vote for each voting option; under the «hard» — a deputy has not a right to vote for more than one voting option (Art. 84); «decisive» voting cannot be a ground for any decision-making and has an informative character (Art. 90). In general, the voting is the responsibility of parliamentarians. When voting, each of them has one vote, which is used to vote for or against the decision or to abstain from any decision-making. In this regard, the question of the execution of the deputy mandate in a personal capacity is of particular interest. So, according to Art. 85 of the Regulations of the State Duma, a deputy has the opportunity to transfer his voice to another deputy in the case of absence at the meeting of the Chamber. For this purpose, he needs to make a statement addressed to the Chairman of the State Duma with reasons for the absence, the time at which the voice is transferred, and how to dispose of his voice when voting on issues considered by the Chamber. A deputy of the State Duma also has the right to send this request by a telegram that is transferred directly to the State Duma Committee on Regulations and Procedural Organization to inform the person presiding at the meeting of the State Duma, as well as for the purposes of recording and keeping. The corresponding procedure was established after the Judgement of the Constitutional Court of the Russian Federation of July 20, 1999 No. 12-P which considered possible to transfer the vote to another deputy with an indication of how to use it in voting in the case of absence at the meeting due to circumstances of outstanding character. Such circumstances include local emergencies, illness, business trip, and other causes of extraordinary character. 203

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The Court also pointed out that observance of the requirement on the necessity of deputy’s personal participation in the voting in the legislative process, as an essential element of a proper procedure, based on the requirements of the Constitution of the Russian Federation concerning the adoption of federal laws. It should be noted that the legislation of many regions of the Federation does not provide regulations on the ability to transfer a vote to another deputy in the absence at the meeting and in this regard, the parliamentarians can exercise their right to vote only in case of their personal presence during the voting. So, according to Art. 76 of the Regulations of the National Assembly of the Republic of Mari El in the voting on each issue a deputy of the National Assembly has one vote, giving it for or against the decision-making or abstaining from the decision-making, consequently, a deputy personally exercises his right to vote. A deputy who was absent during the voting, has no right to vote upon the expiration of the voting period. Currently, as a rule, the voting may be held in two rounds by the decision of the Parliament (its Chamber). Thus, according to the Regulations of the State Duma by its decision in the case of the nomination of several candidates or a proposal for more than two options of the decision of the issue considered by the Chamber, the voting may be held in two rounds. The first round allows each deputy of the State Duma to vote for any number of nominated candidates or suggested decisions of the issue considered by the Chamber. The second round of voting is held for two candidates or two options of decisions, received the most votes in the first round. According to the results of the second round, a candidate is considered as elected or a decision is considered as adopted, which receive the most votes, but not less than the number of votes of the deputies, set forth for a decision-making. The procedure for the adoption of individual decisions in the Parliament may vary depending on the subjects of their adoption (Chamber of the Parliament, faction, committee, commission of the Parliament), the objects of lawmaking activities of the Parliament, their legal status (amendment to the Constitution, constitutional laws, organic and current laws, by-laws), chosen organizational form of decision-making (meeting of the Chamber, «parliamentary hour», parliamentary hearings). In addition, the regulation procedures of the decision-making in the parliaments of the federal and regional levels are different. At the federal level there are following parliamentary procedure for the adoption of: amendments to the Constitution of the Russian Federation; federal constitutional laws; federal laws; acts of the Chambers of the Federal Assembly. At the level of the regions of the Russian Federation — the parliamentary procedures for the adoption of: the Constitution (Charters) of the regions of the Russian Federation; the laws on the amendment of the constitutions (charters) of the regions of the Russian Federation; constitutional laws; the 204

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laws of the regions of the Russian Federation; the bylaws of the Parliaments and their Chambers. Let us illustrate the features of some decisions making in the federal Parliament according to the legislation. Federal laws are adopted by the State Duma by a majority of votes of all deputies of the State Duma, unless otherwise provided by the Constitution of the Russian Federation. Adopted by the State Duma federal laws within 5 days are submitted to the Council of Federation. The federal law is considered approved by the Council of Federation, if voted for by more than half of the total number of members of the Chamber or if within 14 days it has not been considered by the Council of Federation. Thus, there is a list of regulation spheres which are subject to compulsory consideration of federal laws by the Council of Federation is necessary (for example, the federal budget, taxes and fees, the issues of war and peace). The federal constitutional law is considered as adopted if it is approved by a majority of not less than three-fourths of the votes of the members of the Council of Federation and at least two thirds of the total number of deputies of the State Duma. The resolutions of the State Duma on procedural matters are usually taken by a majority of votes of all deputies of the State Duma, unless otherwise provided by its Regulation. In the Council of Federation, a decision on procedural matters is adopted by a majority of votes of members of the Council of Federation, participated in the voting, but not less than one-quarter of the total number of votes of members of the Council of Federation, unless otherwise provided by its Regulation. Among the procedural matters are the following: pause in the meeting or adjournment of the meeting; providing of additional time for speech; giving floor for the persons; invited to the meeting; adjournment or termination of the discussion; adjournment of the matter to the relevant committee or commission of the Chamber; voting without debate; changing the method of the voting; changing the procedure of speeches; conduction of additional registration; and etc. In addition, the State Duma and the Council of Federation shall take decisions on matters referred to them by the Constitution of the Russian Federation according to the especially prescribed manner. Thus, the State Duma adopts the resolutions on the following matters: on the consent to the President of the Russian Federation about the appointment of the Chairman of the Russian Federation; on the confidence to the Government of the Russian Federation; on the appointment and dismissal of the Chairman of the Central Bank of the Russian Federation, Chairman of the Auditing Chamber of the Russian Federation and half of its auditors, the Human Rights Commissioner; on the amnesty. 205

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Also, it is possible to observe the features in the regulation of rules and procedures of the consideration and adoption of separate parliamentary decisions in the legislative (representative) bodies of the subjects of the Federation. In particular, Art. 36 of the Charter of Moscow sets forth a special procedure for the consideration of the draft laws of Moscow on the issues of administration and disposition of its property, administration or abolition of taxes, exemption from their payment, changes in financial obligations of the city and other draft laws of Moscow, providing for expenditures covered from the funds of its budget as well as relevant draft resolutions of the Moscow City Duma. Drafts of these acts are considered on the proposal of the mayor of Moscow or in the presence of his conclusion. At the same time, this conclusion is submitted to the Moscow City Duma within 30 days from the date of receipt by the mayor of Moscow the draft law of Moscow, the draft resolution of the Moscow City Duma. The text of this article provides that the laws of Moscow are adopted by a majority of votes of the established number of the deputies of the Moscow City Duma, unless otherwise provided by the federal law; resolutions of the Moscow City Duma — a majority of votes of the elected deputies, unless otherwise provided by federal law. Thus, decision-making in the Parliament is a very complex process, the quality of its performance largely depends on the preservation by the Parliament of its status as a legislative and representative body. In this regard, it is important to improve the adoption of such decisions, especially by improving of their democratic nature (consideration of public opinion), efficiency (detail elaboration of draft decisions and correspondence to the public demands), and transparency (availability of draft decisions for consideration and control of their adoption).

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§ 1. The organization of lawmaking activity in the Russian Federation

The legislative activity is one of the main forms of expression of state power in the Russian Federation and consists in establishing, changing or cancelling the legal regulations, set forth in the legislation. Through this activity the conditions for the embodiment of the will and interests of the people in the generally binding rules of behavior, appropriate to political, economic, and social development are created and executed to settle the most fundamental questions of social life, restrictions of all sorts of deformation processes, enhance the authority hoof law. The Constitution of the Russian Federation lodges the Federal Assembly and the legislative (representative) bodies of the regions of the Russian Federation with lawmaking powers. Together, they represent the coherent system of legislative power that finds expression in providing common approaches to legal regulation of matters within the scope of joint reference of the Federation and the regions of the Federation; in the implementation of the legislative initiative on adoption of the federal law; in the approval in the regions of the Federation the amendments to the Constitution of the Russian Federation; as well as in other forms of cooperation to facilitate the combination in legislation of federal and national interests of the various regions of the Russian Federation. The powers of the Federal Assembly include the publication of laws having supreme legal force and direct effect on the entire territory of the Russian Federation. Thus, the main load in the publication of laws is assigned to the State Duma. This approach is based on the international parliamentary practice, according to which in the two-chamber parliament the legislative activity is concentrated in the chamber formed through direct elections and specifically representing the entire population. However, the Constitution of the Russian Federation also provides the participation in lawmaking the second chamber — the Council of Federation. The transfer of a federal law adopted by the State Duma is deemed to be obligatory; obtaining the consent of the Council of Federation on the adoption of the law; overcoming, of its suspensive veto when necessary. In fact, the Council of Federation plays the role of a body entitled in cooperation with the legislative (representative) bodies of the regions of the Russian Federation to promote a more in-depth consideration of legislative 207

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matters in the federal parliament. This task is greatly facilitated by the activity of the Council of Legislators (established in May 2002), the main purpose of which is to promote the formation and implementation of a single legislative policy of the Russian state, giving the legislative activities of a systemic nature. Strengthening the coordination role of the Council of Federation in cooperation of legislative (representative) bodies of the regions of the Federation with the federal legislator can also contribute to a more active implementation in the practice of the federal consolidated legislative initiatives. Consolidated initiative, representing a solidarity of state-legal concept of two or more regions of the Federation and carried out with the direct participation of the Council of Federation, is capable to provide the necessary harmonization of Russian legislation with reflection in it of urgent needs of social and political development. Legislative activity is carried out in a specific procedure, which is set forth by the procedural rules, based on certain conceptual provisions to ensure its most appropriate organization. First of all it is the necessary continuity in the regulation of legislative activity, consolidation of generally accepted, developed by the parliamentary practice of legislative procedures; continuous improvement of procedural rules while maintaining their degree of stability; comprehensive and to the maximum extent detailed regulatedness of lawmaking process. The establishment of measures of the legal impact aimed at ensuring the proper execution of procedural and legal rules has a great importance. The existence of such measures in the mechanism of legal regulation of legislative activity increases the effectiveness of these rules, allows preventing the attempts to «manipulate» them from the participants of legislative activity, and limits the ability to act contrary to the requirements thereof. The modern legal regulation of legislative activity is characterized by the fact that a number of provisions to its regulation is consolidated directly in the Constitution of the Russian Federation, which, in particular, establishes: the scope of persons and bodies possessing the right of legislative initiative; procedure of activity of each chamber in the execution of their legislative powers; the majority, required for a legislative act shall be considered as adopted; dispute resolution procedure in the case of disagreements between the chambers about the adopting law; terms of signing of the law by the President of the Russian Federation, the use by him of suspensive veto and procedure to its overcome by the Chambers of the Parliament. Essentially, the constitutions (charters) of the regions of the Russian Federation set the same scope of matters. The main document defining and organizing the legislative activity of the Parliament is a Regulation. The legislative procedure is one of the most 208

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important part of the regulations, concentrating the detailed, clear, legally binding rules, intended to ensure a uniform procedure for developing the legislative decisions. Procedural norms regulate the procedures of passage of draft law in the Parliament, legal guaranties of its qualitative and qualified consideration in the parliamentary committees (commissions), at the meetings of the legislative body. The following procedures could serve as such guarantees: ensuring of public participation in the legislative work; the organization of various kinds of expert examinations of the draft law, considered by the legislative body; the holding of the public parliamentary hearings on the most important draft laws. The legislation, like any other kind of government activities shall meet the requirements arising from the need to comply with the certain principles. Those principles, in the literature, are the principles of legality, democracy, transparency, professionalism and of scientificity1. It is important to bear in mind that these principles serve as the determinative basis and guidelines for all parliamentary activities. However, they characterize in full the legislative activity, concentrated reflecting its essential, legitimate features and specifics in the concentrated form. The principle of legality in relation to legislative activity is expressed in the requirement of strict observance of the procedure of its execution by all its members. It involves the adoption of a legislative act in strict accordance with the established legal procedure and within the reference of the lawmaking body. The adopted act should not contravene the provisions of the Constitution (Charter) and legislation applicable on the territory of the Russian Federation (the region of the Russian Federation). The adherence of the form of the adopted legislative act is the compulsory condition (law, constitutional law, law on the amendment to the Constitution, etc.). Following the principle of legality, it must be borne in mind that it can perform its function only in the presence of system of measures, guaranteed to ensure the legitimacy of the act elaborated by the legislative body. The principle of democracy is manifested in bringing to the legislative process of the public, representatives of executive authorities, local self-government. Thus the conditions for the identification and concentration of public opinion and reflection it in the adopted legislative decisions are created2. This principle can be expressed as a direct legislative activity of citizens, which is ensured by providing them the right to submit a private initiative of the law into the legislative body. Popular legislative initiative allows to take into account the actual social want, the needs and interests of the people. The policy is intended to ensure the participation of a person in 1



2

Ref. e.g.: Yu.A. Tikhomirov, I.V. Kotelevskaya. Legal acts. Moscow, 1999, 413–415 p. Ref.: A.I. Abramova. The legislative process in the Russian Federation. Moscow, 2005. 18 p. 209

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administration of state affairs, on a full implementation of the ideas of self-government and its all-round development. A manifestation of democracy in the organization of legislative activity also serves the establishment of the measures aimed at protecting the rights of the parliamentary minority in the legislative decision-making; ensuring the right to the realization of the alternative draft of legislative act introduced to the legislative body, etc. The principle of publicity stipulates the openness of legislative decisions making process, the awareness thereof of the public. The implementation of this principle is largely due to the imposition of drafts of especially significant legislative acts in the field of economic, social, cultural, ecological and other activities for public discussion. There are various options of such discussions: public discussion, discussion with sending of the draft “to the local level”, with the use of print media, radio, television, as well as the organization of discussions directly with the legislative body and the attraction of the public organizations, the scientific community, and other social structures. The purpose of public discussions is to identify the real relationship of most different segments of the population to the adopted law. In a determinate sense, these discussions not only improve the content of the future legislative act, but also actively influence to the development of the legal awareness of citizens, increase their awareness about the law, unpack the social value of a legal regulation as a whole. The principle of professionalism is aimed at improving the quality of legislative activity. It is expressed in the requirement of skill, i.e. in execution of this work in a professional manner. Adherence to this requirement should provide an accurate preparation and formulation of the legal prescriptions, their rational verbal expression, the creation of legal structures that allow to transfer suggestions, comments received in the course of legislative activity into the clear language of the legislative text. A good general and special legal training of the participators of legislative activity should be considered, as a necessary condition for the practical implementation of this principle, the development of their knowledge and performance skills concerning the draft of legislative act, its legal and technical execution. Additionally the implementation of this principle implies the mandatory involvement to participate in the consideration of the law adopted by the Parliament by the different specialist able to assess competently the draft law and to assist in its improvement1. The principle of scientificity aims to reveal the real needs of social development, its objective laws, which allows to bring the legal reality significantly closer to the actual relations at their direct regulation. It is necessary that each adopted legislative act organically fits into the legal system by not 1



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Ref.: A.I. Abramova. The legislative process in the Russian Federation. Moscow, 2005. 19 p.

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only for its legal parameters, but also for the actual content1. To accomplish this task the scientific potential is actively used in the legislative process. Doctrinal decisions are developed and offered to a legislator as the basic researches scientific, scientific and methodological recommendations that with varying degree of success are executed in the legislative practice. The conceptual researches are the most important in the arsenal of scientific studies. The realities of the modern state-legal development determine the preparation of scientific concepts that require new science-based approaches to the development of legislation and allow to simulate the optimal set of basic acts that are crucial for its development. A special role in this process is dedicated to the organization of scientific forums (conferences, symposia, scientific readings, round tables) with the presentation of problems, which are aimed at improving the efficiency of legislative activities and the provision on the results of their implementation of the integrated analytical information. Such proved themselves in practice forms of participation of scientists in the legislative process as the preparation of reasoned opinions to the draft laws, work as a member of committees, working groups, scientific advice on the clarification of the legislation, the mechanism of action of the future law, etc. remain quite effective for today2. The great importance in recent years acquires the introduction of the feedback principle to the legislative activity of the Parliament, aimed at a more organic combination of legislative and law enforcement3. This principle imposes the obligation of the legislator to monitor on a systematic and regular basis the application practice of existing laws, to identify the causes and conditions that impede their proper implementation. Analytical support for 1



2

3



Ref .: S.S. Alekseev. Theory of Law. Moscow, 1994. 123 p. A significant contribution to the development of the issues of improving the legislative activities and the development of legislation is introduced by the Institute of Legislation and Comparative Law under the Government of the Russian Federation. Among the works produced by the Institute: Yu.A. Tikhomirov. The theory of the law. Moscow, 1982. Russian law: problems and prospects / Editor-in-Chief L.A. Okunkova. Moscow, 1995; Efficiency of the act (methodology and case studies) / Editor-in-Chief Yu.A. Tikhomirov. Moscow, 1997; Law: creation and interpretation / Editor-in-Chief A.S. Pigolkin. Moscow, 1998; Legislation in the Russian Federation / Editor-in-Chief A.S. Pigolkin. Moscow, 2000; V.I. Vasiliev, A.V. Pavlushkin., A.E. Postnikov. The legislative bodies of the regions of the Russian Federation. Legal questions on formation, competence and organization of work. Moscow, 2001; Law, stability and dynamics // Materials of meeting of the International School-Workshop of young legal scholars. Moscow. June 1–3, 2006 / Editor-in-Chief T.Y. Khabrieva. Moscow, 2007; Legal technology / Editor-in-Chief T.Y. Khabrieva, N.A. Vlasenko. Moscow, 2009. Institute has a priority in the preparation of scientific concepts of development of the Russian legislation. Ref. for details: Concept of the Russian legislation / Editor-in-Chief T.Y. Khabrieva, Yu.A. Tikhomirov. Moscow, 2010. 92–98 p. 211

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this work contributes to the organization of legal monitoring. The main component of this monitoring — based on the monitoring system collection and analysis of information (statistics, sociology, comparative legal, etc.) on the implementation of the adopted laws, their implementation and enforcement, the action results in different areas of public life, as well as on measures taken pursuant to the law in accordance with the purposes which laid in it. Equally important in connection with the implementation of international law is the analysis of the condition of law enforcement practices aimed at the actual fulfillment of the international obligations taken by the Russian state; studying of real change in the interaction of domestic and international law. A necessary component of monitoring is the assessment on the basis of the analysis of the real effectiveness data of the adopted law, the coefficient of its regulatory impact on the social processes. Carried out in this case, from the standpoint of broader generalizations analytical assessments help to find the negative consequences associated with a surface study of the concept of the adopted act, its insufficient moral validity and resource security, delayed adoption; help to overcome the conflict of legal rules, prevention of legal risks posed by including the presence of legal provisions that create conditions for corruption. The possibility to adjust the individual legislative norms or the current act as a whole, with making any necessary changes and (or) amendments is emerged to it1. Today the expediency of more complete use of monitoring data in the legislative process is obvious. It seems to be important that the parliamentary committees will be involved more actively in the monitoring activity. In so doing, it would be preferable to monitor by a single methodology and harmonized procedures based on accumulated experience at both the federal and regional levels. In general, we can say that each of the above principles is to be applied in the legislative process reflects the certain aspects and techniques of this activity. Together, they create organizational and legal conditions conducive to improving the quality of legislative activity and, consequently, the formation of a coherent internally consistent system of the Russian legislation, the priorities of its development. § 2. The definition of the legislative process and its stages

The legislative activity of the Parliament is carried out within the legislative process, which is a strictly orderly procedure established by the pro1



212

Ref. for details: Legal monitoring / Editor-in-Chief Yu.A. Tikhomirov, D.B. Horokhova. Moscow, 2009. 103–116 p.

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cedural and legal norms and which is obligatory for all participators of the said activity. In the literature different approaches to the understanding of the legislative process and its structural elements are developed. Most authors limit the legislative process with the official passage of the draft law in the legislative body. However, there is a point of view, the authors of which broadly interpret the content of the legislative process, including in it all preliminary activities for the preparation of the draft law. The rationale for this view is a reference to the fact that the procedure for the preparation, which is carried out with the participation of many individuals and groups, is essential for the legislative process, because at this stage the question about the publication of the law is raised, the need for its acceptance is revealed, the foundations of the future legislation are laid, his scientific and expert elaboration are made. The actions that are directly related to the formation of a legislative act constitute the procedure of preparation of the draft law. Its quality, efficiency, social significance depend largely from them. But it is clear that both in nature and in the functional purpose these actions differ from the actions taken within the legislative process itself1. The preparation of the draft law is the only basis for the subsequent legislative work of the Parliament. It is intended to facilitate the execution of its exclusive right to the promulgation of a law, to create the prerequisites for this. The difference lies in the fact that as a rule different legal subjects perform actions aimed to ensure the Parliament’s legislative activities and the preparation of the draft law. The execution by the legislative body of power for the promulgation of a law can be done only by authorized entities, whereas the range of entities, preparing a draft law, is not defined, and may include persons and bodies who are not entitled to directly participate in the legislative work of the Parliament. Thus, the procedure of preparation of the draft law is not covered by the concept of «legislative process». As an essential element in the mechanism of lawmaking, it represents a separate independent element of this mechanism. The legislative process begins with the entry into relations of creation of law. Only from the moment when the legislative body becomes the entity of this relationship, they acquire the procedural character. Procedural relations cannot occur directly between the parties in the legislative process, but shall be mediated through the legislative body. That is why the latter is a necessary participator of any of them. Legislative body directs the actions of persons (bodies) involved in the process and helps them in execution of their procedural rights and obligations. The rights and duties of the legislative body are derived from its competence, as the authority executed to 1



Ref.: A.I. Abramov. The legislative process in the Russian Federation. 15 p. 213

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legislate and to bring any benefits resulting in the creation of law, the importance of public will. One of the characteristic features of the legislative process is the division of it into structural elements, referred to in the theory of law as the procedural stages. The stage of the legislative process in general terms can be defined as a certain set of procedural actions that contribute to a particular legal result. Depending on the nature of these actions and the obtained result one stage is distinguished from another. The stages are implemented in the established procedural norms of the sequence, changing each other. This provides a logical development of the process, creates the conditions for a gradual, phased fulfilling the tasks set before it. Each individual stage, carried out at specific time limits, represents a complete stage of legislative activity and is characterized by relative independence, a specific determination1. Traditionally, the stages of the legislative process are considered to be: a legislative initiative, the discussion of the draft law, adoption of the draft law as a law and the publication (promulgation) of the law. The legislative initiative as the first stage of the legislative process is characterized mainly by the fact, that it actuates a mechanism of the legislative activities of the Parliament. Since the beginning of the implementation of the legislative initiative, which is expressed in the initiation of the issue of adopting of the law related to the emergence, relatively speaking, of the first legal relation that combines a complex mutual rights and obligations of the entity of the legislative initiative and the legislative body2. The subject of the legislative initiative is imposed with the obligation to submit the draft law in strict compliance with established rules. At the same time, the legislative body has the right to require a compliance with this condition, and at its failure to comply — to return the draft law to the initiator3. The main duty of the legislative body is in the submission of the draft law for review by including it in the agenda of its meeting. It corresponds to the powers of the subject of legislative initiative to require the raising of the question on the consideration of introduced by it draft law to a voting of the session of the legislative body, to uphold the provisions of the draft law in the preliminary consideration it by the committee, to withdraw the draft laws before the beginning of their discussion at the meeting of the Parliament4. 1



Ref.: A.I. Abramova. Modern legislative process of the Russian Federation: stages and the problems of their perfection // Journal of Russian law. 2007. No. 2. 14 p. 2 Ibid. 3 Ref.: A.I. Abramova. Modern legislative process of the Russian Federation: stages and the problems of their perfection // Journal of Russian law. 2006. No. 3. 13 p. 4 Ref .: A.I. Abramova. Modern legislative process of the Russian Federation: stages and the problems of their perfection. 14 p. 214

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An important stage in the legislative process is the discussion of the draft law in which the draft is subject to a comprehensive study, a deep and detailed analysis: different points of view are studied, the compromise decisions which largely determine the fate of the adopting law are taken, its practical application is studied also. The stage of discussion consists of several intermediate staging points — reading of the draft law. The result of all readings of the draft law is its overall assessment; assessment of the correctness and necessity of the presence of the individual parts of the draft law, beginning with its name and ending with the final clauses; the improvement of the draft law to the extent of its amendments in the course of the discussion — correction, supplement of the text of the draft law, the elimination of all kinds of gaps and omissions. Passage of the draft law through a series of readings makes it possible to organize its consideration in the legislative body more thoroughly. Repeated voting on the draft at various meetings creates the conditions for its detailed study and the fullest incorporation of the comments and proposals made thereon. The introduction of the regulatory deadlines, determined the time interval between the reading of the draft law seems to be important. The period which is to be taken into account in determining the duration of such periods should be set considering the time required to carry out all procedural actions to prepare the draft law for the next reading, including its consideration by the other Chamber1. Procedure of the readings is usually preceded by consideration of the draft law in the committees of the legislative body2. There is a tendency of a significant expansion of their powers at the stage of discussion of the draft law. Committees considering the draft law before the discussion at the plenary session, save the Parliament (Chamber) from the need of it detailed study, and thereby accelerate the passage of the draft law in the legislative body. The activities of the committees intended to prepare the draft law for reading at the plenary session, include: collecting and preparing materials for the discussed draft; studying and generalizing of all comments and suggestions incoming during its consideration; updating, editing the text of the draft law; organizing the conduction of its expertise. It seems appropriate to eliminate the duplication in the elaboration of the same issues by the parliamentary committees and by the Parliament. The work on the draft law will have the greatest effect in the case of the full consistency of all actions. The Committee’s conclusions are intended to serve as the guidelines for the execution of certain procedural actions by the Parlia1



2



Ref.: A.I. Abramova. Modern legislative process of the Russian Federation: stages and the problems of their perfection. 16–18 p. Ref.: A.I. Abramova. The legislative process in the Russian Federation. 19 p. 215

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ment, prevent the occurrence of disputes, unnecessary debates during the plenary sessions. The recommendations of the committees should be, if not decisive, of at least determinative nature. This general principle adopted in the form of rules of parliamentary activity in most foreign countries, is becoming more prevailing in our legislative practice. Discussion of the draft law in the legislative body is completed by the adoption of a formal decision on it. The draft law received the approval of the majority of the deputies of the Parliament (Chamber) and converted into a binding legislative act. This stage of the legislative process is commonly referred to as the stage of the adoption of law1. Based on modern ideas about the legislative process of the Russian Federation, a draft law to be considered as adopted shall pass the procedure for the adoption in the State Duma, and then, the subsequent approval in the Council of Federation. The Council of Federation in this regard has an opportunity to either approve the law or reject it. The Rejection of the federal law by the Council of Federation raises, in turn, the additional actions: a) the re-consideration of the law by the State Duma and its adoption either taking into account the proposals of the Council of Federation (as amended by the conciliation committee), or in the previous edition; b) the re-consideration and approval of the law by the Council of Federation, if the Chamber’s proposals (as amended by the conciliation commission) under the re-consideration of the law by the State Duma were taken into account. Final adoption of the law is recognized only when its text is approved by both Chambers of the Federal Assembly2. The law adopted by the Chambers is passed to the Head of the state for signing and promulgation. Signing the law, the President of the Russian Federation witnesses that the law was adopted and shall be published. However, the President has the right to express his disagreement with the law or its individual provisions and with the relevant reasons return the law to the Parliament. In this case, the following actions are provided: a) the consideration by the State Duma of the law rejected by the President and the removal of the law from further consideration by the Chamber if it agrees with the President’s decision, or the adoption of the law as amended, taking into account the proposals of the President, or in the previous version; b) the consideration by the Council of Federation of law adopted by the State Duma as amended with the proposals of the President or in the previous version, its approval or rejection. 1



2



216

Ref.: A.I. Abramova. Modern legislative process of the Russian Federation: stages and the problems of their perfection. 18 p. Ref.: A.I. Abramova. The legislative process in the Russian Federation. 20 p.

Chapter V. Lawmaking Process

In the constitutional law and in the scientific literature, the procedure of signing the law by the President is called as promulgation and sometimes it is considered to be as the stage of the legislative process1. Promulgation of the law set forth by the constitutions of many countries requires the approval (confirmation) of the law by the head of the state. In this case, the law does not come into legal force until the head of the state gives his approval. According to the Constitution of the Russian Federation, the President does not have the range of necessary powers, which will enable him to finally adopt the law, approve it additionally. In accordance with p. 3 Art. 107 of the Constitution of the Russian Federation a law, which is rejected by the President and re-adopted by the Chambers of the Parliament, shall be signed by the President, even if he does not agree with it. For the second time veto cannot be imposed on the law2. The resolution of the Constitutional Court of the Russian Federation of April 22, 1996 No. 10-P (hereinafter — the Resolution No. 10-P) containing the interpretation of certain provisions of Art. 107 of the Constitution of the Russian Federation, confirms the right of the President of the Russian Federation to return the law to the Parliament without consideration, if he finds the violations of provisions set forth by the Constitution of the Russian Federation and procedures for its adoption. It is obvious that before the law will come into force, any unconformability with the constitutional requirements, including the procedure of adoption shall be eliminated. As a rule, the inconsistencies of this kind should be found by the competent authority, which is empowered to take a decision on the constitutionality of the law3. In this regard the experience of some foreign countries is of specific interest. For example, in accordance with the Constitution of the French Republic an organic law adopted by the Parliament before its promulgation shall be submitted to the Constitutional Council, exercising the control over the legality of legal acts adopted by the Parliament. The Council shall decide whether the law is in line with the Constitution. In this case, the laws may be submitted by the President of the Republic, the Prime Minister, and the Chairman of the National Assembly, Chairman of the Senate, 60 deputies or 60 senators to review their constitutionality by the Constitutional Council4. 1



2



3



4

Ref. e.g.: A.V. Izmalkov. Discussion questions of the federal legislative process promulgation stage // Society and Law. 2008. No. 2. Ref.: A.I. Abramova. Stages of the draft law’s passage in the legislative body. In the book: Legislation in the Russian Federation / Editor-in-Chief A.S. Pigolkin. Moscow, 2000. 386–387 p. Ref.: A.I. Abramova. The legislative process in the Russian Federation. 118 p. Ref.: A.I. Abramova. Problems of maintenance of legality in the field of lawmaking. In the book: The legitimacy of the Russian Federation. Moscow, 2008. 129 p. 217

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The Russian doctrine has not yet had the consensus on ways of resolving disputes over compliance with the constitutional procedure for the adoption of laws to the greatest extent meets the requirements of the effectiveness of legislative activity. However, a literal interpretation of Art. 125 of the Constitution of the Russian Federation leads almost to the unequivocal conclusion that the recognition of constitutionality of the adopted federal law is possible only through the control exercised by the Constitutional Court of the Russian Federation. In this situation, the constitutional control of the Court has the task of suspending the entry into force of the law adopted by the Parliament in violation of provisions of the Constitutions of the Russian Federation. It must be borne in mind that failure to comply with procedural rules is a ground for declaring the law as unconstitutional only insofar as the procedure established directly by the Constitution of the Russian Federation for the adoption of federal laws is violated. According to the legal concept of the Constitutional Court of the Russian Federation provided by the Resolution No. 10-P, a federal law shall be considered as adopted in violation of the constitutional procedure in the case when such a violation calls into question the results of the expression of will the Chambers of the Federal Assembly. Based on the above legal concept of the Constitutional Court of the Russian Federation, it can be concluded that the violation of procedural rules is the ground for the appeal to the Constitutional Court under Art. 125 of the Constitution of the Russian Federation if there are justifiable doubts in the free expression of will of the deputies of the State Duma or the members of the Council of Federation. Such violations may include: failure to comply with the principle of personal participation in the voting; voting in the absence of the necessary quorum; consideration of the draft law by only one Chamber in the case when the consideration by the second Chamber is considered as mandatory; changing the text of the law after its adoption. The law declared to be unconstitutional by the Court, is sent by the Court’s decision for re-examination by the Parliament in order to eliminate the procedural violation. The decision clearly determines the grounds for recognition of the law contradicting the Constitution of the Russian Federation; specifies what violations were committed and what proceedings should be made at re-considering the returned law. The consideration of the law in the Parliament resumes from the time when the procedural violations were committed, and is performed in the same manner as reconsideration of the laws rejected by the President of the Russian Federation. As in the case of the execution of right of the suspensive veto, the actions of the President of Russian Federation on the return of the law without consideration are carried out in connection with the adoption of a law by 218

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the Parliament. This means that the procedure for the signing of the law by the President, even though in general has a direct impact on the formation of a legislative decision and objectivity of its constituent legal norms, is not an independent stage of the legislative process1. It is executed as part of the stage of the adoption of law, organically serving as an essential element. Followed immediately after the signing, the promulgation of the adopted law intended to bring its content to the public. As a rule, the law shall be promulgated in the form of publication, which consists of reproducing the text of the law in the expressly provided official publications. The characteristic feature of the official publication is its binding nature. A legal act not published in the prescribed manner does not engender legal consequences and cannot serve as a legal basis for regulation of the corresponding social relations. The introduction of rules prescribing the need for publication of the acts, as a condition for their further force, solves the problem of openness and accessibility of acts, provides the familiarization with them of all interested subjects. Possessing the specific purposefulness, the publication is carried out in certain time limits. In a legal sense, it takes place only after the adoption of the law by the legislative body, its signing by the competent officials and the relevant registration, i.e. when the procedure for the establishment of the law is fully completed. Possibility of implementation of such a law of does not begin before the stipulated period of its entry into force. The time gap between the publication of the law and its entry into force is established by legislation. It is necessary to ensure that, before the new law will be applied, it will be available to all segments of the population and especially the persons to whom it is addressed directly. This allows specified entities prior to the introduction of the law in force to study it and correlate their behavior with it2. In legal theory a view on the publication as on the stage, completing the legislative process is widespread. In accordance with world parliamentary practice, a publication is considered as a stage of the legislative process, if the head of the state not only has the right to approve the adopted laws, but also to publish the law approved by him. In such cases, the law does not come into legal force until the head of the state, after enactment of the law, submit it for publication (this act of the head of the state is called promulgation). The publication of the law is not a stage of the legislative process, if it automatically follows the signing of the law by the head of the state, as it is typical for the Russian Federation. 1



2

Ref.: A.I. Abramova. Stages of the draft’s law passage in the legislative body. 387 p. Ref.: A.I. Abramova. Modern legislative process of the Russian Federation: stages and the problems of their perfection. 21, 22, 23 p. 219

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In this case, the legislative process is completed not with an act of approval (confirmation) of the law by the head of the state, but with an act of adopting it by the Parliament. In this connection, it seems to be correct to consider as preferred for the Russian law practice of naming it not after the date of its signing by the President and not the date of the first official publication, but the date of adoption by the State Duma in the final version1. § 3. The specific ways of adoption of certain types of laws of the Russian Federation

The main features of the legislative process are related to the procedure of the passage of the legal acts in the parliament, among which the current law constitute the most prevalent group. Under the legislation of the Russian Federation, a draft of the federal law shall be submitted to the lower Chamber. The procedure for introducing the draft law is set forth by the Regulations of the State Duma of the Federal Assembly, and has a certain sequence. According to Art. 107 of the Regulations, the draft laws introduced to the State Duma by the subjects of legislative initiative are submitted to the Chairman of the Chamber. The scope of subjects is established in p. 1 of Art. 104 of the Constitution of the Russian Federation. It includes the President of the Russian Federation, the Council of Federation, the members of the Council of Federation, the deputies of the State Duma, the Government of the Russian Federation, legislative bodies of the subjects of the Russian Federation. The right of legislative initiative belongs also to the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation on matters of their reference. The Chairman has the responsibility to adopt the submitted draft law and send it to one of the committees of the State Duma for examination on conformity with the requirements for its execution. The introduced draft is subject to mandatory registration, which is carried out by the relevant department of the State Duma. In the current edition of the Rules the position, which for a long time was defended in the literature on the need to accompanying the registration of the introduced draft law by a digital number was represented. This practice has existed in the parliaments of some foreign countries for a long time and fully prove its value. Assigning the number to the draft law on the stage of its introduction, allows the control its subsequent pass1



220

Ref.: V.P. Malkov. Publication and entry into force of the federal laws, and other regulations // State and Law. 1995. No. 5. 28 p.

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ing in the legislative body. Especially such practice proves its value with a large number of the legislative initiatives in the Parliament. Registration number under Art. 107 of the Regulations shall be reported together with the name of the draft law on the registration card, where also information about the draft law, terms of its receipt and further consideration by the Chambers of the Federal Assembly, the President of the Russian Federation are recorded. The draft law is considered as introduced to the State Duma from the date of its registration. The consideration of the draft law at a plenary session of the Parliament in accordance with the federal legislation is carried out in three readings, if the legislative body decides otherwise depending on the nature of the draft law. Each reading of the draft law has a specific functionality. At the first reading, the discussion focuses on the main provisions of the draft law, its concept, considering the question of its relevance and practical significance of the planned legal decision. The discussion begins with a presentation made by subject of the legislative initiative, who introduced the draft law, and then a co-report of the committee of the State Duma responsible on the draft law and the debates shall be held. By the decision of the Chamber, adopted by the majority of votes of deputies, the time to answer questions on the merits of the draft law may be given. It would be optimal to formulate the question in writing and its announcement. In the first reading the draft law in the case of the basic agreement of the deputies with its concept and the basic provisions is adopted and referred to the appropriate parliamentary committee responsible for its further passage in the legislative body. The rejection of the draft law, its adoption as the law is possible. In accordance with the amendments made to the Regulations of the State Duma of the Federal Assembly in 20041, when the draft law preparing for consideration by the State Duma in the second reading, on the opinion of to the committee, is impractical or the draft law grows state, the committee submits to the State Duma a reasoned proposal for the rejection of such a draft law. The question on rejecting the draft law and returning it to the subject of legislative initiative is definitively decided at a meeting of the Chamber. The Chamber may decide to continue on the preparation of the draft law for the second reading by setting the term of preparation, and if necessary to relegate its execution to another committee, made it responsible for the draft law. Such approach contributes to the operational work with the draft laws, 1



Ref.: The Resolution of the State Duma of the Federal Assembly of the Russian Federation of March 24, 2004. No. 266-IV GD. 221

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as well as relieve the Parliament of the prescribed by the previously applicable regulations duty to return the draft law every time to the first reading before its rejection. The essence of the second reading is to consider the draft law at the plenary session of the Chamber along with the amendments to its text that can be aimed to the changing the edition of certain articles of the draft, its addition with new articles, exception of the specific clauses, parts or article as a whole. The following information is submitted to the State Duma for consideration: a table of amendments recommended by the responsible committee to adoption, a table of amendments recommended by the responsible committee to rejection, and a table of amendments on which the responsible committee did not make a decision. If there are objections of the deputies, deputy groups, factions, on the recommendations of the committee on the issue of the acceptance or rejection of any other amendment each of these amendments shall be adopted separately. The adoption of each amendment separately is provided when the Committee did not make a decision on it. The retaining of the current regulation in respect of such amendments of unanimous ligament: discussion — voting deserves approval. The discussion in this situation cannot be separated from the voting, because the amendments may be offered in various combinations, partially or completely overlap each other. When discussing these amendments separately, but voting for them together, there is a danger to confuse the amendments, do not relate them to the text, for changing or addition of which they are aimed. In accordance with Art. 123 of the Regulations of the State Duma before the voting on the amendment that caused the object to introducing it in the text of the draft law, the presiding person of the meeting of the Chamber gives the right to speak to the author of the amendment, the deputy, who opposes the amendment, and the rapporteur. Each of these subjects has the right to give a reasoned explanation of the amendment in his speech, which should not last more than three minutes. This period should be recognized as optimal. It allows the speaker to justify briefly his position without going into details. If there are objections to reject the amendment recommended by the responsible committee for the rejection, then the word shall be given to the author of the amendment, with a subsequent conduction of voting on rejection or approval of the amendment. The possibility of other statements in such cases seems to be made dependent on the discretion of the presiding person. The pre-condition is that each of the deputies may take a word during the discussion of the amendments not more than once. The procedure of a limited discussion of the amendments, perceived by the Russian practice (it is widely used, for example, in the Parliaments of France, Swe222

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den), allows to avoid unnecessary debates and contributes to constructibility of the parliamentary debates. After voting on all the amendments and the text, which was amended, in general, the draft law may be put on voting. As a result of the voting, on the second reading the draft law is adopted or rejected. The draft law, which was adopted on second reading, shall be sent to the responsible committee to identify possible linguistic defects, internal contradictions, determination whether the relationship of the articles is correct and then submitted for the third reading. If the draft law was rejected, the responsible committee prepares it for re-consideration by the Chamber on second reading. If the draft law was rejected again, it will not be further considered. Third reading lies in the final vote on the draft law in order to adopt it into law. In considering the draft law on third reading the amendment and return to the discussion as a whole or on individual articles, chapters, paragraphs is not permitted. In the exceptional cases, at the request of deputy associations, representing the majority of the deputies of the State Duma, the presiding person at the meeting of the State Duma shall be entitled to vote on the issue of returning the draft law to the second reading. The proposals made at the third reading, can be directed only to eliminate the internal contradictions that have arisen in the consideration of the draft law on the second reading, to fix the reservations, misprints or apply only to those articles of the draft law, which contradict the legislation. Debates on these proposals are not carried out. The law adopted by the State Duma is submitted to and approved by the Council of Federation for a certain period. The fact of submission is approved by the presiding person at the meeting of the State Duma and the Chairman of the Council of Federation or his deputy. Together with the text of the law adopted by the State Duma a transcript of the session of the State Duma, as well as the documents and materials that were presented when introducing a draft law to the legislative body are forwarded to the Council of Federation. If the law contains provisions, providing the expenditures covered from the federal budget, the appropriate conclusion of the Government of the Russian Federation shall be sent to the Council of Federation. Its absence may be grounds for the rejection of law. In accordance with the Regulations of the Council of Federation the law received from the State Duma is registered in the Council of Federation within one hour and within a period not exceeding 24 hours, and together with the enclosed documents and materials is sent to all members of the Chamber. The members of the Council of Federation shall have the right to organize a preliminary discussion of the laws in the regions of the Federation. The technology of passage of the law in the Council of Federation adopted by the State Duma in general, depends on whether it is subject to 223

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mandatory consideration by this Chamber. With respect to the laws that are not subject to mandatory consideration by the Council of Federation, there is a rule according to which such laws may not be submitted for discussion to the entire Chamber, and then after 14 days from the date of its receipt to the Council of Federation it is receipt to be approved by the Council of Federation without consideration. The total 14-day period established for consideration and approval of the federal laws in the Council of Federation, shall not apply to laws subject to mandatory consideration by this Chamber. The comparative analysis of Art. 106, 108 and 136 of the Constitution of the Russian Federation shows that the next federal laws shall be subject to mandatory consideration in the Council of Federation: relating to the federal budget; federal taxes and fees; financial, currency, credit, customs regulation, and money issue; ratification and denunciation of international treaties of the Russian Federation; the status and protection of the state border of the Russian Federation; war and peace, as well as the federal constitutional laws and laws of the Russian Federation on amendments to the Constitution of the Russian Federation. The consideration of laws that are subject to mandatory consideration in the Council of Federation shall begin no later than 14 days after their submission to the Council of Federation. If the Council of Federation within 14 days doesn’t complete the consideration of the law, it cannot be considered automatically approved and the Chamber should continue consideration of such law until the decision of its approval or rejection will be made. Consideration of the federal law at the meeting of the Council of Federation begins with the announcement of conclusions of the committee (commission) responsible for consideration of the law in the Council of Federation, the consolidated position of the authorities of the regions of the Russian Federation and the draft resolution of the Council of Federation, introduced by that Committee (Commission). In case of insufficient preparedness of the issue on the law consideration, the Council of Federation may decide to postpone this issue to the next meeting of the Chamber. This decision is adopted by a majority of votes of the members of the Council of Federation. Based on the discussion of the law adopted by the State Duma, the Council of Federation decides to approve or reject the law in whole or in part because of the unacceptability of certain provisions, sections, chapters, articles, and parts and paragraphs of articles. If the Council of Federation raises objections to specific provisions of the law, they shall be justified and contain the alternatives offered to replace those in respect to which the Chamber is expressed. If the Council of Federation adopted the decision on the approval the law approved by the State Duma, its text together with the resolution of the 224

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Council of Federation shall be directed by the Chairman of the Council of Federation to the President of the Russian Federation for signing and promulgation. The federal law rejected by the Council of Federation is passed to the committee of the State Duma responsible on this law, which considers the objections of the Council of Federation, gives opinions on them and makes proposals for overcoming the arisen contradictions for consideration of its Chamber. To remove the significant differences that arise in connection with the adoption of the federal law, the legislation provides the possibility to create a conciliation commission. The right to initiate the establishment of the commission equally provided to both Chambers of the Parliament, each of Chamber executes by the adoption of the appropriate decision. The conciliation commission shall be created on a parity basis of the Council of Federation members and State Duma deputies. The election of the commission members directly at the meeting of the Chambers ensures their official representation. The meetings of the Committee shall be held in the presence of a predetermined quorum. The member of the Committee shall attend its meetings. On the impossibility to attend the meeting of the conciliation committee for a valid reason the deputies of the State Duma or the members of the Council of Federation elected to its members, should in advance inform the co-chairman of the conciliation commission from their Chamber. Ensuring the work of the conciliation commission shall be provided by the structural department of the Chambers of the Parliament within their reference. The conciliation commission shall consider only those provisions on which there is a disagreement, and in this sense, the subject matter of the law in the Commission is limited within the scope of the disputed issue. It has the right to decide if to amend the sections of some articles of the federal law, for which there was no objection of the Council of Federation, only if this change is due to the new version of the articles generated on the basis of proposals of the Council of Federation, supported by the conciliation commission. It is very important in the discussion of controversial provisions to try to find a necessary compromise that allows to remove the existing contradictions between the Chambers and make a decision, which would suit both Chambers. At the end of the activity of the conciliation commission, the federal law shall be considered by the State Duma for the second time, during which the discussion of the proposals contained in the report of the conciliation commission, and voting on it takes place. The proposals of the conciliation commission shall be put on voting in a whole if no one insist on a separate voting on any of them. A law is considered adopted with the proposals of the conciliation commission, in case when for more than half of the total 225

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number of deputies of the State Duma vote for it. The State Duma has the right to propose the Council of Federation to continue work on the proposals of the conciliation commission rejected by it. In this case the appointment of other members of the committee by agreement of the parties is possible. The federal law adopted by the State Duma as amended by the conciliation commission is published by the commission with assistance of Machinery of the State Duma and within 5 days is sent to the Council of Federation with all necessary materials. If under the re-consideration of the federal law, the State Duma does not accept the proposals of the conciliation commission or express its disagreement with the rejection by the Council of Federation of the law as a whole; such a law shall be put on the voting in the earlier adopted edition. A law is considered adopted if not less than two-thirds of the total number of deputies of the State Duma will vote for it and then it is sent to the President of the Russian Federation for signing and promulgation by the Chairman of the State Duma, as the latter shall notify the Chairman of the Council of Federation. If the proposal for the adoption of the federal law, rejected by the Council of Federation, as amended by the conciliation committee will not get the necessary two-thirds of the votes in the voting at the State Duma, the federal law shall be considered as not adopted. The law is also considered as not adopted when it do not receive the required number of votes required for the adoption of the law, rejected by the Council of Federation, in its previously adopted edition and in this case the proposal to establish a conciliation commission is not supported. In our opinion, a situation also needs the settlement when the Parliament does not get the necessary votes to confirm its original decision on the specific provisions of the law that are rejected by the Council of Federation. In these circumstances, the position of the Federal Assembly Chambers should be considered as a coherent and the relevant provisions of the law are subject to cancellation. There is a special procedure for the adoption of the federal constitutional laws. In contrast to the ordinary laws, the federal constitutional laws are adopted by the established qualified majority in each of the Chambers of the Federal Assembly. This means that the constitutional law shall be adopted only if at least three-quarters of the members of the Council of Federation and at least two thirds of the total number of deputies of the State Duma vote for it. The Constitutional Court of the Russian Federation in the Judgement of April 12, 1995 No. 2p explained that due to p. 2 of Art. 108 of the Constitution of the Russian Federation the federal constitutional laws by the Chambers of the Federal Assembly are adopted separately. Initially the draft 226

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of constitutional law considered and approved by at the State Duma and after the approval by the State Duma is passed to the consideration and approval by the Council of Federation. Such law accepts the status of adopted law, if the decision on its approval is made by both Chambers of the Parliament. The content of Art. 108 of the Constitution of the Russian Federation shows that federal constitutional laws cannot be deemed as adopted until the approval of both Chambers of the Parliament has been obtained. Therefore, the existence of differences between the Chambers involves the use of special conciliation procedures. In some foreign countries, at the constitutional level the additional guarantees were created, ensuring the ability to the parliamentarians of thorough and deliberative consideration and discussion of the constitutional laws. Thus, according to the Italian Constitution, the laws amending the Constitution and other constitutional laws shall be adopted by each Chamber of the Parliament after two successive debates at intervals of not less than three months and approved by an absolute majority of members of each Chamber in the second voting1. According to the French Constitution a draft of organic law also passes the consistent consideration in both Chambers of the Parliament at constant informing by the Chambers each other on the results of the discussion of a draft and its articles, which helps to develop an identical text2. Special procedure for the adoption of the federal constitutional laws is also manifested in the fact that, being approved by the Chambers of the Federal Assembly, these laws cannot be rejected by the President of the Russian Federation and returned to the Parliament for reconsideration. The President whether there are objections to the adopted constitutional law or not, shall sign it in the version in which it was adopted by the Chambers of the Federal Assembly and promulgate it. The Constitution establishes a period within which the President shall sign the law — 14 days. The promulgation of the constitutional law is carried out by its publication in the official bulletins, in which the federal laws are published as well. In accordance with the Federal Law of June 14, 1994 No. 5-FZ «On the Procedure of Publication and Coming into Force of the Federal Constitutional Laws, Federal Laws, Acts of the Federal Assembly» (amended of December 25, 2012), the federal constitutional laws are sent for the official publication by the President of the Russian Federation and shall be published within 7 days after their signing. The special legislative procedures are established in respect of the federal constitutional laws on the admission to the Russian Federation or on 1



2



Ref.: The Constitutions of European countries / Editor-in-Chief L.A. Okunkov. Moscow, 2001. Vol. 2. 129 p. In the same. Vol. 3. 420–421 p. 227

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the establishment of a new region of the Russian Federation (p. 1, Art. 137 of the Constitution of the Russian Federation). The draft of the federal constitutional law on the admission of a new region of the Russian Federation is introduced to the State Duma exclusively by the President of the Russian Federation together with not entered into force an international treaty of admission to the Russian Federation of a foreign state or its part as a new region of which is recognized by the Constitutional Court of the Russian Federation correspond to the Constitution of the Russian Federation. The draft law should contain provisions specifying the name, status and boundaries of the new region, final and transitional provisions setting deadlines within which the new region shall to be integrated into the economic, financial, credit and legal system of the Russian Federation, as well as in the system of the public authorities of Russia. The draft law may contain other provisions arising from international treaties and protocols to it. The federal constitutional law on the admission the new region to the Russian Federation enters into force not earlier than the international treaty between the Russian Federation and the foreign state comes into force. The draft of the federal constitutional law on establishment of the new region of the Russian Federation can also be submitted to the State Duma by the President of the Russian Federation, if the relevant decisions were adopted on the issue of establishment of the new region of the Russian Federation at the referendums of the interested regions the Russian Federation. The draft law should contain provisions specifying the name, status and boundaries of the new region, final and transitional provisions setting the deadlines within which the following issues should be regulated: –– the formation of the state bodies of the new region of the Russian Federation; –– amendments to the federal law on the federal budget for the current year, if the admission of the new region of the Russian Federation requires a redistribution of the budget funds of the current year; –– the succession of the new region of the Russian Federation regarding the ownership of the interested regions of the Russian Federation in relations with the state bodies of the Russian Federation, other regions of the Russian Federation, foreign states, international organizations; –– the functioning of the federal executive authorities and the federal courts in the territory of the new region of the Russian Federation; –– the functioning of the state bodies and organization of the interested regions of the Russian Federation on the territory of the new region; –– the action of the laws and other normative legal acts of the interested regions of the Russian Federation in the territory of the new region. 228

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In accordance with the procedure provided for the adoption of the federal constitutional laws, the amendments to the Constitution of the Russian Federation are adopted. However, the procedure for the adoption of constitutional amendments has its own characteristics, due to their legal nature. In contrast to the federal constitutional laws, which are pursuant to the Constitution of the Russian Federation, the constitutional amendments can change the provisions of the Constitution of the Russian Federation, becoming its part. The proposal for an amendment to the Constitution is introduced to the State Duma by the subject of the right of initiative of such a proposal in the form of a draft law of the Russian Federation, providing a removal, addition, new edition of any of the provisions of Chapters 3–8 of the Constitution of the Russian Federation. The draft law should have a name that reflects the essence of the proposed amendment. Among the subjects of legislative initiative, set forth by Art. 104 of the Constitution of the Russian Federation, the right to introduce the proposals on the amendments to the Constitution is not vested on the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, as well as every deputy of the State Duma and member of the Council of Federation severally. As for the deputies of the State Duma and members of the Council of Federation, the introduction of the said proposals can be made only with the support of these proposals of not less than one-fifth of the number of deputies of the State Duma, or one fifth of the members of the Council of Federation. For the entry into force of the amendments their mandatory approval by the legislative bodies of at least two-thirds of the regions of the Russian Federation is required. The law on amendment to the Constitution of the Russian Federation is submitted to the legislative bodies of the regions by the Chairman of the Council of Federation not later than five days from the date of its adoption. The responsibilities of the Chairman of the Council of Federation include the publication of the information for the general public a notice, which includes the text of the law on amendment to the Constitution of the Russian Federation and the dates of its approval by the State Duma and the Council of Federation . The legislative bodies of the regions of the Russian Federation consider the law on the amendment to the Constitution of the Russian Federation not later than one year from the date of its adoption. The legislative bodies of the regions of the Russian Federation establish the procedure for the approval of these laws independently. It is important that the decision on the approval or rejection of the amendment to the Constitution of the Russian Federation should be sent by the legislative body to the Council of Federation within 14 days from the date of its adoption. 229

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The fact of the approval or rejection of the law on the amendment to the Constitution of the Russian Federation by the legislative bodies of at least two-thirds of the regions of the Federation is set forth by the resolution of the Council of Federation. In that case, if the law was not approved by the specified majority, it shall be considered as rejected and may be re-submitted to the State Duma, but not earlier than one year from the date of adoption by the Council of Federation of the corresponding resolution. The law on amendment to the Constitution of the Russian Federation, approved by the legislative bodies of at least two thirds of the regions is submitted referred by the Chairman of the Council of Federation to the President of the Russian Federation for the official signing and publication. The procedures for the adoption of financial laws that determine the procedure and the size of the funds flowed to the state treasury and spending of these funds in the process of state governance have certain singularity. The main financial law of the state is the law on the budget, which is adopted by a special complicated procedure. The draft law on the federal budget may be submitted to the State Duma by the Government of the Russian Federation. The presentation of this draft law is accompanied by a set of documents and materials, which the Government shall submit to the Parliament in connection with the formation of the budget. A draft law received by the State Duma shall be sent by the Chairman of the State Duma within 24 hours to the Committee of the State Duma on Budget and Taxes for examination on conformity with the requirements for its execution. Failure to comply with the proper execution parameters of a draft law entails its return to the Government of the Russian Federation for revision. A draft law introduced in compliance with the established requirements within three days shall be sent by the Council of the State Duma (between sessions — by the Chairman of the State Duma) to the committees, commissions of the State Duma and to the factions in the State Duma, the President of the Russian Federation, the Council of Federation, to the Government of the Russian Federation, the Public Chamber for comments and suggestions, as well as to the Accounts Chamber of the Russian Federation for signing. At the same time the Council of the State Duma (between sessions — the Chairman of the State Duma) appoints the Committee of the State Duma on Budget and Taxes responsible for the draft law on the federal budget, as well as the relevant committees for the preparation of its consideration by the Chamber. The drafts of the federal laws on the budget are subject to the extraordinary consideration at the meeting of the State Duma. The State Duma is 230

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considering a draft of the federal law on the federal budget for the next fiscal year and the planned period in three readings. The first reading of the draft law focuses on the discussion of the main directions of budget and tax policy, social and economic development of the Russian Federation for the next financial year, an overall assessment of the concept of draft law is provided, the basic principles and calculations on the relationship of the federal budget and the budgets of the regions of the Russian Federation are discussed. The presented draft of the budget is examined by the Parliament in general, including both revenue and expenditure part of it. On the results of the first reading, the State Duma decides to accept or reject the presented draft law on the federal budget. In the case of rejection in the first reading, a draft law as well is passed to a conciliation commission consisted of the representatives of the State Duma, the Council of Federation and the Russian Government to develop a coherent version of the main characteristics of the federal budget, or it is returned to the Government for revision. The draft resolution on this issue is introduced to the State Duma Committee on Budget and Taxes. If under the results of the conciliation commission, the State Duma do not make a decision on the main characteristics of the federal budget, the draft law on the budget in the first reading is considered as rejected again, which means at the same time a raising of the question of confidence of the Government. The subject-matter of the draft law on the budget in the second reading involves the distribution of the federal budget expenditures within their total volume adopted in the first reading. The expenditures are approved under sections, subsections, special-purpose articles and kinds of functional classification of expenditures of the federal budget. During the preparation for consideration of the draft law in the second reading, the State Duma Committee on Budget and Taxes within 10 days prepares a table of amendments to the draft of the federal law on the federal budget, and submits them to the appropriate specialized committees. The consideration of the amendments to the draft of the federal law on the federal budget by the State Duma Committee on Budget and Taxes is carried out with the obligatory presence of authorized representatives of the relevant committees who participate in the meeting of the Committee with an advisory vote. If there is no any authorized representative of the relevant committee at a meeting of the State Duma Committee on Budget and Taxes, the consideration of amendments of the relevant committee is postponed to another meeting of the State Duma Committee on Budget and Taxes, as informed by the relevant committee. At the repeated absence of an authorized repre231

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sentative of the relevant committee at a meeting of the State Duma Committee on Budget and Taxes, the consideration of amendments shall be made without his participation. If with the decision of the State Duma Committee on Budget and Taxes is not coincided with the position of the relevant committee for amendments to the draft of the federal law, a parliamentary group to overcome the differences is formed on the initiative of the relevant committee according to the decision of the State Duma Committee on Budget and Taxes. The deputy group is formed on a parity basis from the members of the State Duma Committee on Budget and Taxes and the members of the relevant committee of six persons. The coordination of the activities of the said deputy group is carried out by the one of the deputy of the Chairman of the State Duma, who participated in the work of the deputy group with an advisory vote on behalf of the Chairman of the State Duma. An official representative of the President of the Russian Federation in the State Duma and an official representative of the Government of the Russian Federation in the State Duma as well as the official representatives of the Government of the Russian Federation have the right to attend the sessions of the deputy group. The deputy group shall consider the amendments on which there were disagreements within up to two days. The decision to overcome the discrepancies adopted by a majority of votes of the members of the deputy group, and is documented with the protocol, which is signed by all persons participated at the meeting. The State Duma Committee on Budget and Taxes prepares summary tables of amendments to the draft of the federal law on the federal budget recommended for acceptance or rejection, and submits these tables to the Chamber for consideration. The amendments, discrepancies which have been overcome are moved to the tables of the amendments recommended for adoption or rejection in accordance with the decision of the deputy group; the amendments, discrepancies which have not been overcome — in accordance with the decision of the State Duma Committee on Budget and Taxes. A protocol of the deputy group to overcome the differences with the relevant tables attaching along with the tables of amendments is submitted for the Chamber’s consideration. At considering the draft of the federal law on the federal budget at the State Duma in the second reading, a representative of the State Duma Committee on Budget and Taxes in his report informs the deputies of the State Duma on the opinions of the relevant committees on the amendments included in the report of the conciliation deputy group. The discussion of the specified draft laws begins with the amendments on which the discrepancies have not been overcome. Thus, a representative of the State Duma Committee on Budget and Taxes and an authorized 232

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representative of the relevant committee can justify their positions in the speeches of up to three minutes. Every amendment included to the protocol of the conciliation deputy group is put to the vote the by the presiding personof the meeting of the Chamber. In regard to the discussing draft of the federal law on the federal budget, the presiding person initially puts for the voting an question on the adoption of the amendments that are recommended by the responsible committee for inclusion in the text of the draft law and in respect to which there is no objection of the entities of the legislative initiative. The author of the amendment, the representative of the responsible committee, as well as the deputy of the State Duma, or the representative of another subject of the legislative initiative who have the objections can justify their positions in the speeches of up to three minutes. After that, a question on the adoption of the relevant amendment is submitted for the voting. In the absence of objections all the amendments recommended to the rejection are put for the voting for rejection. At considering the draft law on the federal budget in the third reading, any amendment is not allowed. The draft law as a whole for the voting for the consideration in the third reading is put. The federal law on the federal budget adopted by the State Duma within five days from the date of its adoption is passed to the Council of Federation. The Council of Federation is considering the federal law on the federal budget within 14 days from the date of submission by the State Duma. At considering in the Council of Federation, the law is put for the voting for its approval as a whole. The federal law on the federal budget approved by the Council of Federation to the President of the Russian Federation for signing and promulgation is submitted within five days from the date of its approval. In case of rejection by the Council of Federation, the federal law on the federal budget is passed to overcome the existing discrepancies to the conciliation commission. The agreed version of the law is re-considered by the State Duma in a one reading. As a result of re-consideration the federal law on the federal budget adopted by the State Duma is submitted to the Council of Federation in the prescribed manner. In case of disagreement of the State Duma with the decision of the Council of Federation, the law on the federal budget shall be considered as adopted, if at least two thirds of the total number of the State Duma deputies revote for it. In case of rejection by the President of the Russian Federation, the federal law on the federal budget is submitted to the conciliation commission to overcome the existing discrepancies. At this, the conciliation committee includes the representative of the President of the Russian Federation. 233

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The federal law on budget as having a high priority for the functioning of the all system of public governance should be considered and adopted in time — bound period, in order to come into force from the beginning of the new fiscal year. § 4. The lawmaking process in the subjects of the Russian Federation

The legislative process of the regions of the Russian Federation has both common features as peculiar to the legislative process on the federal level, and some of the distinctive features of the organization of this type of activity. In accordance with the Federal Law «On the General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation», the right of the legislative initiative in the legislative body of the region of the Federation belongs to the deputies, the highest official of the region, representative bodies of local self-government. The Constitution (Charter) of the number of the regions of the Russian Federation expands this list. Thus, in the Republic of Adygea, in the Rostov Region, the electoral commission of the region has the right of the legislative initiative on the matters of its reference; in the Republic of Kalmykia, in the Irkutsk, Novosibirsk Regions this right is granted to the committees and commissions of the legislative body of state power; in the Republic of Tatarstan, the Krasnodar Territory, the right of legislative initiative is granted to the Council of Trade Unions. Many of the regions of the Federation provide the right of legislative initiative in respect to the prosecutor. Extending the list of subjects, of legislative initiative is not always justified. For example, the position of the Republic of Kalmykia, the Tambov and Lipetsk Regions is doubtful. They consider to be necessary to include the Chairman of the legislative body in this list. Selection of the Chairman as an independent subjects of legislative initiative does not give him more real powers, but may create confusion in the application of the studied of regulatory norm in practice. At the same time, taking into account the nature of the Parliament as a representative collegial body, it is necessary to have regard to the principle of equality of all the deputies in the legislative process, which means equal opportunities in the execution of their activities. In the Irkutsk and the Oryol Regions, the deputy factions are considered as the subjects of the legislative initiative. It is also cannot be considered as justified. The factions as the spokesmen of specific political views sometimes unwittingly intend to reflect them in the future law that does not always coincide with the public interests. The presence of this circumstance, on the one hand, and the desire of the factions to bring their draft 234

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law through the Parliament — on the other, can create a conflict situation in which the development of a unanimous decision becomes very difficult1. It hardly can be considered as legitimate the granting of the right of legislative initiative to the federal state bodies by of the subjects of the Russian Federation (the Kemerovo and the Kursk Regions — to the Office of the Ministry of Justice of the Russian Federation in the of the region of the Russian Federation; the Volgograd Region — to the Office of the Russian Ministry of Taxes and Charges in the Region of the Russian Federation; the Penza Region — to the Chief Federal Inspector in the region of the Russian Federation). In fact, the legislation of the regions of the Russian Federation made the accretion of power of these bodies, whereas the regulation of these issues is in the jurisdiction of the Russian Federation. As a rule the right of the legislative initiative is realized by the introduction of the draft laws and amendments to the legislative body of the region of the Russian Federation. The possibility of the execution of the right of the legislative initiative in the form of submitting the proposals on the drafting laws is recognized by the main laws of a number of the regions of the Federation. The practice some of the regions of the Federation is on the way of providing the right of the legislative initiative implementation in the form of a legislative proposal only for a certain scope of subjects granting this right often in respect with the initiative of the deputies (the Republic of Adygea, the Kursk Region). At this, the regulations of the legislative bodies of the regions of the Federation include the procedures of introduction and consideration of the proposals of deputies, the development of the draft laws on their basis with the help of specially established working groups2. In some regions of the Federation, the citizens have right to exercise the legislative initiative in the form of a legislative proposal. Such right, in particular, is granted to the people of the Astrakhan Region. In the Udmurt Republic the citizens can use a form of a legislative proposal for amending the Constitution of the Republic. The right of the citizens of the Magadan Region to appeal to the legislative body is recognized. The legal confirmation of the execution of legislative proposal as the only possible form of the execution of the people’s legislative initiative corresponds to the world parliamentary practice. 1



2



Ref.: A.I. Abramova. The procedure for the adoption of regulatory legal acts (the lawmaking process). In the book: The problems of the lawmaking of the regions of the Russian Federation: Scientific and methodical manual/Editor-in-Chief A.S. Pigolkin. Moscow, 1998, 122 p. Ref.: A.I. Abramova. The legislative idea and form of its realization // Journal of Russian law. 2010. No. 12. 68–69 p. 235

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For example, according to the Law of Austria of July 10, 1963 on the national initiative, a draft law, prepared by the citizens, shall contain «only one proposal, introduced as the national initiative»1. While introducing a draft law to the legislative body, the need to comply with certain prescribed requirements is prescribed. Among those are: rationale for adoption of the law; financial feasibility explanation — in the case of introduction of a draft law, the which execution requires additional financial expenditures; list of legislation acts of the region of the Federation to be adopted, changed or cancelled in connection with the adoption of this law, and others. In some regions of the Federation there is a practice according to which the introduced draft law is submitted together with the documents containing information on state bodies, public associations, institutions, organizations and persons involved in the preparation of the draft law has. For example, in the Republic of Buryatia the information both on the subject of legislative initiative, that have introduced the draft law, and on the bodies and persons involved in its development is attached to the draft law submitted to the People’s Khural. The information on the subject of the legislative initiative are placed in the top right corner of the first page of the draft law text, and information on the persons and bodies, involved in preparation of the draft law — at the end of the text. Many regions of the Federation provide as a separate provision on the constitutional level, a special requirement for the introduction to the legislative body of the financial draft laws — on the introduction or cancellation of taxes, on exemption from their payment, on use of the financial obligations of the region of the Russian Federation, other draft laws, involving expenditures covered by the budget of the region of the Russian Federation. Such draft laws are subject to consideration by the legislative bodies of the region of the Russian Federation only upon the conclusion of a supreme official of the region or recommendation of the said person. This conclusion is submitted to the legislative body of the region of the Russian Federation in the period set by the Constitution (Charter) of the region of the Russian Federation which cannot be less than 14 days. The draft law that meets all requirements for its execution is appointed by a committee responsible for preparing the draft law for consideration at the plenary session. The Regulations of legislative bodies of a number of the regions of the Federation provide the time limits for the consideration of the draft laws. Thus, not only the terms of consideration of the draft law by the responsible committee (the Republic of Tatarstan), but the general terms of its consideration in the Parliament (the Altai Territory) are settled. 1



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Ibid. 70 p.

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For elaboration of on the draft law, the Committee establishes a working group, which may include deputies, who are not the members of the Committee, representatives of the relevant subject of the legislative initiative, as well as representatives of public authorities and other organizations, experts and specialists. By the decision of the Committee it is possible to submit of the draft law to the state bodies and other organizations for the preparation of conclusions, proposals and comments, as well as for the conduction of scientific expertise. Based on the preliminary work, the Committee prepares a conclusion containing a reasoned assessment of the draft law and the recommendation for adoption or rejection. The draft law, prepared for the consideration by the Parliament and the materials thereto is submitted by the responsible committee for inclusion in the agenda of the next meeting of the Parliament. The procedure for the consideration of the draft laws in the legislative body of the region of the Russian Federation is usually carried out in two readings. During the first reading, the main provisions of the draft law are discussed and proposals and comments in the form of amendments are made. On the results of consideration of the draft law in the first reading, the legislative body adopts or rejects it. The draft law can be submitted for further consideration to the responsible committee or to another body for its recommitment. It is interesting to note a provision established by the Regulations of the Oryol Regional Council of People’s Deputies, which provides that, if the amendments approved by the committee in preparing a draft law for the second reading are amending and supplementing the content or structure of the draft law the committee is entitled, to make a proposal for consideration of the draft law as amended. At the first reading, the new version of the draft law is considered. The consideration of the draft law in the second reading involves discussion and adoption of amendments, as well as the adoption of the law as a whole. If the law is not adopted, the question on continuing the work on the draft law or its rejection is discussed. The certain regions of the Federation established the regulatory provision that determines a time interval between the first and second readings of the draft law. Thus, the Regulations of the Tambov Regional Duma contains a rule prescribed the conduction of two readings of the draft law at two separate meetings which to be held on different days. The experience of the Komi Republic is of interest. According to the Regulations of the State Council of the Komi Republic, if the draft law adopted in the first reading is not introduced within one year from the date of its adoption in the first reading for the consideration in the second reading, the consideration of this draft law is included in the agenda of the next meeting of the State Council. Upon consideration of this 237

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issue a proposal to continue the work on the draft law is put for the voting. If the decision is not taken, then the draft is considered to be removed from consideration without the additional voting, that is subject to the relevant decision. In the Parliaments of some regions of the Federation the consideration of the draft law consideration is not finished with the second reading, but another discussion of the draft law at the plenary session is held- the third reading (The State Council of the Republic of Tatarstan, the Legislative Assembly of the Irkutsk Region, the Regional Duma of Smolensk). If the draft law is considered, in three readings then it is adopted as a whole in the third reading. In the third reading the considered draft law cannot be amended or be amended in exceptional cases, for example, in order to ensure its conformation to the norms of the federal legislation and the legislation of the region of the Russian Federation. During the third reading, the Parliament can decide to return the draft law to the second reading. According to the Federal Law of October 6, 1999 No. 184-FZ «On the General Principles of Organization of Legislative (Representative) and Executive State Bodies of the Regions of the Russian Federation» (as amended on May 7, 2013) the laws of the region of the Russian Federation shall be adopted by a majority of votes of the established number of deputies. There are two types of such majority — simple and qualified. As a rule, in the regions of the Federation the laws amending the basic legal instruments (the Constitution, the Charter, the Code) are adopted by a qualified majority of votes. In the Republic of North Ossetia — Alania, the constitutional laws are adopted in the same manner. The exception is the Republic of Sakha (Yakutia), where the procedure, provided the necessary qualified majority in voting in respect of all laws adopted by the Legislative Assembly is established. There are particularities of adoption of a law in the two-chamber Parliament. A law adopted by one of the Chambers is submitted for the approval to the other Chamber of the representative body. At this, the approval of the law by the second Chamber in a similar way to the federal legislative process is possible on the results of its consideration as, or without consideration. Some laws (for example, constitutional laws on the budget, tax regulation) cannot be considered as adopted without consideration by both Chambers. In case of rejection of the law by the second Chamber, the Chambers may conduct the conciliation procedures or overcome this decision by the Chamber, which adopted this law (at least two-thirds of the total number of deputies). The law of the region of the Russian Federation, as well as a federal law can come into force only after its signing and promulgation. The signing and promulgation of the laws of regions is the prerogative of the supreme 238

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official (head of the supreme executive body) of region of the Russian Federation. The law adopted by the regional Parliament is submitted in terms, prescribed by the Constitution (Charter) and the law of the region of the Russian Federation. The supreme official authenticates the law with his signature or rejects it. In a number of the regions of the Federation there is a rule, providing that the law not signed in time by the supreme official and in the absence of its reasoned rejection shall be promulgated under the signature of the Chairman of the legislative body (the Republic of Mordovia, the Leningrad, Irkutsk, Novosibirsk Regions). Some of the regions of the Federation simultaneously provide an opportunity for the supreme official to promulgate the law with his amendments, if the Parliament did not held a re-consideration of the law or its provisions, causing objections of the supreme official in a designated period. This circumstance is considered as the agreement of the Parliament with the objections made by the supreme official (Irkutsk Region). In case of rejection by the supreme official, the law can be approved in the earlier adopted version by the majority of not less than two-thirds of the established number of deputies. The supreme official is obliged to sign and promulgate the law, adopted by the legislative body to overcome a veto. At the same time, the Parliament could agree with the motives of the law rejection and adopt it, taking into account comments and suggestions of the supreme official or even removed from further consideration as a rule. In the two-chamber Parliament, both Chambers overcome veto on the law, if they are mandatory participants in the legislative process. In the legislative activity of the certain regions of the Federation, not signing by the supreme official of the re-adopted law entails the same legal consequences as in the case of not signing by him the law on time: the law shall be signed and promulgated by the Chairman of the legislative (representative) body. Thus, the Charter of the Tyumen Region provides that the law adopted at the second meeting of the Regional Duma in the previous version shall be signed by the Governor of the region within three days of its receipt. If during this period the Governor does not sign the law, the law enters into force without his signature. In recent years, the practice of the law recommitment of the law rejected by the supreme official by a special committee prior its re-consideration by the Parliament obtains a wide circulation. The procedure of establishment and functioning of this type of conciliation commissions differs at the regional level. In the Moscow and Saratov Regions, the commission is formed from the deputies by the decision of the legislative body. The commission is entitled 239

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to prepare and submit for the Parliament’s consideration of the proposals agreed with the supreme official on amendments and supplements made by him. In the Irkutsk Region the conciliation commission may be established with the consent of the Governor. The issues on the members of the commission, its formation, and appointment of the Chairman are decided by the Legislative Assembly with the participation of the Governor’s representative. In the Oryol Region, the initiative on the establishment of the conciliation commission belongs to the Chairman of the Regional Council of People’s Deputies, the Governor, the Committee of the legislative (representative) body. The Commission is formed on parity basis of the deputies and representatives of the regional government, for a period not exceeding two months by the decision of the Council of People’s Deputies. In addition, each party determines the Co-chairmen of the commission, who shall alternately conduct the meetings. Sometimes, the elaboration of a common position on the adopted law through conciliation procedures is not provided, and the conflict remains. If the motive for rejection of the law, according to the senior official, is contradiction of the law to the Constitution of the Russian Federation, the federal laws, the Constitution (the Charter) of the region of the Russian Federation, he has the right to challenge such legislative act in court. The law of the region of the Russian Federation shall come into force after its publication in the Official Journal of this region. At the same time, the laws on the protection of the rights and freedoms of man and citizen shall enter into force no earlier than 10 days after their official publication. Today, the arrangement of legal monitoring is very important for the analytical support of the legislative activity of the Parliament. In this respect it is very interesting to note the experience of the Stavropol Territory, where a special law on the implementation of the State Duma of Stavropol Territory monitoring for the implementation and enforcement of laws on the Duma’s Committees has the responsibility for the implementation of the monitoring for the implementation and enforcement of the main provisions of the adopted laws during the term of their validity. Responsible Committee, which is appointed by the Resolution of the Duma, has developed the procedures for monitoring. Information on compliance and enforcement of certain laws is brought by it to the attention of deputies of the Duma at least twice a year. On a proposal by the relevant committee, the Duma gives assessment of compliance and enforcement of laws and, if necessary, decides on the preparation of amendments and (or) supplements to the legislative acts or declaration of lost force1. 1



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Ref.: The collection of the laws and other legal acts of the Stavropol Territory. November 2002. No. 11 (101). 9–11 p.

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§ 5. The planning, coordination and expertise in the lawmaking process

An important organizational component of the legislative process is the planning of legislative activity, which involves the choice of the most appropriate legislative decisions on the practical execution of relevant measures of legal impact and is aimed at improving the efficiency of activity on the preparation of legislative acts, on the organization of monitoring of compliance with the a dead line of this activity, correspondence of a form of a specific legal act to the content of the legal problem settled by the act. In case of accumulation planned legislative decisions allow to determine what changes in the legal system shall be implemented to ensure that it was able to solve the urgent needs of social and political development, serve as a source of information for the subjects of lawmaking activity. The specificity of this type of planning is that acts that have by their legal nature a fundamental importance and aimed to the normalization of relations that need stable, designed for long-term legal regulation serve as an object planning. It is impossible not to take into account the fact that the solution of problems revealed in the planning of legislative activity, requires the coordination of interests and positions of all its participants, proper coordination of their actions in the sphere of lawmaking. In the practice of the Russian Parliament’s activities, the planning of the legislative activity was introduced in the autumn of 1994. Currently, the legislative activities of the Federal Assembly is carried out according to an exemplary program of legislative activity of the State Duma, received for the period of the current session of the Chamber and calendar of the issues consideration for the next month composed on its basis. The program is elaborated by the Council of the State Duma and approved at the first meeting of the Chamber. The decision on approval of the program is executed by the relevant Resolution. At preparing the draft of the program, the proposals of the State Duma Committees are taken into account. However, the Committees, in accordance with the sphere of their activity shall approve their own programs of law — drafting activity for the current session. The involvement of the Committees in work on planning of the legislative activity extends the scope of participants of this process and contributes to the uniform distribution of the load between the committees in the preparation of draft laws for consideration at a meeting of the State Duma. The program of the legislative activity of the State Duma applies only to those laws that are subject to priority consideration. Thus, the name of the draft law shall be indicated; the subject of the right of legislative initiative; the date of introduction of the draft law in the State Duma, its regis241

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tration number; the Committee, which is appointed responsible for the passing of the draft law in the State Duma; a list of committees — subperformers; the terms of consideration of the draft law by the State Duma. With respect to the draft law, which was not adopted during the previous session, as the law the date and the actual result of its consideration shall be specified. The draft laws are allocated on the relevant thematic field of the program: state building and constitutional rights of citizens; economic policy; social policy; budget, tax, financial legislation; defense and security; ratification of international treaties of the Russian Federation. The prepared program of the legislative activity in accordance with the decision of the State Duma of its approval is passed to the President of the Russian Federation, Council of Federation of the Federal Assembly, committees and commissions of the State Duma, factions of the State Duma, Government of the Russian Federation, legislative bodies of the regions of the Russian Federation, the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation. The possibility to supplement the prepared program at the stage of its implementation is not excluded. This provision is based on the need of urgent adoption of legislative act, which is essential for the relevant sphere of public life and ensuring the integrity of legal regulation. Analysis of the practice of modern planning of legislative activity shows that it is limited to the scope of the internal organization of legislative activity of the State Duma. The program of legislative activity is formed from the number of draft laws for which have already taken decision on their adoption for consideration by the Parliament, and reflects the intentions of the legislator about the sequence of consideration of these draft laws. Such a procedure for the formation of the program not always allows to identify and fix the real priority of a specific law in the legal regulation of public relations, to determine the actual need for priority consideration of any draft law by the Chambers of the Federal Assembly. The fact, that the program is called the «exemplary», says about its unreliability. In practice, it is manifested in the low efficiency of the program performance, adjustment of its content for the duration of the actual effect. There are cases when the time provided for the execution of the program is not enough to prepare and adopt a separate law that encourages to postpone its consideration at the next session and leads to an overload of the program by «old» draft laws. The search for effective ways of planning of the legislative activities has generated the idea of creating a single state program of legislative activity1. 1



242

Ref.: Concept of development of the Russian legislation / Editor-in-Chief T.Y. Khabrieva, Yu.A. Tikhomirov, Yu.P. Orlovsky. Moscow, 2004. 27 p.; A.A. Kotenkov. We need a state program of legislative activity // Southern Federal. 2005. March 30.

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The advantage of planning in the proposed form is that it provides the perspectives of development of the Russian legislation, solves the problem of definition and mobility (due to change of life circumstances) of the substantive priorities in the law preparatory work, a rational hierarchy and sequence of works on formation of the legislation are established. It is very important that the system of single planning creates prerequisites for the full and optimum use of the potential of state bodies involved in lawmaking, allows combining their efforts, organizing the activities for the drafting of legislative acts. In respect of the subjects of the legislative initiative, whether it is a legislative body the President and the Government, there is a task of integrating of lawmaking activities planned by them in the general system of measures to achieve the main task — the establishment of strong legal framework of the Russian state. Performance of this task requires that proper planning of legislative activities carried out by its subjects will be produced in close relationships and organically incorporated into the state planning in the preparation by these subjects of their legislative initiatives. Thereby, the consistency of legislative activity, the stability of mechanism of legislative regulation are guaranteed. The important factor of the considering form of planning in the context of a federal system of Russia is the ability to coordinate plans of lawmaking activities of the federal and regional levels. Today the certain steps in this direction are made. Many regions of the Federation legislatively set forth a provision providing that the work plan of the legislative body of the region of the Federation is formed by taking into account the programs and plans of work of federal state bodies1. In a number of regions the practice of including in their own programs and plans of legislative activities of a special section providing the preparation of draft of the federal laws and their submission to the State Duma of the Federal Assembly in the procedure of execution of the right of legislative initiative by the legislative body of the region of the Federation is established (Moscow, the Samara Region, and others). The introduction of the single planning of legislative activity promotes a concerted strategy in solving the problems of the state and social development, based in relation to the present situation on the balance between the interests of the Russian Federation and its regions. The accumulated experience of planning allows to outline some of the main approaches to the development of the state program of lawmaking activity. The formation 1



For details, ref.: Yu.A. Tikhomirov, L.V. Andrichenko. Problems of development of the legislation of the Russian Federation // Constitutional and Municipal law. 2009. No. 3. 243

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of the program is carried out with the direct participation of all subjects of legislative activity on the basis of advancement of the proposals for the development of specific draft laws by them. In the process of consideration and evaluation of the proposals, it is important to establish the need for legislative regulation of the scope of social relations that constitute the ideological basis for the planned legislative act. It should be pointed out in a quite accurate and clear manner that in this case from the totality of methods of legal influence only the law can serve as the only possible form of response. The proposal includes a working name of the draft law, estimated timetable for its preparation, information about executors (co-executors). The particular importance is attached to the rationale of the draft law that is intended to reflect the novelty of the proposed legislative regulation, the real need to adopt the specific legislation, branch affiliation of the proposed draft, its compliance with the current legislation. It seems appropriate to specify in the reasoning whether the law belongs to the exclusive jurisdiction of the Russian Federation or a subject of its regulation are matters of joint jurisdiction of the Russian Federation and its regions. Compliance with this condition contributes to the optimization of the general and special provisions in the legislation of the regions of the Federation, provides their sovereign rights, prevents the violation of legislative competence of the Federation as a whole so each of its regions. Determining the optimal scope of the planned legislative acts it should be taken into account the need to ensure continuity, consistency of acts, a single concept of law development. It is possible to elaborate the program on the bloc (package) principle of the arrangement of the planned to be adopted drafts of legislative acts with the separation of drafts reflecting the priorities of legislative activity and requiring urgent adoption. The priority legislative acts can include acts that have a special social and political significance and serve as the key acts, basic regulatory for that sphere of public life that needs transformation. It is important to ensure consistency in the development and adoption of proposed legislative acts, their thematic, functional relationship, optimum ratio of acts depending on their classification criteria (reasons): statutory, thematic, special, codified, governing general or specific issues. The planning document shall necessarily set the time limits. It seems appropriate to establish in program of the legislative activity, terms for the development of the draft laws, and terms of its consideration by the legislative body. This will help to get rid of such negative attribute of modern legislation, as a violation of the regularity under the preparation and adoption of legislative acts and provide the timeliness of their issuance to avoid errors in 244

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the order precedence and consideration of the draft laws by the legislative body. When determining the period of execution, it is important to take into account the type of the planned act, the difficulty of the planned legal matter. The planning period shall cover the time sufficient for a comprehensive study of the future act: the collection of the necessary information for predicting the effectiveness of the legal rules set forth by the act; consideration of public opinion, opinion of qualified experts in the relevant sphere of legal regulation; study of the social and economic, political and other kinds of factors motivating the need of the adoption to the act and promoting its implementation. The planning of the legislative activity assumes the setting possibly of options of correlation between the program of legislative activities and the current proposals for the issuance of the act that can be prepared both under the instructions and at the sole discretion of the subject of the right of legislative initiative. The foreign experience shows that the analysis of the proposed legal decision usually includes an assessment of its feasibility and possible consequences of the adoption, in particular: how the proposed decision relates to the already established legal priorities; what is the volume of financial and other resources required for the execution of the proposed decision; what consequences will have the implementation of decision for the relations between the Federation and the regions of the Federation; if the extralegal alternatives instead of the adoption of any specific legislative act are possible1. From the perspective of efficiency of planning of legislative activity, is the question of its coordination with the planning of the economic and social development of the country in essential. In addition to the reflection of the substantive priorities of social and economic development in the program of the legislative activities, its conformity with the terms set in the documents of program and target purpose is recognized. This refers to a temporary extension of the boundaries of the legislation planning, which would allow to fully aligning it with the period of operation of all types of program and goal-oriented documents. Failure to comply with the specified condition can lead to the fact that the publication of the act included in the program law-drafting activity to ensure the activities provided by the program and target documents will be carried out in the lead-time or this time may draw out, that could adversely affect the execution of such activities. In the context of multi-level goal-oriented planning (short-term, medium-term, long-term), it is very difficult to solve 1



Ref.: Manual on lawmaking: Canadian experience for Russia / Editor-in-Chief S.V. Kabysheva. Moscow, 2009. 18–21 p. 245

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the problem of synchronization between the planning time of the legislative activity and planning time of social and economic development of the country. In the circumstances it seems to be optimized the formation of a single program of lawmaking activities without establishment of certain specific period of validity. In the process of its execution the amendment of such a program is produced by the newly received proposals for the preparation and adoption of legislation with a life expectancy of execution of these proposals. The adoption of the plans of the current legislative activity of the Parliament is possible on the basis of a single program of lawmaking activities. Achieving of the goals of consistent planning of legislative activity implies fulfilling the task of coordination of legislative and sublegislative regulation. The importance of this coordination caused by the fact that the effective operation of the law, as a rule, is related to the adoption of appropriate regulations aimed at implementing the rules set out by the law. The modern lawmaking practice shows many examples when the sublegislative regulations are adopted since a long time after the enactment of the law, or not adopted at all, which inevitably leads to inaction of the law, its non-performance. The situation becomes complicated, when the law contains a large number of reference rules to the acts designed to refine its regulation or refers the regulation of certain issues to a field of sub-regulation. The enforcement of the law is difficult in the case of advanced regulation by secondary legislation of those relations, which are the subject of the law, duplicating statutory texts by them (sometimes literally). In order to strengthen the regulation action of the laws, it seems to be appropriate the formation of the list of legal acts, which ensure the implementation of these laws in close relationship with the program of legislative activities. Thus, the requisite conditions will be created, allowing to match the terms of adoption of a specific law to the time, required for the adoption of appropriate secondary legislation, i.e. to conduct the preparation of the secondary legislation in parallel with the preparation of the law. Improving the planning system of the legislative activity highlights the problem of its regulations. The law on normative legal acts could become the basic act governing this process in complex, the need of adoption of which is defended by the national jurisprudence. The law is intended to establish general principles of organization of planning activity, specify the duties of certain state bodies and officials related to the planning, create the conditions for the implementation of the strategic priorities of the country, and provide the sustainability of the procedures of development and approval of a planning document, and give it binding legal force. 246

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The important role in the legislative process is given to the examination of the draft laws. The quality of the examination largely determines the creation of effectively operating law. It ensures not only an adequate level of preparation of the specific act, but also contributes to the formation of scientifically based system of the adopted legislative decisions, their consistency and the identification of the negative consequences that can cause their implementation. Using the results of the expertise in the legislative activity helps to translate new structural ideas into professional language of legal categories and thereby increase the coefficient of the regulatory impact of the adopted act. Today the institute of the expertise is being approved in the practice of the Russian lawmaking. Draft laws are examined by domestic experts, discussed with the involvement of reputable foreign experts, international organizations (ILO, the UN Commission on Human Rights, the International Monetary Fund, the Economic Commission of Europe, and others). In accordance with the Regulations of the State Duma of the Federal Assembly, the expertise is made by the Central Office of the State Duma, as well as the state organizations, ensuring the activities of both Chambers of the Federal Assembly. The organization of the independent expertise of the draft laws is possible. During the expertise, the prepared draft is subject to the analysis and evaluation in terms of its content and form. The expert analysis involves the study of the draft intended to clarify content of the issues regulated by it, as well as the identification of the problems which might arise in practice in connection with the adoption of the prepared act (at the extent to which the draft contributes to their decision)1. Based on the analysis, an expert, relying on his knowledge in a particular sphere, intended to assess the proposed draft for the advantages and disadvantages; the social significance on the adopted decisions; relation of the draft with others already involved legal and non-legal mechanism. The expertise of the draft laws involves their assessment both from a legal point of view and in terms of subject orientation. The legal expertise includes an assessment of the draft for its compliance with legal principles; proper use of legal categories; relevancy of the choice of the act form; compliance of the draft provisions with modern achievements of domestic and foreign legal science and legal practice. The aim of the legal expertise is to compare the prepared draft with the existing legislative acts to determine its inclusion into the legislative system. At this, the correlation of the individual requirements of the draft itself is 1



Ref.: A.I. Abramova, T.N. Rahmanina. Expertise of draft laws and regulations. In the book: Rule-making legal technique / Editor-in-Chief N.A. Vlasenko. Moscow, 2011. 230 p. 247

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estimated, contradictions and inconsistencies in the text are revealed. Within the framework of the legal expertise it is possible to conduct the study of the draft in order to identify the provisions, creating conditions for all sorts of corruption manifestations. The specialized expertise is the analysis of the specific problem that is the subject of the future law, — economic, financial, technical, environmental, social, psychological and so on. A variety of specialized expertise is linguistic expertise, which is reduced mainly to the assessment of compliance of the text of the introduced draft law with the standards of modern Russian literary language, taking into account functional and stylistic features of legal texts. It is noteworthy, that this kind of expert analysis is widely used in the practice of foreign countries. For example, in the Ministry of Justice of Canada a group of linguists who are a part of the Department of Legislative Activities is formed. In the Great Britain, there are several parliamentary advisers specialized on neurolinguistic law issues. From the content of p. 2 Art. 112 of the Regulations of the State Duma of the Federal Assembly, the Legal Department of the Machinery of the State Duma on behalf of the State Duma Council or the responsible committee shall conduct a legal expertise of the draft law for compliance with the Constitution of the Russian Federation, federal constitutional laws, basic branch legislative acts within a specified period of time. In addition, an examination of the list of federal legislative acts to be adopted or considered to have lost force, suspension or amendment in connection with the adoption of this draft law shall be conducted. Responsible committee can charge the Legal Department of the Machinery of the State Duma to hold a linguistic expertise of the draft law. The legal expertise is carried out after the formal introduction of a draft law for consideration of the legislative body. If the subjects of legislative initiative introduce the alternative draft laws in addition to the main, draft law expertise is carried out for all variants of the introduced draft law in order to identify benefits in resolving a problem situation by each of them. In preparation of a draft law for the first reading, the general idea, the concept of the future law, and its compliance with the pressing needs of the country development, the level of legal and technical elaboration are subject to assessment. The expertised preparation of the draft law for a second reading is of the greatest importance. At this stage the in-depth analysis of all the provisions of the draft law, taking into account its amendments shall be made. The Regulations of the State Duma provides a clause-by-clause legal and linguistic expertise of the draft law, as well as an independent expertise of amendments to the draft law to meet their compliance with the Constitution of the Russian Federation and federal constitutional laws. An expert 248

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assessment of an amendment for its textual and meaning embeddedness in the future law is of great importance. Today a special role in the creation of legislative act is deserved to a scientific legal expertise. According to p. 1 Art. 112 of the Regulations of the State Duma of the Federal Assembly under the decision of the responsible committee, the draft law with an enclosed letter signed by the Chairman of the Chamber Committee may be submitted for scientific expertise to state bodies and other organizations. As part of the expert-analytical activity, the science aims to study factors contributing the improvement of the effectiveness at the adoption of legal decisions including an expert system of identification of the priority areas of the legislative development. The factors negatively affecting the quality and effectiveness of legislation are subject to the system analysis, the methods of their neutralization are developed. Scientific analysis includes as an essential component a prognostic evaluation of the effectiveness of the future law. The scientific expertise requires the active participation of the leading scientists and specialists of the relevant spheres of knowledge in it. In the current terms its conduction by the research institution as a whole is very effective. In this respect, the experience of the Institute of Legislation and Comparative Law under the Government of the Russian Federation is quite illustrative. Due to the presence of experts of virtually all spheres of legislation, it provides legal expertise on a wide range of matters of the developed draft laws. The activity of the expert councils under the legislative body can be recognized effective. The composition of such councils include highly qualified specialists, having authority in the scientific community and in the community of practitioners. At the meetings of the expert councils the topical issues of the theory and practice of lawmaking activity are discussed, the specific draft laws introduced to the State Duma’s consideration are analyzed. The relatively new type of expertise introduced into the practice of lawmaking activity of the Parliament is the public expertise of the draft law, conducted by the Public Chamber of the Russian Federation. The public examination is intended to determine the degree of integration and coordination in the process of legislative regulation of the interests of different social groups and sectors of society. Thus, in advance the future legislative decision is provided by some support of the public interest. In accordance with the procedure established by the regulation norms, proposals of the Public Chamber of the Russian Federation on the draft law, prepared in the form of conclusions, are submitted to a Committee of the State Duma appointed as the responsible for this draft law. 249

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The member(s) of the Public Chamber of the Russian Federation shall have the right to justify the presented conclusion on the meeting of the Committee. The conclusion of the Public Chamber of the Russian Federation is submitted by the responsible Committee to the Council of the State Duma for introduction into consideration by the State Duma along with the draft law, prepared for consideration by the State Duma in the first reading, and materials to it. The members of the Public Chamber of the Russian Federation authorized by the Council of the Public Chamber may attend the public meetings of the State Duma during the consideration of the draft law, that are subject to the expertise of the Public Chamber. The norms of the Federal law of April 4, 2005 No. 32-FZ «On the Public Chamber of the Russian Federation» should serve as the main reference point in the execution of the expert activity by the Public Chamber. The conclusions of the expert are intended to represent the most significant aspects of the proposed solutions of the specific legal problem. It is necessary to make a judgment about the nature of the problem situation requiring legislative regulation, and on the best ways and means of its resolving. Particularly it should be noted what positive and negative effects in economic, social, political, legal and other terms may be a result of the proposed decision, whether its adoption is well-timed, taking into account the tendencies and prospects of development of the relevant spheres of legislation1. The assessment of conformity of the adopted law in its expenditure part of those funds that can be allocated by the state to cover these expenses is equally important. In this respect, the opportunities of the Accounts Chamber of the Russian Federation should be more actively used, one task of which is the conduction of a financial expertise the drafts of federal laws, providing expenses the covered by the federal budget or influencing on the formation and execution of the federal budget and budget of federal extra-budgetary funds. In some cases, taking into account the profile of the considered draft law it is expedient to conduct a comprehensive expertise. Such form of the expertise organization is allowed to invade into the sphere of the different in nature social relations, assessing the act with the economic, social, political, administrative and other aspects. Used herein an interdisciplinary approach helps with sufficient detail to evaluate the proposed multifaceted in the legal decision, makes it possible to discover, for example, the factors of the systemic nature such as regulatory conflicts. The Institute of the expertise of the draft legislative acts is being developed in the regions of the Russian Federation. 1



250

Ref.: A.I. Abramova, T.N. Rahmanina. Expertise of draft laws and regulations. In the book: Rule-making legal technique. 232 p.

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The expertise, carried out at the level of the regions of the Russian Federation, involves the assessment of the draft law of the region of the Federation from the point of view of: its compliance not only with the Constitution of the Russian Federation, federal law but with the legislation of this region of the Federation; correlation of the content and form of the act with the volume and nature of the competence of the legislative body; sufficiency of funds required for implementation of proposed regulation. It is important to take into account the specificity, which is observed in the volume of the relations regulated by the legislative acts of the regions of the Federation, their structure and content, more specific control methods, a circle of targeted persons. As at the federal level, the main part of the draft laws is submitted to the legal drafting advisory service of the legislative body of the region of the Federation for the consideration. During their consideration by the legislative body the draft laws are passed legal and linguistic expertise. The procedure of the expertise conducted by the legal drafting advisory service, as well as the demands for it, are established by the Regulations of legislative body of the region of the Federation. In some regions of the Federation there are special expert and legal councils under the legislative bodies, that conduct an independent legal expertise of the draft laws submitted for consideration at the meeting of the legislative body (the Chelyabinsk Region)1. The significant role in the organization and conduction of the expertise of the draft laws belongs to the established in the regions of the Federation institutions of the regional legislation and centers of lawmaking acting under the state bodies. For example, one of the purpose of the Expert Council of the Ural Institute of the regional legislation is the expertise of the tentative lists of lawmaking activities of the regional Duma of Legislative Assembly of the Sverdlovsk Region. In the process of the expertise, a list is evaluated in terms of the subject of regulation of draft laws included to it, their conceptual component, compliance of the drafts in meaningful terms with the subject of reference of the region of the Federation. The productive mechanisms of public expertise in are increasingly included the legislative activity of the regions of the Russian Federation. In a number of the regions of the Federation the public chambers are established, which task is to conduct a public expertise of the draft laws. The practice of the establishment by the regions of the Federation of the public councils acting under at the legislative body (the Stavropol Territo1



Ref.: A.S. Pigolkin, T.N. Rahmanina, A.I. Abramova. Draft laws should be tested for maturity // Russian Law Journal. 1997. No. 10. 22 p. 251

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ry, the Tomsk Region) comes into widespread acceptance. Such councils, interacting with the public chambers may become a platform for the organization of public expertise of socially significant drafts of the legislative decisions involving a wide range of public and business communities. The great importance in the formation process of a regional legal base has a legal expertise of legal acts of the regions of the Federation, carried out by the Ministry of Justice of the Russian Federation1. This expertise helps to identify not only contradictions of the legislation of the region of the Federation to the federal legislation, but also to identify tendencies and positive experience of legislative regulation in the region of the Russian Federation, to develop on this basis analytic materials concerning the status of the current legislation. The increase of the capacity of the expert-analytical activity in the legislative process could be facilitated by the use of foreign experience of organization of this activity, taking into account sustained and successful functioning of this institute in some countries. So, the expert and analytical activities in the work of the Congress are of great importance — the supreme legislative body of the United States. Almost any decision on a particular legislative proposal is subjected to careful study involving a developed system of information and analytical bodies, involving if necessary the leading experts. In France, without the conclusion of the State Council, which included nearly 300 prominent lawyers any draft cannot be adopted. A similar body intended to support the legal elaboration of legislative acts, functions in the Netherlands2. The study of this practice will provide fuller considering the international experience, the achievements of world science, and new tendencies in the development of legislation.

1



2



252

Ref.: Resolution of the Government of the Russian Federation of June 03, 1995 «On additional functions of the Ministry of Justice of the Russian Federation» / Collection of laws of the Russian Federation. 1995. No. 24. Art. 2281; 2000. No. 49. Art. 4826. Ref.: A.I. Abramova, T.N. Rahmanina. Expertise of draft laws and regulations. In the book: Rule-making legal technique. 235 p.

Chapter VI. Legal Technologies in Parliamentary Activities

§ 1. The quality of the law and the legislative technique

The improvement of the legislation provides the dynamics of the Russian society and its statehood. A characteristic feature of the modern legal regulation is the extension of its scope and detailing of the legal mediation of the objects and factual relations. Meanwhile, the system of legislative acts is effective only if they are of high quality. This allows emphasizing the important role of the parliaments in ensuring the quality of the adopted laws and the effectiveness of their operation. The quality of legislation primarily dependents on the ability to prepare the text of the draft law, to see and perceive the aims of the document, the legal consequences of its operation. Therefore, it is necessary to use a variety of modern legal technologies. By modern legal technologies shall be understood to mean the system of science-based techniques, methods, and other legal instruments, as well as procedures for their use intended to create the effective legal solutions1. The most important are the legal means that ensure the effectiveness of the future law, such as legal technique, monitoring, predicting and expertise. The quality of a law depends on several factors. One of such factors is technicality of a draft law, its compliance with the rules of legislative technique. All these are the necessary conditions of the future effectiveness of a law. In most cases in the Russian jurisprudence, the quality of a law is understood as its compliance with social needs and the ability to provide the regulation of actual relations in conformity with the desired purposes set at its preparation. At the same time the following aspects of the quality of a law are distinguished: social, political and legal2. Social characteristics of the quality of a law include firstly, the degree of adequacy of reflection in a law of processes taking place in society; secondly, the accuracy of the projection of these processes into the future; thirdly, the prediction of possible ways to develop spheres of society and the choice 1



2



Ref.: The effectiveness of legislation and modern legal technologies (materials of the meeting of the International School-Workshop of young legal scholars, Moscow, May 29–31, 2008) / Editor-in-Chief T.Y. Khabrieva. Moscow, 2009. 4 p. Ref.: S.V. Polenina. The quality of the law and the effectiveness of legislation. Moscow, 1993; E.V.Syrykh. General criteria for the quality of law: Thesis ... LL.D. Moscow, 2001. 253

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of the best ways of legal regulation inextricably related with it, their modifications in the direction desired for the legislator. The political characteristic of the quality of a law represents the degree of adequacy of variations of the regulation of the public relations selected by the legislator to the requirements of legal policy and objectives of social development on a particular perspective1. Legal quality of a law refers to its compliance with the technical standards and regulations, which shall be included in any law at the stage of its creation. This problem is also one of the most important in the preparation of a draft law. Thus, the quality of the legislative act is its compliance with substantive, formal and legal criteria, which is achieved by the means of the legal technique. Largely, we are talking about giving to the law of the essential characteristics of the so-called forms of law (legality, regulatory, consistency, absence of gaps, etc.). The absence of one of them affects the quality of a law and, accordingly, the effectiveness of its execution. Thus, the high quality of characteristics of the legislative acts is provided by compliance with the rules of legal (legislative) techniques, the level of preparedness and the necessary diversity. At this the compliance with requirements of legislative technique, which are divided into substantial and technical-legal, has an important bearing on the quality of a law. The substantial requirements of legislative technique, so to speak, are responsible for the essence, the content of the future normative legal act, its subject matter, which undoubtedly determines the effectiveness of a law. It is referred to the purpose of a draft law; subject and limits of its regulation; legal means of legal mediation of social relations covered by the regulation of the future law and the structure of the document. These characteristics are essential conditions for the effectiveness of a law and other normative legal act. With the help of language, logical and other techniques the text document is created, its documentary style and the most important — the so-called normativity are ensured. The first substantive rule is the definition of the objective and the subject of regulation. It can be reduced to a requirement to clearly define the scope of relations subject to the legal regulation, and to set limits (verges) of the legal regulation of factual relations. Then, the objectives of a draft law shall be formulated and the simulation of expected result shall be preceded. The subject of the regulation of the future draft law as a complex of relations within the jurisdiction of this act 1



254

Ref.: E.V. Syryh. General criteria for the quality of law: Thesis ... Ph.D. Moscow, 2001. 221 p.

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and, in this regard, the determination of the tentative list of objects and interested entities, properly speaking, shall be considered at the stage of idea, normative initiative and the concept of the document. While working on the draft law, the subject to regulation shall be constantly updated. When amplifying the subject of regulation relations, the facts and objects, which are not covered by the effect of the future law (or its components), as well as articles (parts, paragraphs), clauses acting only under certain conditions, and others can be specified. An important rule is the selection of means of legal regulation. Methods and techniques of legal regulation are the legal mechanisms, ensuring the legal regulation of social relations. With their help, the necessary legal effect is achieved: granting a subjective right, laying a legal obligation, defining of legal responsibility for any wrongful acts, etc. The legal means are the principles, objectives, rights and duties, legal facts, competence, etc., shall be used exactly as prescribed, otherwise a draft law will not meet the standards of legal technique, and, accordingly, the purpose of the legal regulation will not be achieved. The purpose and content of a draft law determine the structure and complex of the included legal means and mechanisms. The definiteness of the subject, clarity and precision of a draft law purpose can save the time required for the preparation of its text, determine with greater precision the instruments of legal technique necessary for the work. However, a draft law shall be worded with regard to the requirements of logic and language. In connection with this rule the structuring of the text of a draft legislative act is necessary1. After the clarification of the regulation object and purpose of a legal act, the formulation of key concepts and categories, the legislator proceeds to the distribution of regulation material or the construction of document. Clearly, if to speak about it as a logical operation, it can take place simultaneously with clarification of the subject of regulation, formulation of objectives, individual definitions and others. Therefore, the separation of this stage as a self consistent element in the technology of the draft law formation is rather conditional. However, the neglect of mental actions aimed at justification of the structure of the future law, its elements, insufficient attention to structuring undoubtedly affect the quality of a draft legal act. If a draft is being developed by a team of specialists, it is appropriate to design the structure of the document by all developers.

1



The structure (from the Latin structure — scheme, communication) — strong, relatively stable relationship (ratio) and the interaction elements, parts of the object, phenomenon and process. Ref.: N.I. Kondakov. Logical dictionary-reference book. Moscow, 1976. 572 p. 255

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The parliamentarian should be aware of what general (constant) elements of the structure of regulatory document are, although they do not always take place, for example, not typical in this respect the draft laws on amendments to the acts. These drafts have a peculiar structure and independent logic that is predetermined by their functions in the legal regulation. However, the majority of draft regulations are subject to the general rules of the normative legal structuring. In this regard, the parliamentarian shall have the necessary general information on the structural components of a draft law. Firstly, every law has an introductive (general) part (preamble, conceptual framework, general rules, etc.). Usually it is the first chapter (section), or the initial articles of a law, including the preamble. Secondly, it is the normative (auxiliary) part of a draft act as such, which includes the main material and key regulations and contains the solution of the assigned tasks. Textually, there may be several chapters (sections). Thirdly, there should be closer element, «finish», i.e. final provisions, or the transitional provisions, as they are sometimes called. They set the terms, conditions for entry of a law into force, and other technical and legal aspects1. From the standpoint of content, the laws are different from each other, and it has an impact on their structural components. The general (complex) draft laws traditionally cover a wide range of issues that need the legal regulation. Because of this, as a rule, they have the following structure: preamble, general section (chapter), substantial part (statutory section; regulation section (chapters), section on jurisdiction; section on responsibility and others.); section on the final (transitional) provisions. The statutory laws (defining the rights and duties of a party to a legal relationship, its competence, and others provisions) have less volume general (introductory) part. However, the content (main part), as a rule, is volume — chapters (section) on the rights, obligations, guarantees and responsibility. The statutory draft laws may contain volume transitional provisions. The so-called current laws traditionally have an extensive preamble and section (chapter), devoted to general provisions. In the main part in most cases the measures, actions of various parties aimed to achieve certain goals are set forth. Here, the legislator actively uses such legal category as «rights», «liabilities», «powers», «tasks», «functions», «recommendations» and others. 1



256

For details, ref.: I.A. Vlasenko. Legislative technology. Theory. Experience. Rules. Irkutsk, 2001. 46 p.

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The procedural (regulation) laws stand apart. In the legislative system, they constitute a separate group, because their goal is to define the principles, functions and procedures of functioning of one or another body. They often have inexplicit preamble and general part. The main part of the laws of this type is volume, includes several chapters (sections). Final provisions may be absent or limited to an article on the entry of the document into force. Thus, the features of the future structure of a draft law can be determined only in the case of a clear understanding of the goal, scope and legal means of regulation. As can be seen, the so-called substantive rules are the most important tool of preparing the draft laws and other normative legal acts. Their effective use is a prerequisite for high-quality legal regulation. In the legislative activity, one can clearly defines the topic and subject of the normative legal act regulation, legal means of realization of the regulatory idea and others. However, the technical and legal defects of a draft law may not allow executing it in a proper manner. In this regard, the technical requirements are, undoubtedly, important in the legislative activity. Primarily, it may be mentioned: the parliamentarian shall be aware that any text and its quality depend on the nature of the information, technique of its transmission and organizational formedness. There is, of course, a reverse relationship, although less significant. Text, as a kind of social phenomenon with its regularities of structure is also capable to affect the quality of regulatory information, level of its pragmatism and ultimately the effectiveness of legal regulation. The legal regulation and its institutions do not exist outside the medium, the most important of which is the grammatical text. Among the legal documents, the normative legal documents are defined1. In this case the authors of the texts of the draft laws and other normative legal documents shall pay attention to the practical importance of theoretical knowledge about the text and legal documents. The fact that other medium of legal information (scientific, educational literature, and others) are not an own expression of the law, but only transmit information about it and therefore have other textual forms of expression. However, due to the pragmatic specificity the other requirements on the drawing are applied to them. It should be assumed that the normative legal text is a kind of legal text. However, it is only a general characteristic of the texts of normative legal acts, intended to fix precisely the legal rules, because only in this case they 1



For more information about legal documents, ref.: A.F. Cherdantsev. Logical and linguistic phenomena in law. Moscow, 2012. 26–37 p.; N.A. Vlasenko, S.P. Starodubtsev. Fundamentals of the theory of legal documents. Moscow, 2006; K.V. Kargin. Legal documents. Moscow, 2008. 257

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are able to act as an effective legal regulator of the actual relations. The compliance with the following legal regulations confers them the characteristics of accuracy and formal definition. First of them is the absence of expressiveness in the text of a draft law. The peculiarity of laws and other normative legal acts, their noteworthy and value are in the neutrality, human fairness, absence of any originality, strong individuality of material exposition. The style of exposition shall be smooth and quiet, shall not cause additional unnecessary associations and unwanted emotions that can distract from the content of document. The normative legal documents are extrinsic of artistic phrases, turgidities, slogans and, as a consequence, exclamation marks, questions, etc. The exception, perhaps, is provided by the specific structural components of the normative legal acts, for example, preambles to the laws, declarations, etc. The neutrality of presentation of legal norms is an important requirement for the effectiveness of legal regulation. Analysis of the legislation of the Russian Federation and its regions shows that the most part of derogations from this rule can be found in the chapters devoted to the general provisions of the laws. Preamble, introductory chapters, as well as the entire text of the document shall have legal and official character1. The coherence of the text and consistency of the content of a draft law is the second rule. The components of any text shall be interrelated and coordinated. Otherwise, it will be not a text, but a set of words. However, the strictness of exposition, the degree of interrelationship and rigid sequence of textual material are different. The equation of the legislative text and the interrelatedness of its elements are a distinctive feature of the style of normative legal acts. In the rule-making practice, this means that in preparation of the draft laws and other normative legal documents, the lexical and semantic absurdity, jumping from one thought to another are not allowed. Departure from this requirement is a significant obstacle in understanding the meaning of the text. The third rule is the accuracy and clarity of the legislative document. It is a feature of the text resulting from the primary purpose of law — to regulate the psychophysical behavior of a man. The legislative or other normative text in its inner nature shall be accurate and clear. There shall not appear any additional associations and dif1



258

For details, ref.: A.S. Pigolkin. Theoretical problems of legislative activity in the USSR: Abstract of thesis. ... LL.D. Moscow, 1972. 29 p.; Legal technique / A.I. Abramova, M.A. Zanina, O.V. Ivanyuk etc.; Editor-in-Chief T.Y. Khabrieva, N.A. Vlasenko. Moscow, 2009. 72–73 p.

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ferent interpretations in the process of its reading. «The accuracy assumes the factual reliability, precise use of the terms, excluding different interpretations of the documents»1. If the coherence and consistency of the text assume its connectedness (enchainment), then, the precision and clarity expand the above characteristic and are directed to the inner content of the proposal, correct choice of words and terms, their compatibility. «It is widely known, that the more harmonizing in terminological aspect is the text, the greater extent its impact will be effective»2. The legislator shall always keep in mind that the legal elegance and the sequence of the regulation of actual relations depend on the quality of text, accuracy and clarity of its style. One more detail: accuracy involves a high frequency (repeatability) of certain linguistic forms in certain parts of the document’s text that is drawn attention in the special literature3. The achievement of this requirement may affect the aesthetic perception of the regulatory text, but a practical criterion here takes precedence over general literature standards. Brevity and compactness of a draft law is the fourth rule. The certainty of the text, its effective understanding are the important conditions for the proper implementation of the legal rules. Meanwhile, the next circumstance shall be taken into account: the pursuit of accuracy often leads to volume formulations, congestion of the wordings which often have negative impact on the clarity of the text. There is a dilemma: on the one hand, the desire for simplicity could negatively affect the accuracy of the legal material4. On the other hand, the brevity of the regulatory text could have adverse effects on its effectiveness. In this regard, it is necessary to bear in mind that the accuracy and simplicity of the style of the regulatory documents shall harmoniously supplement each other, without the violation of one of the main communicative functions of any text — bringing the sense of message to the recipient. When using the genitive, dative and prepositional case, it is important not to overload the legislative text by volume phrases, it is reasonable to alternate the complex sentences with simple, but not to the detriment of meaning. There is no doubt, that the more laconic and compact normative material is, the better its content is perceived by the participants of legal rela1 2



3



4



H.A Dyuzhenko. Documentary linguistics. Moscow, 1975. 8 p. A.V. Malko. Duality of legal information and the language of the legislation // Jurisprudence. 1993. No. 1. 86 p. Ref.: L.V. Rahmanin. The stylistics of business language and editing office documents. Moscow, 1988. 13 p. Ref.: Language of law / S.A. Bogolyubov, I.F. Kazmin, M.D. Lokshina and others, Editor-in-Chief A.S. Pigolkin. Moscow, 1990. 25 p. 259

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tions. In the lawmaking practice, this requirement involves the elimination of the text from undue repetitions, the effective structuring of reference norms, the use of special and, of course, legal terminology, and others. The better the text is worded, the easier it will be perceived and the less effort will be needed for its study. Any regulatory text in terms of its linguistic expression shall be created on the basis of the economy and thus be interpreted in such a way that none of its word was not superfluous or meaningless. The imperativeness of the draft law requirements is the fifth rule. The social pragmatism of the text of a law involves its imperativeness (in the regulation of the addressee’s actions), provided by the following methods of prescription. Firstly, it is obligatory-prescriptive method. It is the nature, essence of the legislative and other normative legal document. In other words, by using of such language form in public practice, something is permitted, prohibited; solutions, behavior models are proposed. The realization of such methods of legal regulation in the text creates a special type of writing exposition referred as binding. The second, no less important, prescription method is summative-prescriptive. Articles (chapters, section) of the normative legal act, as a rule, have an introductory character; they define the purpose of the document, the subject and scope of the legal regulation. The style of exposition of these rules is peculiar, on the one hand, is summative, on the other — prescriptive, which involves the use of the verb in the infinitive form; often in the regulatory text there can be several dozens of interconnected infinitives. This method of exposition implies the presence of different tense forms of the verb. Thus, the verb in the present tense has a meaning that can be called a real prescription. The verbs in the future tense acquire in the context the different modal shades (obligation, prescription, possibility, close to necessity). The verbs in the past tense are used in meaning of the excruciating assertion. In addition, in the use of short adjectives of modal nature (with a meaning of obligation), «shall», «has to», and others, the prescriptive character of regulatory text is shown. The compositional and linguistic standardizing of a draft law — the sixth most important requirement of legislative technique. The desire for stringency, conciseness and accuracy of regulatory style at the same time assumes a special text compositionality. The normative graphics is the division of the text into sections (parts), chapters, articles (paragraphs), etc., as well as the use of annexes, notes, etc. — has the independent origin in the lawmaking acivity. The composite unification of normative legal acts as the requirement of the stylistic tinge of a document is markedly different. 260

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For example, the architectonics of the text of a federal constitutional law is different from the graphics of an ordinary law. In our view, the drafters of the laws of the regions of the Federation, departmental regulations and local self-government regulations take it into account least of all. The traditions of the regulatory graphics quality and legislative graphic quality (variety of regulatory) are different and depend on the typology and kinds of the draft laws. Linguistic standards involve the unification of linguistic forms — the use of general documentary chunks of language, own legal phrases and other officialeses, bureaucratic language and clichés adopted in normative practice. This particular gives the originality to normative and legal style, distinguishes it from official-business style of exposition. However, the considered above recommendations on the formulation of normative legal text cannot be absolutized. «Sometimes the same procedure of norm clarity for its flexibility and ambiguity shall be ignored, so potentially this provision will admit different kinds of interpretation of a certain human behavior. However, this behavior shall take more or less clear shape in a law»1. Of course, clarity and formalization of the draft law text shall not run to the absurd, otherwise it will lead to voluntarism and arbitrariness, the law (formally existing) will turn into its opposite — chaos. In short, we are talking about the language rules of the legal technique, which cannot be dogmas, pretend to be the absolute rule and refrain from derogation. In this case, the language norm is understood as a technical and legal category, involves the assessment of linguistic phenomena in the process of impact on the legal text to the addressee. The aspiration of the drafters of laws and other normative legal documents to the realization of the standards of legislative technique in the preparation of texts is aimed at achieving the formal definition of normative legal acts as a necessary condition of the legal regulation2. Summing up, we note that the realization of standards of legal technique provides the future law with normativity, ability to establish generally binding rules of conduct for all citizens, state bodies, public associations and other participants of legal relations, regulate the fundamental, most important public relations, within the jurisdiction of the legislative bodies; provided with the greatest legal force, ensuring its supremacy among other regulations. 1 2





H.T. Chernobel. The formalization of the rules of law // Soviet state and law. 1979. No. 4. 72 p. For more about the rules of legislative technique, ref.: Legal technique. Moscow, 2009. P. 46–99; The normative legal technique / N.A. Vlasenko, A.I. Abramova, Yu.H. Arzamasov and others: Editor-in-Chief N.A. Vlasenko. Moscow, 2011. 41–153 p.; and others. 261

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Each of these features is simultaneously a characteristic of a law, without which a source of law cannot exist. Expectedly the fact that all features of a law as the form of law, shall be present, because the absence of even one of them can be considered as objectively illegal result of activities of lawmaking body and thus cast doubt on the legitimacy of the adopted law. The requirement that a law shall resolve fundamental, the most important public relations is mandatory. An attempt to adopt the rule in the form of law on private, minor issues of legal regulation is a direct violation of the constitutional principle of separation of powers and means the invasion of the legislative power in the scope of executive power. In addition, the quality of legislation is closely connected to the culture of lawmaking, representing a system of ideas and values of the participants of the legislative activity affecting the process of forming of the legislative system1. The culture of lawmaking activity accumulates comprehensive knowledge, history and prospects of development, as well as specific knowledge about the system of legal regulation, legislative technique, conditions of its use in the establishment and improvement of normative legal acts system. The legislator shall have comprehensive and in-depth knowledge; constantly replenish them by using its own potential, and the cultural level of society. The culture is an important guarantee of the effectiveness of these legislative activities and largely determines the capabilities of regulatory legislation. § 2. The legal monitoring

One of the modern legal technologies is the legal monitoring. The legal monitoring is a comprehensive institute of information and evaluative nature that provides a systematic, consistent monitoring for analysis of legislation in accordance with the strategic objectives of the state; determination of the effectiveness of lawmaking activity, the quality of normative legal acts, effectiveness of their implementation (enforcement procedure); the correction of mechanism of legal regulation2. It is important to emphasize that the legal monitoring, as a structural and information and analytical institute of analysis and evaluation of a normative legal act shall be used at all stages of its creation and application. 1 2



262

Ref.: D.V. Chuhvichev. Legislative technique. Moscow, 2008. 231 p. Ref.: Legal Monitoring: scientific and practical guide / A.N. Andrianov, V.B. Boldyrev, S.V. Boshko and others, Editor-in-Chief Yu.A. Tikhomirov, D.B. Horokhov. Moscow, 2009. 406 p.

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As noted by the Russian scientists, the effectiveness of law is one of the key means providing an innovative economy and modernization. We are talking about the rejection of traditional ideas concerning the legal acts themselves and the formation of such a mechanism of legal regulation, which would combine the assessments of regulatory impact during the preparation of legal acts, the analysis of correlation between the different instruments of legal impact and the various elements of the economic system, the action of the institute of legal monitoring, development of the predictive assessments of the changing legal cycles1. It should be noted that the determination of the effectiveness of the operation of legal norms is not entirely new to the Russian legal science; many legal scholars actively carried out such studies in the second half of the last century2. As a part of these studies the schemes and formulas to measure the effectiveness of the impact of legal regulations on public relations were proposed. However, a universal method of evaluating the effectiveness of the legal norms has not been created3. Among the scientists the unity of views on what should be understood under the effective legal norms has not developed4. In formulating the criteria for the effectiveness of the legal norms, the legal parameters should be taken into account. The indicators of the conducted monitoring should be used. As a part of the scientific researches concerning the legal monitoring, the methodical recommendations to assess the effectiveness of the law containing the positive and negative indicators of the enforcement of law5 were developed. 1



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Ref. T.Y. Khabrieva: Economic and legal analysis: methodological approach // Russian Law Journal . 2010. No. 12. Ref., for example: I.S. Samoschenko, V.I. Nikitinsky. On the notion of effectiveness of the legal norms // Scientific notes of All-Union Scientific Research Institute of Soviet Legislation. 1969. Vol. 18. 3–19 p.; M.D. Shargorodskiy. The system of punishments and their efficiency // Soviet state and law. 1968. No. 11. 54 p. V.V. Lapaeva. Specifically sociological studies in law. Moscow, 1987. 51 p.; A.S. Pashkov, L.S. Yavich. The effectiveness of a legal norm (for methodology and methods of sociological research) // Soviet state and law. 1970. No. 3. 40–47 p.; A.S. Pashkov, D.M. Chechot. The effectiveness of regulation and methods of detection // The Soviet state and law. 1965. No. 9. 3 p. For details, ref.: M.E. Glazkova, S.B. Nanba. The assessment of the effectiveness of the legislation: modern approaches // Russian Law Journal. 2011. No. 9. 73–80 p. Ref.: I.D. Badamshin, A.S. Cherepashkin. On the concept and conditions of the efficiency of criminal law//the problem analysis and public management design. 2012. No. 3. 101–105 p. Ref..: Yu.A. Tikhomirov, A.V. Pavlushkin, D.B. Horokhov and others. On the organization and conduction of legal monitoring // Russian Law Journal. 2010. No. 6. 129–135 p. 263

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Currently, frequent amendments of laws have become a disaster for all recipients of the relevant legal norms. Such legal policy leads to a significant reduction of the scientific validity of issued normative legal acts and, as a consequence, to a reduction of the quality of legal regulation of various spheres of public life. This is due to the fact that, it is impossible to estimate the effectiveness of legal norm in the most accurate and complete way, as in circumstances where legislative changes happens it is impossible to collect the sufficient information for such analytical material. However, improving of the government efficiency is inseparably connected with increasing of stability of legal regulation, and first of all, the stability of the legislation and, therefore, the scientific measures are needed, a kind of buffers from the endless attempts to inappropriate change of legislation. Already in science the specific proposals for the preliminary monitoring of changes to the legislation are formulated, because from a legal point of view it is not so difficult to introduce the mandatory application of legal monitoring as a factor of the stabilization of modern legislation. In particular, it can be set a time limit during which the laws cannot be amended (a kind of moratorium on the amendments). The main thing is to create the necessary condition-principle: the correction of a law shall be made only when absolutely necessary and only on the basis of the results of legal monitoring. This will enhance the objectivity and relevance of amendments of the legislation, the quality and effectiveness of legal norms. Speaking on a moratorium on the amendments of the laws, the possible exceptions to the general rule should be kept in mind. They include unexpected or planned changes of social relations, such as the adoption of emergency measures to overcome the crisis in the financial and economic or political sphere or measures required in overriding public interest: reducing of the tax burden, expansion of the social guarantees of citizens, the elimination of administrative barriers for business, etc. It is important that the list of such exceptions will be contained in a law, and optimally — as an exhaustive list1. The negative impact of frequent changes of legislation on the stability of social relations and the formation of legal sense of the Russian citizens, as professionally involved in the legal sphere, so not involved in it, as such, can be considered in a sociological perspective of the law. During the course of legal monitoring, these changes should be evaluated from the perspective of compliance to clear (evidence-based and consistent) strategy of the state policy in the legislative sphere. 1



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Ref.: Concept of development of the Russian legislation / Editor-in-Chief T.Y. Khabrieva, Yu.A. Tikhomirov. Moscow, 2010. 103 p.

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The sociological studies are an important part of the legal monitoring. The monitoring bodies should ensure the conduction of such researches on single methodological rules based on a clear plan of actions. In carrying out the legal monitoring it is advisable to involve organizations (experts) engaged in sociological studies (public opinion survey, questioning, interviewing, etc.)1. As the subjects of legal monitoring may act public authorities, local governments, research institutions of legal and other specialization, civil society institutions, business entities, independent expert organizations (experts). The legal monitoring is ineffective without a comprehensive analysis of all aspects of public relations with the help of independent organizations. The conduction of the legal monitoring with the assistance of independent expert organizations will allow take into account the diversity of the current law-enforcement practices. The independent expert organizations include academic institutions, public associations, business associations (The Russian Union of Industrialists and Entrepreneurs, “Delovaya Rossia”, “Opora Rossii”), trade unions, organizations carrying out sociological studies and other. The conduction of the legal monitoring implies full and accurate information about the current state of legislation, statistical and other data. This information shall be maintained in the reference level, be organized according to the tasks. The information used for the legal monitoring, can be formal and informal. The legal information involves the legislation, official publications (in printed or electronic form), statistics, public reports of the authorities, data of judicial practices, archival documents. The informal information include publications in the media, informal publications (books, brochures, reports, studies, etc.), and materials of Internet sites. The main flows of information collected, analyzed and evaluated in the process of the legal monitoring are: legal information on the extent of the regulatedness of social relations within the object of the monitoring research; branch and cross-branch information collected by the federal authorities, the authorities of the regions of the Russian Federation and local self-government within its jurisdiction; information on the operation of normative legal acts, collected and compiled by the courts, prosecutors, other law enforcement bodies within its jurisdiction; statistical information obtained on the basis of statistical indicators developed by the statistical 1



For details, ref.: Yu.A. Tikhomirov, A.V. Pavlushkin, D.B. Horokhov and others. On the organization and conduction of the legal monitoring // Russian Law Journal. 2010. No. 6. 265

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agencies, and supplemented by the industry statistics of the authorities; sociological information collected in the process of sociological researches. The collection of information about the object of research is one of the main stages of legal monitoring. The collection of information is made on the basis of data available in the data in search information databases, records of normative acts, enforcement acts, acts of courts, official records of state authorities, as well as through direct sociological researches1. The results of legal monitoring, as a rule, are published in the form of reports, analytical data, and considered by lawmaking bodies for the adoption of necessary organizational, legal and other measures. The subjects of legal monitoring publish materials on the results of the legal monitoring in the media, and make them available on the official websites in the Internet. It should be particularly emphasized that the legal monitoring is incorporated into the system of anti-corruption enforcement, including anti-corruption expertise. In the process of the implementation of the Decree of the President of the Russian Federation of April 13, 2010, No. 460 «On the National Anti-Corruption Strategy and the National Anti-Corruption Plan for 2010–2011» an active work on the establishment of a unified system for monitoring of law enforcement was carried out. At this, in the National Anti-Corruption Plan for 2012–2013 also the considerable attention is paid to the need for monitoring on the various aspects of combating corruption, as well as for monitoring of enforcement itself. On May 20, 2011 the Decree of the President of the Russian Federation No. 657 «On the Monitoring of Law Enforcement in the Russian Federation» was published. The Regulation on the monitoring of law-enforcement in the Russian Federation was approved by this Decree2. Under the monitoring of law enforcement is understood a comprehensive and planned activities carried out by the federal executive bodies and state bodies of the subjects of the Russian Federation within the scope of their powers on the collection, compilation, analysis and evaluation of information for adoption (publication), amendment or annulment of the normative legal acts. In turn, the Government of the Russian Federation approved the methodology for monitoring3 and monitoring plans. The adoption and consistent implementation of the said Decree of the President of the Russian Federation and the Decree of the Government of 1



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For details, ref.: Yu.A. Tikhomirov, A.V. Pavlushkin, D.B. Horokhov and others. On the organization and conduction of legal monitoring // Russian Law Journal. 2010. No. 6. Collection of laws of the Russian Federation. 2011. No. 21. Art. 2930. Ref.: Decree of the Government of the Russian Federation of August 19, 2011 No. 694.

Chapter VI. Legal Technologies in Parliamentary Activities

the Russian Federation animates the further scientific and practical development in the sphere of monitoring. Now an active work to establish a unified system for monitoring of law enforcement is necessary. However, it should be stated that the federal acts are more focused on the monitoring of the federal legislation by the executive authorities. The systematic and comprehensive approach to the creation of a monitoring system is required the active participation of the Federal Assembly and the legislative bodies of the regions of the Russian Federation. The Parliament as an element of the mechanism of the state is able to exercise legal monitoring prior to the legal regulation of social relations in the process of lawmaking and after their adoption1. It should be noted that for a long time the preparation by the Council of Federation of an annual report on the state of the legislation in the Russian Federation was the main form of legal monitoring at the federal level. The main role in the preparation of this report played committees, commissions, Center for Monitoring of Legislation and Law Enforcement Practice at the Council of Federation, which involve scientists in the performance of this work. The conclusions and recommendations contained in this report should be used by the committees, commissions and members of the Council of Federation in the process of the execution of their constitutional powers. Currently, the practice of annual reporting should be moved to a new level, to the effect that the solution of legal problems would accompanied by the specific recommendations providing the executors and time limits. The activity in the field of legal monitoring of legislative bodies of the regions of the Russian Federation is of great importance. Currently, in the regions of the Russian Federation the active introduction of legal monitoring in the activities of public authorities and local governments is being executed. Often, the provisions on monitoring are set forth in the laws of the regions of the Russian Federation on normative legal acts2. The special laws that establish the regulatory framework of its conduction have already been adopted by the number of the regions of the Federation3. At the same time in some regions (e.g., in the Jewish Autonomous 1 2





3

Ref.: Legal Monitoring: scientific and practical guide / A.N. Andrianov, V.B. Boldyrev, S.V. Boshko and others, Editor-in-Chief Yu.A. Tikhomirov, D.B. Horokhov. 107 p. Such laws have been adopted in more than half of the regions of the Russian Federation. This is particularly the Law of the Republic of Altai of October 4, 2012 No. 49-RZ «On the Monitoring of Enforcement of Regulatory Legal Acts of the Republic of Altai», the Jewish Autonomous Region Act of June 27, 2012 No. 80-OZ «On the Monitoring of Normative Legal Acts of Jewish Autonomous Region», the Law of the Republic of Dagestan of June 14, 2012 No. 37 «On the monitoring of regulatory legal acts of the Republic of Dagestan», the Law of the Republic of Khakassia of June 9, 2012 No. 49-ZRH 267

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Region) during two years two versions of the laws on the monitoring were adopted. It should also be borne in mind that in many regions of the Russian Federation the activities on the legal monitoring is carried out by the legislative bodies of these regions in the form of reports devoted to the state of legislation in the respective region. Also internal acts of regional parliaments on the legal monitoring (for example, in the Republic of Kabardino-Balkaria, the Nizhny Novgorod Region)1 are often adopted. The legislative bodies often conduct the legal monitoring within the execution of the control of both the executive power (queries, reports, etc.), and the execution of laws. The analysis of the regulatory legal acts of the Russian Federation in the sphere of organization of legal monitoring shows that this activity is fragmented, carried out on the basis of heterogeneous indicators, which makes it difficult to generalize the results of the monitoring, identification of similar problems related to the application of the relevant acts, the generation of proposals on improvement of legal regulation, including the national level2. The practice of the legal monitoring carried out by the legislative bodies of the Russian Federation shows that monitoring can be conducted by: –– the legislative body; –– the deputies and deputy associations (factions, groups);

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«The Monitoring of the Enforcement of Legal Acts in the Republic of Khakassia», the Law of the Republic of Bashkortostan of May 29, 2012 No. 533-з «On the Monitoring of the Laws of the Republic of Bashkortostan», the Law of the Moscow Region of May 4, 2012 No. 46/2012-OZ «On the Legal Monitoring in the Moscow Region», the Law of Krasnodar Territiry of November 07, 2011 No. 2354-КZ «On the Monitoring of the Enforcement of Regulatory Legal Acts of the Krasnodar Territiry», the Law of the Voronezh Region of January 24, 2011 No. 16-OZ «On the Monitoring of Regulatory Legal Acts of the Voronezh Region», the Regional Law of the Leningrad region of December 21, 2010 No. 81-OZ «On the Monitoring of the Enforcement of Regulatory Legal Acts of the Leningrad Region», the Law of the Republic of Tatarstan of July 3, 2010 No. 49-ZRT «On the Monitoring of the Laws of the Republic of Tatarstan», the Law of the Yamal-Nenets Autonomous Region of June 8, 2009 No. 37 -ZАО «On the Monitoring of Legal Space in the Yamalo-Nenets Autonomous Region», the Act of the Lipetsk Region of December 5, 2008 No. 213-OZ, «On the Monitoring of Regulatory Legal Acts of the Lipetsk Region», etc. Ref.: The Regulations on the monitoring of legal acts of the Parliament of the Kabardino-Balkaria Republic (approved by the Decree of the Chairman of the Parliament of the Kabardino-Balkaria Republic of July 3, 2009 No. 54-P-Government), Regulations of the Legislative Assembly of the Nizhny Novgorod Region of October 23, 2008 No. 1252- IV «On the Adoption of Provisions for Monitoring of the Laws of the Nizhny Novgorod Region». Ref.: The mechanism of legal monitoring: scientific and practical guide / D.B. Horokhov, A.A. Kashirkin, A.N. Morozov and others; Editor-in-Chief A.V. Pavlushkin. Moscow, 2012. 28 p.

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–– the permanent and temporary bodies of legislative (representative) body: commissions and committees; –– the structural departments of the legislative machinery, including the office of legal service; –– the special structures for legal monitoring established by the legislative bodies — centers of monitoring operating as a rule on a voluntary basis. The centers may include members of the public, scientific and educational institutions, businesses structures and expert community. Such centers on monitoring have been established under the legislative bodies of some regions of the Russian Federation. For example, in 2012, the Center for monitoring of legislation and law enforcement was established under the Regional Duma of Kurgan. The Center includes deputies and experts of the Regional Duma legislative machinery, representatives of the executive authorities and the public. In order to provide the opportunity for residents of the region to take part in the monitoring, at the site of Duma a website section is created which helps any voter to express its opinions on how the relevant law is implemented, and to send a letter to this Centre1. The legislative bodies can also establish bodies that coordinate the activities on the legal monitoring with the executive authorities and municipalities — Council for Monitoring. The conduction of the legal monitoring and compilation of its results, preparation of the final document can be imposed on the legal departments of the legislative machinery of the respective legislative body. Such departments are already implementing a number of functions relating to the legal monitoring (analyze and generalize the practice of legislation, judicial practice, prepare the legislative reviews, analytical and information material, etc.)2. The activities for the implementation by the legislative bodies of the region of the Russian Federation of the legal monitoring in a certain way affects the federal legislation because the results are published in the form 1

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The first normative legal acts, the implementation of which is to be analyzed, were the laws of Kurgan Region «On the Composition and Procedure of the Commission on the Drafting Preparation of Land Use and Development» and «On the Free Provision of Land Plots for Individual Housing Construction in Kurgan Region». According to the results of the monitoring will be developed the proposals which will be send to the Chairman of the Duma and posted on the official website of the regional parliament. For details, ref.: The Guidelines on the organization and conduction of legal monitoring // Monitoring of legislation on forests and the animal world: scientific and practical guide / S.A. Bogolyubov, D.B. Horokhov, M.E. Hlazkova etc.; Editor-in-Chief College of S.A. Bogolyubov, D.B. Horokhov, D.O. Sivakov. Moscow, 2011. 335–347 p. 269

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of legislative initiatives submitted to the State Duma1, as well as proposals to the Chambers of the Federal Assembly, the Government of the Russian Federation, the Administration of the President of the Russian Federation2. Because in a number of regions of the Russian Federation legal acts regulating the issues of the legal monitoring have not yet adopted, it is believed that the newly adopted legal acts should include: –– the public authority exercising the powers of coordination in monitoring by the various bodies in the territory of the region of the Russian Federation –– the procedure of interaction between the authorities of the region of the Russian Federation involved in the conduction of the legal monitoring in respect of information exchange; –– the terms (frequency) of the conduction of the monitoring activities specified in the framework of the approved monitoring plans, the term of the presentation of collected information to the authorized body for its generalization, the term of preparation and submission of the final document; –– the form of the approval of the final document. As already noted, the Decree of the President of the Russian Federation «On the Monitoring of Law Enforcement in the Russian Federation» was aimed on the improvement of the legal system of the Russian Federation and organization of the monitoring in its regions. The scope of the participation of state authorities of the regions of the Russian Federation in monitoring are defined at the federal level. It should be emphasized that, unlike the federal level, which includes the participation in the monitoring of executive authorities in respect of the regions of the Federation the generalized formulation is used — «the state authorities of the regions of the Federation». Thus, this concept includes legislative bodies of the regions of the Russian Federation. The analysis of the Provision on the monitoring of law enforcement in the Russian Federation shows that the bodies of the regions of the Federation: –– present each year the proposals for a draft monitoring plan and reports on the monitoring results, carried out by them to the Ministry of Justice of the Russian Federation; –– take into account within its competence in the preparation of proposals on draft monitoring plan the proposals of the institutes of the civil 1



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Ref. e.g.: The Resolution of the Legislative Assembly of the Nizhny Novgorod Region of October 23, 2008 No. 1252-IV «About the Adoption Provision on Monitoring of the Laws of the Nizhny Novgorod Region»; the Law of the Republic of Tatarstan of July 3, 2010 No. 49-ZRT «The Monitoring of the Laws of the Republic of Tatarstan. Ref. e.g.: The Report on major tendencies and experience in planning of the legislative activities of state authorities of the Kursk Region in 2009 and their impact on improving the quality of legislative support of public relations.

Chapter VI. Legal Technologies in Parliamentary Activities

society and the media on the adoption (publication), amendment or annulment (cancellation) of legislative and other normative legal acts of the Russian Federation; –– take into account in the preparation of proposals on draft monitoring plan the proposals of the relevant local authorities; –– take within their powers corrective measures on elimination deficiencies in the rule-making and (or) enforcement activities identified during monitoring; –– present to the Ministry of Justice of the Russian Federation the annual reports on the results of monitoring carried out by them in the previous year in accordance with the monitoring plan. In our opinion, the deputies of legislative bodies and the staff of their legislative machinery involved in monitoring now are in need of the clarification on the use of legally established indicators for monitoring. Here are some of them: 1) the non-observance of terms of reference by a public authority, public bodies and organizations in the adoption of a normative legal act. In applying this indicator the compliance with the reference of the authority in issuing normative legal act is assessed, including the assessment of compliance with the form and extent of the range of issues and terms of competence. The cases of interference in the scope of competence of other public authorities, public bodies and organizations are taken into account; 2) the distortion of the meaning of the provisions of the federal legislation when adopting a normative legal act. In applying of this indicator, the normative legal act is assessed for distortion in it of the provisions of the federal legislation in the development and adoption of normative legal act. The specific provisions of federal legislation, the meaning of which are distorted, when adopting a normative legal act shall be indicated; 3) the non-compliance of a normative legal act of the Russian Federation’s obligations or agreements in the sphere of international and (or) foreign economic relations. In applying of this indicator a normative legal act is assessed for its compliance or non-compliance with an international treaty of the Russian Federation or agreement in the sphere of international and (or) foreign economic relations. The content of the relevant international legal acts shall be considered in preparation of proposals for amendments to the normative legal act; 4) the incompleteness of the legal regulation of social relations. In applying this indicator the sufficiently of normative regulation of specific social relations is determined and the presence of the gaps in the normative legal acts that hinder the clarification of the meaning of the contained norms is detected; 5) the conflict of legal rules. The conflict of legal rules shall be considered as a contradiction between two or more provisions of a law or the 271

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difference between the contents of the general principles expressed in the system of legal rules and the provisions of particular legal rules. The conflicts of legal rules may result in the application of the rule, which is beneficial to the appropriate lawmaker, thus increasing the possibility of commission of corruption offenses. In case of conflict between normative legal acts the normative legal act having greater legal force should be applied; 6) the distortion of the meaning of the provisions of a normative legal act in its application. The distortion of the meaning of the provisions of a normative legal act in its application is detected by comparing the purpose and content of legal norms set by a normative legal act in their systemic relationships with the degree of specificity of conformity (standards), which is made in the act of enforcement. The distortion of the meaning of the provisions of the normative legal act by the enforcement body takes place in the case when in a formal reference to certain provisions of the normative legal act the use of these positions contrary to the purposes specified in this normative act, in violation of its internal logic is allowed; 7) the illegal or unreasonable decisions, actions (inaction) in the application of a normative legal act. In applying this indicator, a presence or absence of the information (including appeals of citizens and organizations) about the illegality or invalidity of decisions, actions (inactions) of the officials in the application of a normative legal act are detected; 8) the use of rules allowing broadly interpret the competence of the state authorities and local self-government. Unclear, overly general formulations used in determining the competence of state and local governments, raise the level of discretion of these bodies in making decisions, which makes a practice of the respective law enforcement less predictable. The presence of rules allowing to interpret broadly the competence of the state authorities and local self-government is revealed by the regulatory logical analysis of the relevant normative legal acts taking into account the practice of appeal in respect to the decisions adopted by the said bodies; 9) the uniform practice of application of the normative legal acts. The main indicator of the lack of a uniform practice of application of the normative legal acts is the adoption by the courts of different decisions in similar factual circumstances. In this case, the deviation from the principle of equality before the law and the court can be detected. Indicator of the presence (or absence) of a uniform practice of application of the normative legal acts is also used in the generalization of the decisions of other law enforcement bodies; 10) the contradictions between the normative legal acts of a general nature and normative legal acts of a special nature governing homogeneous relationship. 272

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When monitoring the normative legal act of a general nature on the existence of contradictions with the normative legal act of a special nature is analyzed. For the presence of contradictions with the normative legal act of a general nature a normative legal act of a special nature is analyzed; 11) the unanimous conceptual and terminological system in the normative legal acts. The unanimous conceptual and terminological system in the normative legal acts means the presence of unanimous legal, technical and other special terms, concepts, definitions, etc. In applying of this indicator, a normative legal act or a group of normative legal acts are evaluated with respect to the uniform use of common concepts, terms, and definitions, and a conclusion on the presence or absence of a unanimous conceptual and terminological system is made. It should be borne in mind that concepts and terms used in normative legal acts shall be applied uniformly in accordance with their meaning, excluding the possibility of different interpretation; 12) the duplicating legal rules in the normative legal acts. In applying of this indicator the normative legal acts are evaluated for the presence in them of duplicating rules, that is, the textual reproduction of the provisions of one normative legal act in the other, or the norms reproduced in the text of a normative legal act, previously set forth by the other normative legal act. In applying of this indicator, the provision of a normative legal acts is evaluated for the presence of norms with the coincident subject and instruments of legal regulation, which indicates the redundancy of legal regulation. § 3. The legal prognostication

The legal prognostication is variable (admitting several scenarios of the development of the studying scope) scientific prediction of the future state of the legal regulation as a whole or its individual elements (branches and sub-branches of legislation, legal institutions, certain provisions), and the possible social and economic impact due to the introduction of particular regulations. Even in Ancient Rome there was a key formula: «Lex prospicit, non respicit». (The law is looking forward, not back). As one of the methods of advancing reflection of reality1, the legislative activity is ex1



The anticipatory reflection — is the scientific reflection, which theoretically anticipates the objective possibility or objective necessity of the occurrence of certain events, decision-making, regulatory responses to those or other questions of public life. Through this reflection becomes possible a purposeful scientific regulation of public relations, foreseeing of the conditions for their future development, that is, selective, active transformative impact on the world around. 273

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pressed in the ability to visualize certain social phenomena that can occur in the future. The more comprehensive and complete manner the legislator is able to «foresee the future, the more effective and durable the adopted law will operate»1. The legal prognostication is an important part of the activities of the Parliament. This is due to the fact that prognostication in the legislative activity provides: –– the prospective of regulating of the legal sphere or its separate elements; –– the variability (the admissibility of a number of possible scenarios concerning the development of sphere of the legal regulation under investigation); –– the reliability of the data obtained during the conduction of prognostication which are scientific and practically justified; –– the consideration of the maximum possible number of social life conditions during the conduction of the legal prognostication, affecting the development of the law; –– the objectivity (conclusions of the legal prognostication do not depend on political will and the subjective interests and opinions); –– the probable development of a particular element of the legal sphere for the short, medium and long term; –– the improvement of quality and effectiveness of legislation and practice of its implementation by identifying the most socially reasonable scenarios for the development of the legal sphere; –– the prediction of possible mistakes in the legal regulation; and etc. The legal prognostication is intended to find such ways of the development of the legal sphere in the future that will minimize the effects of negative factors and will enhance the effectiveness of legal regulation. The problem of legal prognostication in the legal science refers to as new one, however there are many studies in this sphere, covering its objectives, levels, types, functions, basic instruments, and the effect on it of various social factors2. 1



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V.M. Syrykh. Legislation as a form of social engineering // Russian Law Journal. 1997. No. 3. 64 p. Ref., e.g.: R.A. Safarov. Prognostication in legal science // Soviet state and law. 1969. No. 3; The same. Prognostication in the public administration principles // Soviet state and law. 1970. No. 9; M.I. Lazarev. Ocean and future. The experience of legal prediction. Moscow, 1976; Scientific bases of Soviet lawmaking. Moscow, 1981. Ch. V; V.M. Syrykh. Predicting the effectiveness of the law on the stage of its development // Proceedings of All-Union Scientific Research Institute of Soviet Legislation. Vol. 36. Moscow, 1987; V.V. Hlazyrin. Predicting the effectiveness of the rule of law: a possible approach //

Chapter VI. Legal Technologies in Parliamentary Activities

At the same time, it is untimely to characterize the legal prognostics as the science1. «The technique of the prognostications in the sphere of the control of social processes is still developing mainly in the economic policy»2. The legislator not provided with the conclusions of the prognostication study, often makes mistakes, absolutizing social significance of certain objects of normative legal regulation or ignoring the new, progressive legal tendencies in the evolutionary dynamics of social processes and taking sudden, arbitrary decisions. The regulatory importance of the legal prognostication in the parliamentarian activity allows to look back at the legal history (domestic and foreign), evaluate it under the principle «pro et contra», identify the real needs in the legal regulation in the certain sphere of social relations, and on this basis to analyze the prospects for entry into force of the draft normative legal act, its effectiveness and social impact. There is no doubt that the prediction of the effects of the adoption and operation of a particular law is one of the most important criteria of legislative activity quality3. The concept of prognostication is a quite comprehensive: it is a hypothesis (the idea, based on the probability, possibility of something), a prediction (more or less correct assumption about what can and should happen, based on a certain life experience or special studies), and a prediction (conclusion on the basis of the available data about the upcoming development of any events, phenomena), and a prevision (conclusion drawn from a study of certain facts, information that could or should happen, occur, how the development of something can or should go further), and just a premonition (intuitive, subconscious expectations of something that might happen).

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Proceedings of All-Union Scientific Research Institute of Soviet Legislation. Vol. 41. Мoscow, 1988; E.A. Pavlodsky. The experience in predicting the effectiveness of a legal act with the help of expert estimations // The proceedings II-Union Scientific Research Institute of Soviet Legislation. Vol. 41. Moscow, 1988; O.A. Havrilov. The strategy making and social prognostication. Moscow, 1993; I.I. Lukashuk. Globalization, state, law, XXI century. Moscow, 2000. Chapter XI; The sociology of law: the textbook / Editor-in-Chief V.M. Syrykh. Moscow, 2004. 172–175 p., 427–447 p. «Prognostics is the science of the process of knowledge obtaining of the future models probability subject to verification of past, present and future experience» (ref. R. Safarov: Legal prognostication, 108 p.). Read more details about science as a prognostication ref.: D.M. Hvishiani, V.A. Lisichkin. Prognostics. Moscow, 1968; A. Bauer, B. Eichhorn, Kroeber, and others. Philosophy and prognostics. Moscow, 1968; V.H. Vinohradov, S.I. Goncharuk. The laws of society and the scientific prediction. Moscow, 1972; P.P. Lakis. Methodological and logical aspects of prognostication. Riga, 1985. I.I. Shuvalov. Theory of lawmaking. Moscow, 2006, 71 p. Ref.: Yu.A. Tikhomirov. Legal design. Criteria and mistakes // Russian Law Journal. 2008. No. 2. 275

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Legal prognostication is aimed not only at finding the best solutions, but also at preventing of possible adverse consequences of the entry into force of a particular draft law, at preventing of social tension caused by the shortcomings of the legislation. At this, the legal prognosis should be closely related to other kinds of social prognostication (economic, technical, environmental, sociological, and cultural, etc.) that will ensure the adoption of the well-considered and professional predicted decisions in the legal sphere. In general, the scientific legal prognostication has not enough attention. In particular, the state of the Russian law is not differed by the system balance, suffering from inconsistency, gaps, and many other shortcomings, makes it necessary to update the work on prognostication of the development and improvement of legislation. Studying of the issues on prognostication gets a particular relevance in view of the increased practice of use of program-target methods and the methods of strategic planning and prognostication (especially in relation to social and economic development) in the public administration. One of the example is the Concept of long-term social and economic development of Russia until 2020, serving as a strategic act, determining the main general state directions of social and economic development. The prognostication should be distinguished from the designing, programming and planning. The designing means the building of the system of presumptions concerning potential measures needed to be implemented in the sphere of the development of legislation or improvement of public administration. Any programming (for example, the federal target program or the target program of the region of the Russian Federation) requires the presentation of the basic principles, goals and objectives of the planned activities, and plan is a program system of measures, providing the procedure, sequence and timing of specific activities aimed at achieving planned goal. The planning is an imperative activity assuming the obligatory execution by the relevant entities. One or another approved plan shall be subject to compulsory implementation by the state bodies. At the same time, it should be based on an appropriate prognostication defining social and economic feasibility of the adoption of a particular legislative or administrative decision. The legal prognostications can be both autonomous and integrated into the social and economic prognosis and the concept of reforms. As noted, the legal prognostication is characterized by the fact that it always includes the element of variability, and there are several possible scenarios for the further development of the object of prognostication. The legal prognostication differs from the plans, programs and explanatory notes to the draft laws, because the above-mentioned documents 276

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contain uncontested goals and objectives and they are subject to compulsory implementation. The prognostication also assumes the possible scenarios of the particular legal phenomenon development, and its results serve as guidelines. In general, the legal prognostication is an independent form of scientific and practical activities, with special instruments. Meanwhile, the independent legal prognostications are currently still a rarity. As an exception, we can mention the scientific prognostications in the Concepts of development of the Russian legislation, prepared by the Institute of Legislation and Comparative Law under the Government of the Russian Federation1, as well as the Concept of development of civil legislation of the Russian Federation2. The analysis of legal practice has shown that the use of prognostication methods aimed to determine the ways of improvement of the legal regulation has taken place in only two regions of the Russian Federation — in Moscow and in the Republic of Sakha (Yakutia). The Concept of improving the legislation of Moscow contains the assessment of legislation at the time of the adoption of this act, reveals the main problems of development of the legislation, proposes the ways of their solution, and determines the main directions of the further development of the legislation, according to which a plan of legislative activity is prepared3. In the Republic of Sakha (Yakutia) the branch legislative concept is adopted. It provides the goal, objectives, principles and basic directions of development of environmental legislation of the Republic4. In most cases, the legal prognostication is built-in, secondary in respect to other kinds of prognostication, because the law formalizes the administrative decisions made in the political, social, economic, and other spheres. 1



2



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Ref.: Concept of development of the Russian legislation / Editor-in-Chief L.A. Okunkov, Yu. A. Tikhomirov, Yu.P. Orlovsky. Moscow, 1994; Legal reform: concept of development of the Russian legislation / Editorial board: L.A. Okunkov, Yu.A. Tikhomirov, Yu.P. Orlovsky, M.Ya. Buloshnikov. Moscow, 1995; Concept of development of the Russian legislation / Editorial Board .: L.A. Okunkov, Yu. A.Tikhomirov, Yu.P. Orlovsky. Moscow, 1998; Concept of development of the Russian legislation / Editor-in-Chief T.Y. Khabrieva, Yu.P. Tikhomirov, Yu.P. Orlovsky. Moscow, 2004; Concept of development of the Russian legislation / Editor-in-Chief T.Ya Khabrieva, Yu. A. Tikhomirov. Moscow, 2010. Preparation on the basis of Decree of the President of the Russian Federation of July 18, 2008 No. 1108 «On the Improvement of the Civil Code of the Russian Federation». Ref.: Resolution of the Moscow Government of April 19, 2005 No. 238-PP «On the Improvement of Legislative Activity of the Executive Authorities of Moscow». Ref.: Resolution of the National Assembly (Il Tyumen) of March 2, 2011 HS No. 1000-IV «On the Concept of the Development of the Environmental Legislation of the Republic of Sakha (Yakutia)». 277

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In the legal literature, it has been truly stated that there is a complex system of dependencies of legal norms from the material, economic relations within the society and the system of social phenomena mediating this relation: the classes, their relations, needs, goals, interests, and others1. In the normative legal acts it is sometimes directly stated that the task of the legislator is to ensure the legal prognostication of social and economic development: in particular, the legislation of the Primorsk Territory sets forth that the Strategy of social and economic development provides a legislative framework for the priority objectives and targets of public authorities activities of the Primorsk Territory to settle the problems of social and economic development determined in the prognostication of social and economic development of the Primorsk Territory2. The normative legal acts of Moscow provides that the development of economic legislation of Moscow shall be determined mainly by the tasks of reforming of the public administration in the economic sphere and support of business entrepreneurship in the city3. Often, the legal prognostication is represented as a separate section in the act of the strategic and program and target character. For example, in the Strategy for the development of science and innovations in the Russian Federation for the period up to 2015 (approved by the Interdepartmental Commission for science and innovation policy in protocol No. 1 of February 15, 2006) a special section devoted to the reformation of the legislation of the Russian Federation for the purposes of stimulation of the innovative activities was allocated. This section includes a list of normative legal acts to be adopted in order to implement the Strategy, and their main body was determined. However, not all federal laws mentioned to be adopted, were developed. In the normative legal acts, the term «prognostication» is used primarily in economic meaning. Thus, according to p. 1 Art. 1 of the Federal Law of July 20, 1995 No. 115-FZ «On the State Prognostication and Programs of Social and Economic Development of the Russian Federation» the state prognostication of social and economic development of the Russian Federation is a system of scientifically grounded views on the directions of social and economic development of Russia, based on the laws of market economy. The results of state prognostication of socio-economic development are 1



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Ref.: V.M. Syrykh. Predicting the effectiveness of the rules of law on the stage of their development // The problems of perfection of Soviet legislation. Proceedings. No. 36. Moscow, 1987. 20 p. Ref.: Law of the Primorsk Territory of December 22, 2010 No. 721-KZ «On the strategic planning of social and economic development of the Primorsk Territory». Ref.: Resolution of the Moscow Government of April 19, 2005 No. 238-PP «On improvement of legislative activity of the executive authorities of Moscow».

Chapter VI. Legal Technologies in Parliamentary Activities

used in the decision-making activity of legislative and executive bodies of the Russian Federation in the socio-economic sphere. According to p. 1 Art. 174.1 «The Prognostication of Budget Revenues» of the Budget Code of the Russian Federation, budget revenues shall be predicted on the basis of the forecast of socio-economic development of a territory under the terms of the legislation on taxes and fees and the budgetary legislation of the Russian Federation effective on the date of introducing a draft law (decision) to a legislative (representative) body, as well as of the legislation of the Russian Federation, laws of the regions of the Russian Federation and municipal legal acts of representative bodies of municipalities establishing non-tax revenues of budgets of the budgetary system of the Russian Federation. Under sub. 8 p. 1 Art. 7 of the Law of the Russian Federation of April 19, 1991 No. 1032-I «On the Employment in the Russian Federation» and Resolution of the Government of the Russian Federation of June 3, 2011 No. 440 «On the Development of the Prognostication of the Balance of Manpower Resources» the Ministry of Social Security and Labor of the Russian Federation makes a prognostication of the balance of manpower resources with the participation of interested federal executive bodies, state budget funds and the Central Bank of the Russian Federation. In the normative legal acts, the matters of prognostication of emergencies1, development of a particular economy sectors, science2 and others are also considered. However, in the economy the category of financial, rather than a legal prognostication is used. The legal aspects of prognostication as the most difficult to study remains without due attention. This is explained mainly by the fact that the legal prognostication has to take into consideration of many factors of statics and dynamics of the legal sphere, which makes necessary to involve in prognosticated research the representatives from different spheres of knowledge. The organization of the legal prognostication includes a selection of the executor of legal prognosis, methods of its conduction, consideration of positive and negative factors affecting the development of the prognostication object, conduction of prognostication research and use of its results. 1



2



Ref. e.g.: The Decree of the Government of the Russian Federation of January 6, 2006 No. 1 «On the Federal Target Program «Reduction of Risks and Mitigation of Natural and Man-made Disasters in the Russian Federation until 2010». Ref.: The Decree of the Government of the Russian Federation of December 7, 2001 No. 866 «On the Federal Target Program for the Development of the Kaliningrad Region for the Period until 2014»; The Resolution of the Government of the Russian Federation of October 17, 2006 No. 613 «On the Federal Target Program «Researches and Development on Priority Directions of Scientific-technological Complex of Russia for 2007–2012». 279

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The legal prognostication is a promising direction, which can be used for the study of scenarios and prospects for the development of branches of the Russian legislation, cross-branches complexes, institutions, normative legal acts. With the help of legal prognostication the quality of legal regulation of certain social relations, the effectiveness of the development of the respective spheres of the public administration and others can be assessed. At this, the prognostication task is, on the one hand, to determine the main directions of further development of the branch of legislation or the legal institution, and on the other — to optimize the legal regulation with regard to economic and political goals of public administration. The prognostication of the legislation in the parliamentary activities shall meet the following requirements: –– the comprehensive study of possible scenarios for the development of the prognosticated object (branch of law, system of normative legal acts, separate law or legal institution) in order to elaborate the best solution under these circumstances; –– the assessment of possible positive and negative effects of a particular scenario of the development of prognosticated object; –– the objectivity of the prognostication (necessary to consider that the maintenance of the results of the prognosis study have a certain impact on the views and interests of the drafters of a normative legal act, so in some cases, it is necessary to attract the independent experts for an objective assessment of its results); –– the study of the public opinion in those cases where the prognosticated object affects the interests of the whole society; –– the examination of the proposed legislative solution for corruption; –– the use of the legal monitoring data during a legal prognostication, since the systematic monitoring permits to analyze the effectiveness of legal regulation, to assess the quality of legal acts and to amend them, to monitor the law enforcement practice, to identify the cases of non-fulfillment of the legislation and to counteract the corruption. In the analysis of conditions affecting the prognosticated object in the parliamentary activities, different solutions are provided. It is necessary to take into account all the possible consequences connected with the introduction of each of the scenario, including the possible benefits, risks and costs. The prognostication of social phenomena is usually multioptional. When designing a prognosticated model of a certain activity three levels: monodraft, multidraft and megadraft are distinguished1. With regard to legislative activity a prognosticated monodraft is a prognosticated model of a separate legislative act or some of its individual part, 1



280

For details, ref.: A.M. Novikov, D.A. Novikov. Methodology. Moscow, 2007.

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multidraft is a comprehensive prognosticated draft that includes a prognosticated model of legislative acts, megadraft is the prognosticated model of development and improvement of a number of the legislative branches or the legislation system as a whole. The above levels of prognosticated activity involve the use of a variety of methods — both general scientific (analysis, synthesis, induction, deduction, dialectic method), and the special legal (historical and legal, comparative law, and others). Among the typical for the legal prognosticating methods: the groups of statistical methods and expert assessments, scenario method, legal experiment, comparative legal method can be distinguished. The statistical methods are aimed at identifying the patterns of development of the prognosticated object on the basis of processing of the quantitative information about it. One of the statistical methods is extrapolation which is in the legal prognostication is expressed in the transference of the past and present state of the object under examination on its future state. The methods of the expert assessments in the legal prognostication involve the use in the prognosticated research of the expert opinions of a particular sphere of knowledge. In this case, as one expert, so a group of experts may be questioned. In order to take the opinions of the experts such techniques as interview, questionnaire, «brainstorming», expert opinion, and others are used. The processing of the results of expert assessments is carried out by using mathematical and statistical instruments. All methods of the legal prognostication are systematically interrelated with each other; often the results of one method form the basis for another. No one method of legal prognostication is universal; all methods shall be used in their functional unity. The combination of different methods and techniques usually provide the best results. A set of methods of the prognostication researches may vary depending on the goals, objectives and specificity of a certain legal prognosis. The application of conceived methods during the study of the object of legal prognostication is a guarantee for the objectivity of the results of this prognostication, their effective use in the lawmaking activities. The most difficult is the prognostication of the development of complex branches and institutions of legislation, as in this case it is necessary to take into account the specifics of each of the constituent elements, as well as the influence of various factors. For example, during the legal prognostication in the sphere of health care it is necessary to analyze the impact of economic factors (decrease in domestic production of drugs), social (unemployment, deterioration of the living standards), environmental (unfavorable environment for the health of citizens), and others. 281

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In general, the prognosticated assessments and recommendations can be used in the planning of parliamentary activities, for the preparation of specific draft laws, in the development of strategies for the development of legislation in a particular period. Prognostication in parliamentary activities will reduce the risk of mistakes in the adopted legal and organizational decisions, the adverse effects of the implementation of a specific law, minimize the risks of its possible negative impact on social relations. The results of the prognosticated research have the probabilistic nature (they can as well be confirmed in practice, so be refuted), so they are issued in the form of recommendations. Ideally, any important draft law introduced in the Parliament shall be accompanied not only by the financial and economic feasibility, but also by the materials of legal prognostication. The presence of the scientific prognostication gives the opportunity to overcome the subjectivism of the authors of a draft law, allows the legislator to assess the full scope of implications of the draft law adoption, which ultimately helps to reduce the negative consequences of unsuccessful legislative decisions1. It is important to bear in mind that the conduction of prognosticated research requires additional time costs, attraction of the specialists of the corresponding profile, certain financial expenses. Therefore, the prognostication of the consequences of the law implementation as a stage of legislative activity can be carried out selectively, primarily in relation to normative legal acts, which have a high degree of public importance, as well as the fundamental nature for the development of legal relations in the relevant sphere of regulation. In the legal prognostication, it is important to avoid the possible prognosticated mistakes: univariant scenario, lack of criteria for assessment of the possible scenarios of development of the prognosticated object, undervaluation of positive and negative factors, underestimating of the subjective factor and force majeure circumstances (crises, epidemics, etc.). The legal prognostication intended to find such ways of development of the legal sphere in the future, that will minimize the effects of negative factors, will contribute to improving the quality and efficiency of legal regulation. Thus, the prognostication of the development of legislation in the parliamentary activities is an important instrument for ensuring the appropriate quality and functional effectiveness of the adopted normative legal acts. The practical significance of the work on the legal prognostication is caused by the fact that the quality of a law involves its assessment primarily from the point of view of its tasks and search for the most efficient ways 1



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Ref.: V.I. Radchenko, O.A. Ivanyuk, I.V. Plyugina and others. Practical aspects of the legislation and the effectiveness application of the prognosticated standards // Russian Law Journal. 2008. No. 8. 3–14 p.

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to achieve the goal, balance with the legislation, generally accepted principles and norms of international law, compliance of the purview of a law with the social and economic conditions emerging in the sphere of its regulation. § 4. The legal experiment

One of the legal technologies is the legal experiment. It is an experiment in which the legal rule or set of rules serve as an experimental factor. In the course of legal experiment either the effectiveness of already existing rule is tested, or the efficiency of the legal novel that is being prepared1 is prognosticated. The legal scientists of the Soviet period have noted the importance of this technology as a method of lawmaking, recommending to provide the use of certain legal acts on an experimental basis2. In the modern legal literature it is rightly noted that the approbation of the results of economic and legal researches in the course of experiments is already proven itself, allowing to simulate artificially the economic phenomena and processes with the aim of their study in the most favorable conditions and further practical use, and continuous synthesis of this experience at every stage of research chain. At this, it is noted that there is a fairly common usage abroad of economic and legal experiments in various spheres and at different levels. The most common case is the adoption of local acts that limit the operation of legal norms within individual regions or areas in order to identify their advantages and disadvantages. Quite commonly, such experiments are carried out in France, China. In the USA, economic and legal experiments are carried out at all levels of government with aim of reconstruction or imaginable design of economic phenomenon or process for its study and further implementation3. We note that some authors consider legal experiment as one of the stage (so-called additional) of legal monitoring4. In studies on the theory of law, 1



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Ref.: V.V. Lapaeva. The sociology of law / Editor-in-Chief V.S. Nersesyants. Moscow, 2000, 63 p. For details, ref.: R.A. Safarov. Social experiment and problems of state and law // Soviet state and law. 1964. No. 10. 21–22 p.; O.V. Smirnov. Efficiency of legal regulation of work organization in the enterprise. Moscow, 1968. 38 p.; The legal experiment and improvement of legislation / V.I. Nikitinsky, I.S. Samoschenko, V.V. Lapaeva etc.; Editor-in-Chief V.I. Nikitinsky, I.S. Samoschenko. Moscow, 1988. Ref.: T.Y. Khabrieva. Economic and legal analysis: methodological approach // Russian Law Journal . 2010. No. 12. Ref.: Yu. H. Arzamasov, Ya.E. Nakonechny. Monitoring in lawmaking theory and methodology. Moscow, 2009. 79 p. 283

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some authors qualify legal experiment as private-scientific method of knowledge of legal phenomena1, the other — as specific2. In any case, such legal technology is an important instrument to improve the quality of both legislative activity and the enforcement practice. In the legal literature it is noted that the use of legal experiment provides great opportunities of lawmaking policy to establish an effective mechanism for lawmaking and implementation of its results3. In the modern Russian lawmaking practice legal experiment has achieved some progress. Thus the operation of a law (federal or of the region of the Russian Federation) does not extend to the entire country, but to a certain area: one or more regions of the Russian Federation and (or) municipalities. In particular, in accordance with the Federal Law of July 20, 1997 No. 110-FZ «On the Conduction of an Experiment on Real Estate Taxation in Veliky Novgorod and Tver»4 in these cities in 1997–2006 the experiment on calculation of the real estate tax based on the assessment of the market value of real estate was conducted 5; in the course of municipal reform the several regions of the Russian Federation introduced the Federal Law of October 6, 2003 No. 131-FZ «On the General Principles of the Organization of Local Self-government in the Russian Federation» on their territories in advance; the Unified State Exam was practically tested and endorsed by some of regions. The relevant laws on the legal experiments in taxation were also adopted by the regions of the Russian Federation. It is the Law of the Ryazan Region of April 30, 1996 No. 32 «On the Experiment on Budgetary Relations with the Klepikovsky District», the Law of the Volgograd Region of December 20, 1999 No. 356-OD «On the Procedure of Collection of the Single Tax from Collective Farms of the Kletsky, Kotelnikovsky, Oktyabrsky, Svetloyarsky and Staropoltavsky Districts of the Volgograd Region in the Form of an Economic Experiment», the Law of the Volgograd Region of December 28, 1999 No. 359-OD «On the Procedure of Collection of the Single Tax from the Peasant Farm Enterprises of Volgograd Region in the Form of an Economic Experiment», Law of Novgorod region of January 1



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Ref.: V.A. Tolstik, N.L. Dvornikov, K.V. Karhin. Systemic interpretation of legal norms. Moscow, 2010. Ref.: A.V. Melekhin. The theory of state and law: Textbook // Legal reference system «ConsultantPlus». Ref.: A.P. Mazurenko. Russian lawmaking policies: concept and reality. Moscow, 2010. The collection of laws of the Russian Federation. 1997. No. 30. Art. 3582. This experiment was continued in accordance with the Federal Law of July 28, 2004 No. 92-FZ «On the Continuation of the Experiment on Real Estate Taxation in Veliky Novgorod and Tver and Amendments to the Federal Law «On the Conduction the Experiment on Real Estate Taxation in Veliky Novgorod and Tver».

Chapter VI. Legal Technologies in Parliamentary Activities

13, 2000 No. 106-OZ «On Conduction of the Experiment on Real Estate Taxation in Veliky Novgrod». The law of Moscow of September 29, 1999 No. 36 «On the Experiment on the Sale of Lands in City Zelenograd» defined the procedure and conditions related to the conduction of the experiment on the sale of lands owned by Moscow and located in the city of Zelenograd. This experiment was carried out during the year. As a result of this experiment, the Administration of Moscow City had to introduce to the Moscow City Duma, a proposal on the feasibility of large-scale transfer of lands into private property as a factor of development of Moscow. The law of Moscow region of July 18, 1997 No. 36/97-ОZ «On Moscow Regional State Legal Experiment in the Sphere of Local Self-government in the Kashirsky District of the Moscow Region» established the procedure and conditions of the regional legal experiment in the sphere of local self-government in the Kashirsky District of the Moscow Region. Initially, the said state legal experiment was lasting for four years from January 1998. Then, this period was extended until January 1, 2006 in accordance with the law of Moscow region of October 30, 2001, No. 162/2001-OZ «On the Extension of the Term of Moscow Regional State Legal Experiment in the Sphere of Local Self-government in the Kashirsky District of Moscow Region». However, it should be stated that the legal experiment is very rarely used in the activity of the Russian legislative bodies1. It should be noted that the use of legal experiment is possible not only in the legislative activities of the Parliament itself. This legal technology is actively used by other branches of government. As an example, we can mention the practice of the courts of the Russian Federation. The experimental model of juvenile justice, taking into account the international legal standards, are approbated as the legal experiment in the courts of general jurisdiction of the regions of the Russian Federation2. Thus, the specialized judicial assemblies hearing of cases concerning the rights and legitimate interests of minors are established in the judicial boards on civil and criminal cases of the Supreme Court of the Republic of Bashkortostan3. 1



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The modern researchers recognize the urgent need for institutionalization and active use of experimental legislation. Ref.: A.A. Dzhagaryan, N.V. Dzhagaryan. Separation of regulatory powers between the government levels in the field of local self-government organization (based on the practice of the Constitutional Court of the Russian Federation) // Journal of constitutional justice. 2012. No. 2. Ref.: E.L. Voronova. Justice in respect to minors in conflict with the law: issues of law enforcement and legislative support // Issues of juvenile justice. 2012. No. 2. Ref.: H.Yu. Karimova. The implementation by the minors of the right to protection in criminal cases on the example of the Republic of Bashkortostan // Legal world. 2012. No. 4. 285

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The arbitration courts were also the initiators of different legal experiments. For instance, the experiment to review cases involving arbitration assessors was conducted. In the Regulation on the experiment on hearing of cases with the involvement of arbitration assessors is stated that the experiment on hearing of cases with the involvement of arbitration assessors is aimed at creating conditions to involve to the justice in arbitration courts the individuals with special knowledge and experience in business and other economic activities1. In the Ural Federal District in 2008, the conduction of legal experiment on introduction of conciliation procedures and alternative methods of resolving the legal conflicts was initiated. Earlier the work on introduction of the idea of conciliation began in the Arbitration Court of the Sverdlovsk Region2. However, namely the Federal Assembly and the legislative bodies of the regions of the Russian Federation as the bodies adopting the appropriate laws, have wide opportunities to apply the legal experiment in order to improve both the lawmaking activity, and law enforcement practice. After the conduction of the legal experiment in modern conditions, it is possible to compare the effect of the legal rules in different areas (regions of the Federation, municipalities). At this, the obtained data is possible to use in subsequent legislative process at the federal and regional levels3. In the legal literature as the nearest prospects of introducing the legal experiment is considered granting of state bodies of the subjects of the Russian Federation with the new powers proposed by the working groups formed by the President of the Russian Federation. According to some scientists, it can be experimentally introduced in some regions of the Russian Federation, and the proposed approbation can be implemented within the framework of agreements between the Russian Federation and its regions on delineation of jurisdiction under procedure of the conduction of the legal experiment on introduction of the new model of the separation of powers4. One form of introduction of the legal experiment is the stimulation of so-called growing-points of social and economic welfare of the country. «Growing-points» in this case are socially and economically promising segments, which can have both industry and territorial aspect. In the latter case, it is the presence of certain regions of 1



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Ref.: in the same the Comment to the Arbitration Procedure Code of the Russian Federation (itemized). 2nd ed. / Editor-in-Chief. P.V. Krasheninnikov. Moscow, 2009. Ref.: I.V. Reshetnikova. Cultivating of the conciliation ideas // Russian judge. 2010. No. 4. Ref.: Legal monitoring: scientific and practical guide. 115 p. Ref. e.g.: V.A. Cherepanov. Federal relations: prospects for contractual regulation //Russian Law Journal. 2011. No. 11.

Chapter VI. Legal Technologies in Parliamentary Activities

the Russian Federation capable to more rapid social and economic development. Within the framework of the legal experiment it is possible to create the necessary legislative conditions for maximum the social and economic development of such «growing-points», which, in turn, may give impetus for the development of neighboring regions of the Russian Federation or municipalities. In this case, it is necessary to select carefully the regions of the Russian Federation, in which such legal experiment will be held — the relevant regions of the Federation shall have the necessary financial, organizational and human resources for advancing development. During the development and implementation of legislative act, regulating the relevant legal experiment all the possible costs and benefits for various social groups should be evaluated. Also, it should be found the causal relationship between the introduction of the regulation and the solution of the problem to eliminate which such regulation is proposed. The immediate implementation of the experiment should be closely connected to the implementation of legal monitoring. In this case the assessment of the effectiveness of the relevant legislation should be the key factor.

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Chapter VII. Parliamentary Control

§ 1. Parliamentary control: the concept, content and principles of effecting

The execution of the control function by the Parliament is one of the most important components of its activities. The Constitution of the Russian Federation doesn’t set forth the control function of the Federal Assembly in explicit form. According to the constitutional rules in order to execute the control over the federal budget the Chambers of the Parliament are authorized with the following powers: to form the Accounts Chamber of the Russian Federation (p. 5, Art. 101); Government of the Russian Federation is obliged to report on the execution of federal budget and to submit annual reports on the results of its activities, including on the issues that were raised by the State Duma (sub. «a» p. 1, Art. 114). The constitutional rules are detailed in the federal laws. The basic regulations governing the implementation by the Parliament of the control function are the Federal Laws of May 7, 2013 No. 77-FZ «On the Parliamentary Control» and of December 27, 2005 No. 196-FZ «On the Parliamentary Investigation of the Federal Assembly of the Russian Federation». Some federal laws contain rules concerning the supervisory powers of the Parliament on the matters of the legal regulation. In particular, the Federal Law of January 10, 1996 No. 5-FZ «On the Foreign Intelligence» contains Art. 24 «Parliamentary Control over the Activities of Foreign Intelligence Bodies of the Russian Federation»; the Federal law of May 27, 1996 No. 57-FZ «On the State Guard» (as subsequently amended) specifies that control over the federal bodies of state security guards service is also provided by the Federal Assembly. The procedural aspects of the implementation of the parliamentary control are established by the Regulations by the Chambers of the Federal Assembly. In the regions of the Russian Federation, the implementation of the legal regulation of the control function performed by the legislative bodies is various. For example, in some regions of the Russian Federation, the control powers of the relevant parliaments are set forth by the constitutions. For example, Art. 68 of the Constitution of the Republic of Adygea defines that the State Council — Khasa — the Republic of Adygea exercises the parliamentary control. The similar provisions are contained in Art. 99 of the Constitution of the Kabardino-Balkar Republic in respect of the Parliament of the Republic, Art. 64 of the Constitution of the Republic of Mari 288

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El in respect of the National Assembly of the Republic. The Constitution (Fundamental Law) of the Republic of Sakha (Yakutia) in Art. 54 definitely determines the status of the National Assembly (Il Tyumen) as a representative, legislative and control body. In some regions of the Russian Federation the special laws on the legislative state bodies containing rules devoted to the execution of parliamentary control. For example, in Art. 2 of the Law of the Karachai-Cherkess Republic of February 12, 1999 No. 576-XXII «On the National Assembly (Parliament) of the Karachai-Cherkess Republic» the control functions are enlisted among the tasks and functions of the Parliament. The Law of the Kabardino-Balkar Republic of December 10, 2003 No. 110-RZ «On the National Assembly (Parliament) of the Kabardino-Balkar Republic» contains Chapter 4, defining the objectives of parliamentary control, its forms and certain procedural aspects1. The Republic of Dagestan issued the Law of November 23, 2010 No. 66 «On the Control Powers of the National Assembly of the Republic of Dagestan», a similar law was adopted in the Republic of Mordovia2. The parliamentary control is a system of rules governing the established procedure of the conduction by the Parliament of control and audit of the activities of the executive authorities and is aimed at assessing of these activities, with the possible application of sanctions3. In other words, the parliamentary control is a complex of legal and organizational measures implemented by the representative (legislative) bodies of different levels of government and aimed at verifying the activity of the executive authorities to ensure the proper execution of laws. The Federal Law «On the Parliamentary Control» (Art. 2) among the purposes of parliamentary control in addition to ensuring compliance with the Constitution of the Russian Federation and execution of federal constitutional laws and federal laws, protection of the rights and freedoms of 1



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Forms of the parliamentary control are regulated, for example, by Ch. 6 of the regional law of the Rostov Region of September 18, 2002 No. 270-ZS «On the Legislative Assembly of the Rostov Region», Art. 8.1 of the Law of the Republic of Kalmykia of September 27, 2001 No. 133-II-Z «On the People’s Khural (Parliament) of the Republic of Kalmykia», etc. Law of the Republic of Mordovia of October 30, 2008 No. 103-З «On the Control Powers of the National Assembly of the Republic of Mordovia». In the Karachai-Cherkess Republic the implementation of the control functions of the regional Parliament in the field of budget and finances is regulated at the level of the law — the Law of the Karachai-Cherkess Republic of October 9, 1998 No. 479-XXII «On the Control Functions of the National Assembly (Parliament) of the Karachai-Cherkess Republic in the Field of Budget and Finances». Ref.: E.V. Kovryakova. Parliamentary control: international experience and Russian practice. Moscow, 2005, 12 p. 289

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man and citizen stipulates the following: strengthening of the rule of law; identification of key issues in the activities of the state bodies and raising the effectiveness of the system of state administration; counteracting corruption; study of the practice of the application of legislation of the Russian Federation, working out of recommendations directed towards the improvement of legislation of the Russian Federation and raising the effectiveness of their execution. Thus, the following features are characteristic for the parliamentary control: firstly, it is a legal mechanism which includes both regulatory and law-enforcement level; secondly, limited nature — the law establishes the grounds for the control and its forms; the procedures themselves are regulated in detail; thirdly, the specific purpose — that is the verification of the activities of the executive bodies (a mechanism ensuring a balance of powers, can be considered as an element of the system of checks and balances). The parliamentary control, being the specific activity of the state bodies, is carried out in accordance with the principles of the legality, observance of the rights and freedoms of a man and citizen, separation of powers, autonomy and independence of the subjects of the parliamentary control, consistency, and publicity. The principle of the legality during the parliamentary control means that the control activities are carried out by the Parliament in the cases established by the law, as well as in the procedure prescribed by the legislation. This principle, as well as the principle of separation of powers, ensures the separation of branches of powers, preventing unlawful intervention of the one branch of power in the activities of the other. Since the implementation by the Parliament of its control functions may affect the rights and legitimate interests of the citizens, officials and legal entities, it is important to protect the constitutionally guaranteed rights and freedoms. Therefore the principle of observance of rights and freedoms of a man and citizen in the implementation of the parliamentary control is one of its most important components. The autonomy, independence and openness (publicity) of the parliamentary control ensure the objectivity of control measures undertaken by the Parliament and decisions adopted by it, their availability to the public. Taking as a basis of the parliamentary control the principle of the systemacity is intended to ensure the effective implementation of the control measures through a concerted and ordered activity of all its subjects. According to Art. 13 of the Federal Law «On the Parliamentary Control» the measures necessary for the implementation of the parliamentary control are planned, they are included into the action plan of the Chambers of the Parliament on the initiative of factions of the State Duma, committees and commissions of the Chambers, parliamentarians. At the same time, the 290

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measures on the implementation of parliamentary control may be permanent and one-time. The subjects of the parliamentary control are the Chambers of the Federal Assembly, committees and commissions of the Chambers of the Parliament, parliamentarians, and parliamentary commission established to conduct a parliamentary inquiry. The process of parliamentary control implementation is staged and includes: obtaining and collecting of information necessary to make responsible decisions and formation of opinion on the relevant matter; information analysis; elaboration of a specific position on the issue1. The Federal Law «On the Parliamentary Control» includes 18 forms of parliamentary control (Art. 5), in particular: consideration by the State Duma the question of confidence to the Government of the Russian Federation; hearing of annual reports of the Government of the Russian Federation on the results of its activities; execution of prior, current and subsequent parliamentary control in the sphere of budgetary relations; execution of the parliamentary control in respect of the Central Bank of the Russian Federation in the forms provided by the Federal Law of July 10, 2002 No. 86-FZ «On the Central Bank of the Russian Federation (Bank of Russia)»; direction of parliamentary and deputies inquiries; appointment and dismissal of the Chairman of the Accounts Chamber of the Russian Federation, the Deputy Chairman of the Accounts Chamber of the Russian Federation, the auditors of the Accounts Chamber of the Russian Federation; the holding of parliamentary hearings; the holding of parliamentary investigations, etc. The forms of parliamentary control can be classified by various grounds. For example, depending on the bodies exercising the parliamentary control the following types are distinguished: control exercised by the Parliament itself (for example, a parliamentary inquiry); control exercised by the authorities and officials of the Chambers of the Parliament (e.g., the activities of the investigative commissions, deputy inquiry); parliamentary control exercised by bodies outside the structure of the Parliament bodies (e.g., activities of the Accounts Chamber of the Russian Federation, the control and audit bodies of the Russian Federation). On temporal criteria: a preliminary, current and subsequent parliamentary control are distinguished. The most traditional is the current (conducted) control during which the control over the current implementation of a law is carried out. On the content: a parliamentary control in the financial sphere, in the sphere of observance of human rights and freedoms, in the sphere of the 1



Ref.: E.V. Kovryakova. Op. cit. 14 p. 291

The Parliamentary Law of the Russian Federation

security of the State, in the sphere of information, in the sphere of environmental protection, etc. can be allocated. § 2. The forms of realization of control powers by the parliamentary bodies of the Russian Federation

The most important power carried out by the Parliament in the control sphere in view of constitutional and political consequences is the expression of confidence to the Government of the Russian Federation (the expression of nonconfidence to senior official of the region of the Russian Federation). The Constitution of the Russian Federation does not provide grounds for raising the issue of confidence to the Government of the Russian Federation. As a rule, this issue is of political nature, and the appearance of the possibility of using this form of control is connected with the activity of the opposition to the Government. The problematic nature of the implementation of this parliamentary power of lies both in the procedural features, and in its consequences. According to p. 3 and 4 of Art. 117 of the Constitution of the Russian Federation an expression of no confidence or refusal of confidence to the Government of the Russian Federation by the State Duma does not entail a mandatory resignation of the Government. The President of the Russian Federation decides its future. At the same time, a deterrent procedure is set — the possibility of the dissolution of the State Duma. The early termination of powers of the State Duma of one content and the election of a new composition of the said Chamber of the Federal Assembly does not affect the future of the Government, because in accordance with Art. 116 of the Constitution of the Russian Federation, the Government shall resign its powers just before the newly elected President of Russia1. The State Duma is practicing the use of such a specific form of expression of no confidence to executive power, as a statement of no confidence to the individual members of the Government2. The current Russian legislation does not provide such authorities of the State Duma, so these votes of no confidence are of an absolutely political nature and do not entail legal consequences. 1



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Despite the threat of dissolution, the State Duma resorted to attempting to use of this form of control. The issue of confidence to the Government was raised in October 1994, in June and July 1995, but legally significant consequences for the Parliament or the Government such initiatives did not have. Ref., e.g.: Resolution of the State Duma of March 10, 1995 No. 569-I HD «On the Minister of Internal Affairs of the Russian Federation V.F. Erin».

Chapter VII. Parliamentary Control

The power of the representative (legislative) bodies of the regions of the Russian Federation on the decision-making of no confidence to senior official of the region of the Russian Federation is determined by the Federal Law «On the General Principles of Organization of Legislative (Representative) and Executive Bodies of the Regions of the Russian Federation». The Law establishes the limiting list of grounds for the use of such power: 1) the issue of acts contrary to the Constitution of the Russian Federation, federal laws, constitutions (charters) and laws of the regions of the Russian Federation, in the case where such contradictions are found by a court, and the senior official of the region of the Russian Federation does not rectify them within one month from the date of entry into force of the judgment; 2) other flagrant violation of a federal law, the constitution (charter) and laws of the Russian Federation that results in wide-scale violation of human rights and freedoms found by a court; 3) improper performance of their duties. The decision of no confidence to the senior official of the region of the Russian Federation is initiated by at least one third and adopted by two thirds of the votes of the established number of deputies. The decision of no confidence to the senior official adopted by the legislative body is submitted to the President of the Russian Federation, as he is empowered to take the final decision on the removal of the official concerned from his post. The rules of the federal legislation governing the authority of the Parliament of the region of the Russian Federation on the decision of no confidence to the senior official of the Russian Federation are reproduced in the constitutions (charters) of regions of the Russian Federation. In some regions of the Russian Federation the special laws regulating the procedure of expression of no confidence to the officials are adopted 1. Note that in practice of the regions of the Russian Federation there are not so many cases of the expression of no confidence to the appropriate officials2. 1



2



Thus, in the Sakhalin region acts the Law of July 6, 2004 No. 522 «On the Procedure of the Expression of no Confidence to the Governor of the Sakhalin Region of the Regional Duma of Sakhalin». The Law of Altai region of December 31, 1997 No. 76-ZS «On the Procedure of no Confidence to Officials of the Executive Branch of Altai Region» defines that the basis for initiating this procedure is the loss by the appropriate officials — heads of executive authorities of the region — the trust of Deputies of the Legislative Assembly of the Altai Territory. The proposal of no confidence expression is initiated by the deputies numbering not less than one-fifth of the established number. The decision is made by majority of votes. The decision is sent within ten days to the senior official, who has the right to disagree with the decision of no confidence or remove the official to whom no confidence was expressed. For example, in 2005 the National Assembly — El Kurultai of the Altai Republic when making a decision of no confidence to the head of the Republic did not get enough votes. Ref.: Resolution of the State Council — El Kurultai of the Altai Republic of March 31, 293

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The dismissal of the President of the Russian Federation from the office, to a certain extent, is related to the implementation of the control function by the Parliament, even though the Federal Law «On the Parliamentary Control» does not provide such form of parliamentary control. As in the case of expression of confidence to the Government, the Constitution sets forth strict procedural rules of dismissal from the President’s office. In accordance sub. «e» p. 1, Art. 102 and Art. 93 of the Constitution of the Russian Federation, the President may be impeached by the Council of the Federation only on the basis of the charges of high treason or another grave crime, advanced by the State Duma and confirmed by the conclusion of the Supreme Court of the Russian Federation on the presence of the elements of crime in the actions of the President of the Russian Federation and by the conclusion of the Constitution Court of the Russian Federation confirming that the rules of advancing the charges were observed1. Such forms of parliamentary control as questions to the Government, conducting of the «government hour», approval of the government reports, inquiries (parliamentary and deputative), the activities of the bodies of the Parliament’s Chambers and parliamentary hearings are the most frequently used. The questions to the Government of the Russian Federation. «Government Hour». Under the provisions of the Federal Law «On the Status of a Member of the Council of Federation and the Status of the Deputy of the State Duma of the Federal Assembly of the Russian Federation» (sub. «g» p. 1, Art. 7, p. 2, Art. 15), the Federal law «On the Parliamentary Control» (Art. 7), the members of the Council of Federation and deputies of the State Duma have the right to ask the members of the Government questions at the session of the respective Chamber, and members of the Government are obliged to answer them. The Federal Constitutional Law of December 17, 1997 No. 2-FKZ «On the Government of the Russian Federation» (Art. 38) establishes the obligation of the members of the Government to be present at the invitation of

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2005 No. 28-10; Resolution of People’s Hural (Parliament) of the Republic of Kalmykia of January 12, 1999 No. 50-II «On the Expression of no Confidence to the Government of the Republic of Kalmykia»; Resolution of the Ivanovo Regional Duma of September 22, 2006 No. 299 «On the Expression of no Confidence to the Chief of IAD of Ivanovsky Region Major General of Militia A.Yu. Zabegalov». In the practice of the State Duma were two attempts to start the procedure for dismissal of the President of the Russian Federation from office. In 1995, a proposal to establish a special committee in connection with the events in Budennovsk during the war actions in the Chechen Republic has not received the necessary 226 votes for a decision adoption. In the State Duma of the second convocation, a procedure for dismissal of the President of the Russian Federation from office was initiated by the opposition and reached the voting in the Chamber on the bringing of charge that was held on May 15, 1999. However, none of the five clauses of the charge has received in the State Duma of the needed two-thirds votes for continuation of the procedure.

Chapter VII. Parliamentary Control

the Chambers of the Federal Assembly at their meetings and answer questions from members of the Council of Federation and the State Duma deputies in the manner determined by the Regulations of the Chambers. At the meetings of the Chambers of the Parliament for the purposes of obtaining information on matters of an extraordinary nature, Chairman of the Government of the Russian Federation and his deputies, Prosecutor General of the Russian Federation, Chairman of the Central Bank of the Russian Federation and other officials (Art. 5 of the Federal Law «On the Parliamentary Control») may be heard. The laws do not prohibit asking questions to the officials at any meeting of the Chamber of the Federal Assembly, in which they are present, but the Regulations of the Chambers have to provide the specified periods to answer the officials — «government hour». In the regions of the Russian Federation, the «government hour» as a form of the parliamentary control is practiced. For example, the Regulation of Moscow Regional Duma provides the conduction of «government hour of Moscow Region» in order to obtain from the appropriate officials of the information necessary for the implementation of parliamentary activities. The conduction of «government hour» at least once a month is determined by the Regulation of Parliament of the Republic of Kabardino-Balkaria. The Regulation of the Legislative Assembly of Vologda Region includes the provision of information on the «government hour», as a rule, by the Governor of the Region. The reports of the Government of the Russian Federation. The Constitution of the Russian Federation (sub. «a» p. 1, Art. 114), the Federal Constitutional Law «On the Government of the Russian Federation» (p. 10 Art. 36) provides the duty of the Government to report to the State Duma on the execution of budget. The Parliament exercises the control in the sphere of fiscal relations — preliminary financial control, current financial control and the subsequent financial control. As part of the preliminary parliamentary control in accordance with Art. 11 of the Federal Law «On the Parliamentary Control» the discussion of the drafts of the main directions of budgetary and tax policy of the Russian Federation is held; the draft state programs of the Russian Federation are considered; the law on the federal budget for the next fiscal year is discussed, reviewed and approved. The current financial control is exercised by the Parliament during the consideration of specific issues of budget execution at the meetings of committees, commissions, working groups of the Chambers of the Parliament, within the procedure of the parliamentary hearings and the «government hour», as well as in connection with the parliamentary and deputy inquiries. 295

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The subsequent financial control is carried out through the procedure of the review and approval of the budget execution report. The budget execution report is submitted to the Federal Assembly in the form of a draft federal law. Prior to the consideration of the budget execution report the Parliament shall hold the external audit of the said report. The relevant supervisory bodies of the Parliament carry out external review of the budget execution report. The budget execution report is accompanied by the presentation of a set of documents and materials to the State Duma: a report on the flow and use of oil and gas revenues of the federal budget, formation and use of the funds of Reserve Fund and National Welfare Fund and others. Following the consideration of the budget execution report and the conclusion of the Accounts Chamber of the Russian Federation the State Duma one of the following decisions shall be adopted: on the approval of the federal budget execution report1; on the rejection of the federal budget execution report. The powers to approve the annual budget execution report by the legislative (representative) body of region of the Russian Federation are provided by the Budget Code of the Russian Federation, the Federal Law «On the General Principles of Organization of Legislative (Representative) and Executive Bodies of the Regions of the Russian Federation». The procedure of submission, review and approval of the annual budget execution report is directly established by the legislative body on the base of the norms of federal legislation 2. Following the results of consideration of the budget execution report of the city, a decision on adoption or rejection of the law of the region of the Russian Federation on the budget execution for the corresponding year shall be made3. In some regions of the Russian Federation the conduction of the public hearings in adopting the draft law on the budget execution is legislatively established4. 1



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Ref. e.g.: Federal law of October 2, 2012 No. 151-FZ «On the Execution of the Federal Budget for 2011». Thus, in accordance with the Law of Moscow of September 10, 2008 No. 39 «On the Budgetary System and Budgetary Process in Moscow» of the consideration of the law of Moscow on the budget execution of the city is carried out in the presence of the conclusion of the Accounts Chamber of Moscow on the results of external audit report . When considering the execution of the annual report are heard the reports of the Head of the financial body of Moscow; the structural unit of Moscow City Duma, to which functions are referred the questions of budget legislation; the Chairman of the Chamber of Control and Accounts of Moscow Ref. e.g.: Law of Moscow of July 11, 2012 No. 40 «On the Execution of the Budget of Moscow in 2011». Ref. e.g.: Law of Moscow region of September 19, 2007 No. 151/2007-OZ, «On the Budget Process in Moscow Region»; the Law of the Republic of Adygea of April 8, 2008 No. 161 «On the Budget Process in the Republic of Adygea»; the Law of the Chuvash

Chapter VII. Parliamentary Control

Comments, suggestions and amendments, obtained in the course of hearing, are of advisory nature. In St. Petersburg, the conduction of public hearings in adopting a draft budget law and a draft law on the budget execution is governed by a special law1. The Constitution of the Russian Federation provides the obligation of the Government of the Russian Federation to annually submit the reports on the results of activities to the State Duma, including on the issues raised by the State Duma (Art. 103 and 114). The list of questions is formed by factions and the Duma Council in advance and is sent to the Government. The government report on the results of the activities shall be heard during the spring session. The Chairman of the Government shall present it2. The deputies have the right to ask questions to the Chairman of the Government, to express their opinion on his activities. Following consideration of the annual report on the results of activities of the Government of the Russian Federation, the State Duma has the right to adopt a Resolution. The power of legislative body of the region of the Russian Federation to hear the annual reports of the senior official of the region of the Russian Federation on the results of his activities is provided by Art. 5 of the Federal Law «On the General Principles of Organization of Legislative (Representative) and Executive Bodies of the Regions of the Russian Federation». The procedure for consideration of reports is established by the regions of the Russian Federation themselves. For example, the Regulation of the National Assembly — El Kurultai of the Altai Republic3 provides the hearing of the report on the activities of the head of the Altai Republic in the second quarter of the year following the reporting one.

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Republic of July 23, 2001 No. 36 «On the Regulation of Budgetary Relations in the Chuvash Republic»; the Law of the Irkutsk Region of July 23, 2008 No. 55-OZ «On the Budget Process of the Irkutsk Region» and others. Statutory law of the Krasnoyarsk Territory of June 18, 2009 No. 8-3419 «On the Public Hearings at the Legislative Assembly of the Krasnoyarsk Territory» defines, among others, the procedures of public hearings on the draft law on the annual regional budget execution. The Regulations of the National Assembly (Il Tyumen) of the Sakha Republic (Yakutia), providing the holding of public hearings on the draft law on approving the annual report on the state budget of the Republic of Sakha (Yakutia), establishes the following forms of these hearings, «government hours»; the extended meeting of the National Assembly (Il Tyumen) of the Budget, finance, tax and pricing policies; broadcasters programs. Law of St. Petersburg of June 4, 2007 No. 221-41 «On the Procedure of Public Hearings on the Draft Budget of St. Petersburg and the Draft Annual Report on the Budget of St. Petersburg». Ref. e.g.: Report on the activities results of the Government of the Russian Federation in 2011. Moscow, 2012. The Resolution of the National Assembly — El Kurultai of the Altai Republic of May 31, 2006 No. 3-3. 297

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This report precedes the preparation of questions submitted by the deputies to the head of the Republic. At a meeting of the National Assembly the report of the head of the Republic is heard, the questions on the report are asked. Following consideration of the report the resolution is adopted. The legislation of the regions of the Russian Federation also contains the other forms of accountability of the executive bodies to the Parliament1. The parliamentary control over the issuance of normative legal acts by the Government of the Russian Federation. In order to ensure the compliance with the established terms of adoption of normative legal acts by the Government and federal executive bodies, development and adoption of which is stipulated by the federal laws, Art. 6 of the Federal law «On the parlia1



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For example, the Regulations of the People’s Assembly of the Republic of Ingushetia provides the right of this representative body to initiate the issue of hearing the report of the Government of the Republic on the implementation of national laws. Regulations of the State Council of the Udmurt Republic obliges the public authority on implementation of the anti-corruption policy of the Udmurt Republic to report annually on the status of measures to combat corrupt practices and implementing of anti-corruption policy. In the Perm Territory is practiced the hearing of reports of the officials on the implementation of the regional laws (Art. 20 of the Rules of the Legislative Assembly of the Perm Region, approved by the Resolution of the Legislative Assembly of the Perm Territory of February 1, 2007 No. 41). The Regional Duma of Tyumen exercises parliamentary control over the implementation of legislative acts adopted by it, in addition to other known forms, and through the creation of special working groups to study the work practices on the execution of the laws of the area (ref. the Resolution of the Regional Duma of Tyumen of February 14, 2008 No. 604 «On the Regulation of the Regional Duma of Tyumen). In Kabardino-Balkaria Republic in the exercise of parliamentary control over the implementation and enforcement of national laws can be carried out such activities as production under special control of the compliance and enforcement of the relevant republican law; establishment of a working group on preparation of materials for the implementation of parliamentary control over the observance and enforcement of laws; hearing the information of the relevant officials on compliance and enforcement of the law at the meetings of Parliament, etc. In Bashkortostan Republic was adopted a special law of November 1, 2011 No. 457-p «On the Control of the National Assembly — Kurultai of the Republic of Bashkortostan for the Execution of the Laws of the Republic of Bashkortostan». Among the tasks carried out by the Parliament is the assessment of the social and economic efficiency of the adopted laws; ensuring completeness of legal regulation; identifying and addressing the causes that prevent the proper and effective implementation of national laws. The results of ongoing monitoring shall be published in the media. A similar law applies in the Saratov region — the Law of the Saratov Region of September 27, 2011 No. 128-ZSО «On the Implementation by the Regional Duma of Saratov of Control Over the Execution of the Laws of the Saratov Region». In the Republic of Tatarstan, the activities on the collection, analysis, synthesis and evaluation of information on the implementation of national laws is regulated by the Law of July 3, 2010 No. 49-ZRT «On the Monitoring of the Laws of the Republic of Tatarstan».

Chapter VII. Parliamentary Control

mentary control» establishes the rules governing the execution of the parliamentary control over the issuance of such acts. The Regulations of the Chambers directly define the procedure of execution of parliamentary control in this sphere. However, the said Federal Law establishes the duty of the Government of the Russian Federation to submit on a quarterly basis to the Chambers of the Parliament the information on the progress and terms of adoption of the normative legal acts stipulated by the federal laws. The parliamentary inquiry. Such a collective form of parliamentary control as a parliamentary inquiry comes into widespread acceptance. At this, the scope of subjects, to whom such an inquiry can be submitted, is also quite wide1 (Art. 13 of the Federal Law «On the Status of a Member of the Council of Federation and the State Duma of the Federal Assembly of the Russian Federation»). The State Duma and the members of the Council of Federation initiate the parliamentary inquiry. The content of the inquiry is considered at the meeting of the Chamber and in the case of approval of the proposal on the inquiry by a majority of votes of all members or deputies of the respective Chamber, it is formalized by the resolution of the Chamber. The parliamentary inquiry requires the official to whom it is submitted, not later than within 15 days or another prescribed period to give oral or written answer to the raised questions. At this, the person to whom the request is addressed, or the person who is temporarily in charge shall sign this answer. In the practice of the State Duma, the question on both the nonobservance of a 15-day period and the procedure of signing the answers to parliamentary questions by officials was arisen. For example, during the period of work of the State Duma of the fourth convocation from among of 25 responses to parliamentary inquiries, addressed to the Chairman, 19 came out of time; furthermore, the Chairman of the Government signed directly only eight answers2. The range of issues put by the Chambers of the Federal Assembly in the parliamentary inquiries is wide. Thus, the Council of Federation sent the inquiries: on the delivery of medical care to children suffering from serious diseases3, on the development of normative legal acts in the sphere of protection of cultural heritage of the peoples of the Russian Federation4; on the social support of orphaned chil1 2



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For details, see § 2 of Chapter IV of this book. The Resolution of the State Duma of the FA Russian Federation (the Fedral Assembly of the Russian Federation) of October 21, 2005 No. 2318-IV HD. The Resolution of the Council of Federation of the FA Russian Federation of November 15, 2006 No. 362-SF. The Resolution of the Council of Federation of June 18, 2008 No. 221-SF. 299

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dren and children left without parental care, insofar as it refers to the provision of housing1; on signing and ratification by the Russian Federation of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography2, to the Convention on the Rights of the Child and others. The subject of the parliamentary inquiries of the State Duma is also quite extensive. Many of them are taken on issues received the public attention. Thus, the State Duma submitted an inquiry to the Chairman of the Government of the Russian Federation on the adoption of urgent measures to protect the rights and legitimate interests of children-citizens of the Russian Federation at their adoption by the foreign citizens3. Many inquiries are aimed at obtaining information on the implementation of legislation and measures taken to solve the specific social and economic problems. For example, the State Duma has sent the inquiries on the question of export and import of cultural values4, on the inspection of observance of the rights of citizens in the sphere of turnover of shares in the common ownership of the agricultural lands5, on the establishment of «Insurance company AIZHK» and the activity of OJSC «Housing Mortgage Finance Agency»6 and others. The parliamentary inquiries as a form of parliamentary control are used in the regions of the Russian Federation7. In the Karachai-Cherkess Republic the procedure of introduction and consideration of parliamentary and deputy inquiries is governed by a special law of December 19, 2005 No. 102-RZ «On the Deputy and Parliamentary Inquiries». According to the said law, a parliamentary inquiry is a particular form of address of the Parliament to the officials of this region of the Russian 1



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The Resolution of the Council of Federation of the FA Russian Federation of December 25, 2009 No. 554-SF. The Resolution of the Council of Federation of the FA Russian Federation of December 27, 2011 No. 571-SF . The Resolution of the State Duma of the FA Russian Federation of September 9, 2005 No. 2175-IV HD. The Resolution of the State Duma of the FA Russian Federation of May 23, 2008 No. 558-5 HD. The Resolution of the State Duma of the FA Russian Federation of March 27, 2009 No. 1888-5 HD. The Resolution of the State Duma of the FA Russian Federation of March 17, 2010 No. 3352-5 HD. For example, the Regulations of the People’s Hural (Parliament) of the Republic of Kalmykia, the People’s Assembly (Il Tumen) of the Sakha Republic (Yakutia) State Assembly — Kurultai of the Republic of Bashkortostan established a similar procedure for the implementation of the federal parliamentary inquiry.

Chapter VII. Parliamentary Control

Federation or to the bodies located in the territory of the Republic, on the provision of the information on matters within the competence of the addressees. The law obliges the official, after receiving an inquiry, to answer it not later than 10 days from the date of its receipt. The problematics raised in a parliamentary inquiries of the Parliaments of the regions of the Russian Federation, includes the issues of social and economic nature or problems requiring urgent solutions at the level of the state authorities of the regions of the Russian Federation1. The deputy inquiry. If a parliamentary inquiry is a collective form of parliamentary control, then the deputy inquiry is submitted by the parliamentarians on their own and does not require its announcement at a meeting of the Chamber. The inquiry of the parliamentarians of the Federal Assembly can be submitted to the members of the Government of the Russian Federation, the Prosecutor General of the Russian Federation, the Chairman of the Central Bank of the Russian Federation, the Chairman of the Central Election Commission of the Russian Federation, heads of other federal state bodies, state bodies of the subjects of the Russian Federation, local authorities and the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund of the Russian Federation on matters within the competence of these bodies and officials. The official who is queried shall give an answer within 30 days, or another agreed with the author of the inquiry date. The scope of issues put by the parliamentarians in inquiries is very wide. This form of parliamentary control is quite common. Just as in the case of parliamentary inquiries, the terms of consideration of parliamentary inquiries are often violated. Thus, for the period of engagement of the State Duma of the fourth convocation 7635 deputy inquiries were submitted to the heads of federal authorities, 7339 deputy inquiries were answered. Among them 5572 answers came in due time and the rest — in violation of the terms. A number of deputy inquiries has not been answered in due procedure2.

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For example, in the parliamentary inquiries of the State Assembly (Il Tyumen) of the Sakha Republic (Yakutia) were raised the issues of public-private partnership development in the construction of socially significant objects (Resolution of the State Assembly (Il Tyumen) of the Republic of Sakha (Yakutia) of April 26, 2007 No. 2207-III); in the Parliament of the Kabardino-Balkar Republic — the state support of agricultural producers due to adverse weather conditions (the decision of the Parliament of the Kabardino-Balkaria Republic of June 28, 2007 No. 1179- P). Ref.: The Resolution of the State Duma of October 21, 2005 No. 2318-IV HD. 301

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In the regions of the Russian Federation, the practice of forwarding deputy inquiries is sufficiently prevalent1. The Law of the Kabardino-Balkar Republic «On the Parliament of the Kabardino-Balkar Republic» defines the deputy inquiry as a form of appeal of the deputy (groups of deputies) of the Parliament on the provision of information on the issues of private nature of social and economic importance. In the legislation of certain regions of the Russian Federation deputy appeal and deputy inquiry are differed. Thus, the Law of the Tomsk Region of March 7, 2002 No. 10-OZ «On the Status of Deputy of the Legislative Duma of the Tomsk Region» establishes that the appeal of the deputy of the Legislative Duma to the heads and other officials of state authorities on matters relating of reference of this Parliament and falling within the authority of specified bodies and officials, is a deputy appeal. If a deputy appeal put at the Duma’s consideration and relates to a violation of the current legislation or raises issues of public importance, it can be recognized by it as a deputy inquiry. Such an inquiry is made on a special letterhead. The answer to the inquiry is announced at the meeting. The activities of the committees and commissions of the Chambers. One of the forms of the work of the Parliament is its activities in committees and commissions. The control powers of the committees of the federal Parliament are manifested in the preparation of inquiries to the Constitutional Court in accordance with the decision of the Chamber, organization of the parliamentary hearings. The Regulation of the State Duma provides the power to submit conclusions and suggestions on the sections of the draft federal budget. An important control competence is the ability to direct the written requests by the committee, commission of the Chamber of the Federal Assembly on issues for its introduction to the Government of the Russian Federation, federal executive bodies. Article 40 of the Federal Constitutional Law «On the Government of the Russian Federation» states that, the members of the Government and heads of federal executive bodies report to the relevant committees and commissions on the results of consideration of the written appeals from the committees and commissions of the Chambers of the Federal Assembly and taken measures in agreed with them terms. In addition, the Regulations set forth the right of committees, commissions to request information and 1



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The Regulations of the Regional Duma of Tyumen determines that a deputy has the right at the meeting of the Duma to raise the issue of sending of deputy’s inquiry to the governor and other officials to obtain additional information and clarification on violations of the laws of the region and other issues relating to the conduction of the Duma. The proposal supported by the majority of the votes shall be recognized by the deputy inquiry (The Resolution of the Regional Duma of Tyumen of February 14, 2008 No. 604).

Chapter VII. Parliamentary Control

documents necessary for the activities of the relevant bodies of the Chambers, public bodies and officials. However, the legislation does not impose a corresponding obligation of the federal executive bodies and officials1. P.2 of Art. 17 of the Federal Law «On the Status of a Member of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation» only refers to the immediate response of officials and their submission of requested documents and information on the appeal of the members of the Council of Federation and deputies of the State Duma. This may create some difficulties in the implementation of an effective parliamentary activity. In order to eliminate this gap, it is proposed to amend the named federal laws and regulations of the Chambers2. The regulations of the Chambers also confirm that at the meetings of the committees and commissions the experts as well as the representatives of the relevant state bodies may be invited. In the parliaments of the regions of the Russian Federation, the committees as permanent bodies also play a special role in the execution of control powers3. For example, the Regulation of the Parliament of the Karachai-Cherkess Republic establishes special powers in respect of committees to control over the implementation and enforcement of republican laws. Thus, the committees submit the proposals to monitor the laws of the Republic of Kabardino-Balkaria for the Parliament’s consideration consider at their meetings the issues relating to the compliance and implementation of laws, develop proposals and recommendations for legal entities to eliminate the detected violations. They are entitled to establish working groups and hold the offsite meeting in order to consider the matters on compliance and implementation of republican laws. The parliamentary hearings. The parliamentary hearings are held at the initiative of the committees and commissions of the Chambers, deputy as1



2



3

Ref.: Modern Parliament: theory, world experience, Russian practice: Textbook / General editing O.N. Bulakov. Moscow, 2005. 107 p. In the same. P. 107. The law of the Republic of Mordovia «On Supervisory Powers of the State Council of the Republic of Mordovia» entrusts the organization and conduction of activities related to monitoring compliance with and enforcement of laws of the Republic, on the committees of the National Assembly. Law of the Republic of Tatarstan «On the Monitoring of the Laws of the Republic of Tatarstan» for the effective implementation of the committees powers in monitoring national law authorizes the Committee to be sent to the territorial bodies of the federal authorities, state authorities of the Republic of Tatarstan, local governments, the organization requests the implementation of the Law of the Republic of Tatarstan and initiate parliamentary hearings, meetings, conferences, seminars and other activities aimed at the study of the corresponding issue. 303

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sociations, Council of the State Duma. Fulfilling the role of feedback to the public, the parliamentary hearings are also a tool of parliamentary control. In 2012, 15 parliamentary hearings were held in the Council of Federation. The main topic is the analysis of the situation and development of a strategy for the development of various spheres of society, discussion of draft federal laws. The priority among the issues discussed in 2012 were economic policy, anti-corruption, social sphere. Here are the topics of hearings: «The participation of the institutes of civil society in the implementation of state policy in the sphere of combating corruption», «On the improvement of mechanisms of public control and public expertise», «On the concept of the formation of the National Plan (Strategy) of actions for children of the Russian Federation», «Cultural and educational institutions: problems and prospects», and others were held. The parliamentary hearings are a common form of parliamentary control in the regions of the Russian Federation. During their conduction the deputies of the parliaments and invited persons can discuss the draft laws that require public discussion, the draft laws on the budget of the region of the Russian Federation and on the budget execution, programs of social and economic development of the regions of the Russian Federation and other important issues of public life1. In the Udmurt Republic and some other regions of the Russian Federation,2 the parliamentary hearings are held3. The initiators of their conduction may be the permanent committees, deputies factions and deputy associations (the Udmurt Republic), the Chairman of the Parliament, his deputies and the permanent committees (the Krasnodar Region). Issues discussed at the deputy hearings are similar to the federal parliamentary hearings. Such hearings are usually open to the media and public. 1



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For example, at the parliamentary hearings in the National Assembly — Kurultai of Bashkortostan were discussed the prospects of development of Health of the Republic of Bashkortostan in modern conditions; practice of implementing of anti-corruption legislation in the Republic (ref. Regulation of the National Assembly — Kurultai of the Republic of Bashkortostan of October 20, 2011 No. HS-2038). In the Legislative Assembly of the Republic of Karelia during the parliamentary hearings, the problems of the forest sector of the Republic and the ways of their decision (Resolution of the Legislative Assembly of the Republic of Karelia of May 25, 2012 No. 254-V ZS). Issues of alcohol factor in the demographic crisis of the Zabaikalye territory were the subject of parliamentary hearings of the Legislative Assembly of the Zabaikalye Territory (Resolution of the Legislative Assembly of the Trans-Baikal Territory of June 24, 2009 No. 270). Ref., e.g.: Rules of the Legislative Assembly of the Krasnodar Territory, approved by the Resolution of the Legislative Assembly of Krasnodar Territory of May 25, 2011 No. 25-72 p. The Regulation of the State Council of the Udmurt Republic (Art. 85).

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In addition to these forms of parliamentary control the direction of the representatives of the Chambers of the Federal Assembly to the organizations, created by the Russian Federation on the basis of federal laws1, and their recall of these organizations are also practiced. The law requires the members of the control councils of such organizations, which are members of the Chambers of the Parliament, to make annual report on their activities at the meetings of the specialized committees of the respective Chambers of the Federal Assembly. As a result of control the Federal Assembly, its Chambers cannot annul the legal acts contrary to the law, but they have the right to empower the committee and the commission of the Chamber of the Parliament to develop an appropriate draft law for its introduction to the State Duma (Art. 15 of the Federal Law in the prescribed manner «On the Parliamentary Control»). In case of detection of violations of federal legislation, the Chambers of the Russian Parliament may direct to the relevant authorities and officials the proposals to take measures on their elimination. The Chambers within their competence has the right to appeal to the prosecuting authorities of the Russian Federation and the Investigative Committee of the Russian Federation on the results of the control measures. The Federal Law «On the Parliamentary Control» requires state bodies, local governments and officials to consider the proposals of the Chambers of the Federal Assembly, and to inform the relevant Chamber of the Parliament on the results of consideration in due time. § 3. The specialized bodies of parliamentary control

The specialized commissions of the Chambers. The functioning of specialized bodies of the Parliament, aimed at investigating of specific violations of rights and freedoms of man and civil rights, causes and consequences of emergencies is one of the forms of execution of parliamentary control. For example, the Parliamentary commission to investigate the causes and circumstances of the terrorist act of September 1–3, 2004 in Beslan of the Republic of North Ossetia-Alania was created by the Resolution of the 1



For example, in accordance with the Federal Law of March 26, 2003 No. 35-FZ «On the Electric Power Industry» (Art. 33) is established the Council of the market (non-profit organization, formed in the form of non-profit partnership and uniting on the basis of membership of electric power industry and large electricity consumers ), the Supervisory Board of which includes the representatives appointed from among the members of the Council of Federation, deputies of the State Duma. 305

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Council of Federation of September 20, 2004 No. 289-SF and the State Duma of September 23, 2004 No. 956-IV-HD 1. The purpose of the activities of this commission was the investigation of the tragic events in Beslan, on which the Parliament, the most important state body is bound to respond. The parliamentary commission was established according to the authority of the Council of Federation to establish a commission on solving a specific problem and (or) for a specified period. It included the representatives of the other Chamber. The activities of such commissions are similar to the activities of the investigative and audit commissions and committees, known to the world practice of the parliamentarism, and represents itself a parliamentary investigation2. This form of parliamentary control is used in many countries. The history of the parliamentarism knows cases where investigations conducted by the Parliament had a significant influence on the political processes in the country3. The Federal Law «On the Parliamentary Investigation of the Federal Assembly of the Russian Federation» has given a new impulse to the development of this form of parliamentary control, defined the bases and principles of parliamentary investigation, the procedure of decision-making to initiate a parliamentary investigation and establishment of a special commission, powers of the commission and other issues that contribute to the effective conduct of the parliamentary investigations. According to this Federal Law the issues subject to parliamentary investigation are: facts of gross and massive violations of guaranteed by the Constitution of the Russian Federation rights and freedoms of man and citizen; the circumstances related to the occurrence of technogenic emergencies; the circumstances connected with the negative effects of emergencies of natural and technogenic character. At the same time, the subject matter of the investigation cannot be the establishment of the guilt of specific individuals — it is the prerogative of the judicial bodies. The initiative to open a parliamentary investigation belongs to the group of members of the Council of Federation and deputies of the State Duma numbering not less than one-fifth of the total number of parliamentarians of the corresponded Chamber. A proposal of the High Commissioner for Human Rights in the Russian Federation on the establishment of a parliamentary commission to investigate the violations of the rights and freedoms of man and citizen could serve as a initiative. 1



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The collection of laws of the Russian Federation. 2004. No. 39. Art. 3835, 3838. Ref. also: N.S.Volkova. Parliamentary control. In the book: Basics of parliamentary law: scientific and practical guide. Moscow, 2006. 233 p. For example, the results of the activities of the investigative committee of the Senator S. Erwin became the basis for the resignation of the President R. Nixon.

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The resolution on support of the initiative of the execution of parliamentary investigation (the proposal to establish a commission) adopted by the Chamber is immediately sent to the other Chamber, which within 15 days shall consider this issue. If the second Chamber has not supported the initiative to hold a parliamentary investigation (not decided to initiate a parliamentary investigation), then the investigation is not carried out. A commission that is formed on a parity basis by both Chambers of the Parliament shall be established to conduct a parliamentary investigation. According to the results of the carried out investigation, the commission provides the Federal Assembly with the final report, which contains the conclusions of the Commission on the facts and circumstances investigated by it, and may contain proposals to dismiss from the office of persons, whose actions or inactions led to the occurrence of investigated facts and circumstances. The final report is approved by the Chambers and sent to the President of the Russian Federation, Government of the Russian Federation. It is published in the media, after the investigation is considered as complete1. The analysis of the Law shows that a parliamentary investigation and its results are substantively formal assessment of events and facts that have received public resonance. This is a special kind of investigation other than that which is carried out in law enforcement or in the course of court proceedings. However, as rightly pointed out in the legal literature, any investigation is purposeful activity to identify, collect, process and clarify some facts of reality, events2, phenomena, and in this sense the use of «law enforcement» terminology is objectively. The specificity of the parliamentary investigation lies in the goal-oriented nature of investigative measures (performance of control function by the Parliament), the presence of the legally formalized exhaustive list of grounds for initiation of a parliamentary inquiry and complicated procedure of such a decision, the specifics of the procedure of a parliamentary investigation (establishment of a special commission in the manner prescribed by the Law, the identification of capacities of the commission, the definition of deadlines for the commission’s activities, and others), covering the results of the conducted parliamentary investigation. Since the adoption of the Federal Law «On Parliamentary Investigation of the Federal Assembly of the Russian Federation», such an inquiry was 1



2



Ref.: T.Y. Khabrieva. Commentary on Art. 101 of the Constitution of the Russian Federation. In the book: Commentary on the Constitution of the Russian Federation (itemized). 2nd ed. rev. / Editor-in-Chief V.D. Zorkin. Moscow, 2011. Ref.: A.P. Zrelov, M.V. Krasnov. On the introduction of the institute of parliamentary investigation in the Russian Federation // Law and Politics. 2003. No. 10. 41 p. 307

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initiated in connection with the technogenic emergencies at the Sayano-Shushenskaya hydropower station on August 17, 20091. At the initiative of the State Duma, supported by the Council of Federation, a commission, composed of the representatives of both Chambers was established. The final report of the commission was presented at the meetings of the Chambers2 and sent to the President of the Russian Federation, Government of the Russian Federation and the Prosecutor General of the Russian Federation. The report was also published in the media and posted on the Internet. In addition to the parliamentary investigation the Federal Law «On the Parliamentary Control» (Art. 12) provides the possibility for the participation of representatives of the Chambers of the Federal Assembly in the work of the state commission to investigate the causes of extreme circumstances and liquidation of their consequences. the attraction of the representatives of Chambers of the Parliament to the work of a government commission is carried out by the decision of the Government of the Russian Federation. At this, the need to take the resolution of the respective Chamber on the direction of its representative to such a commission, as well as subsequent reports of the representative are provided. The legislation of the regions of the Russian Federation also provides such form of a parliamentary control, as a parliamentary investigation. In many regions of the Russian Federation there are special laws governing the procedure of conduction of the parliamentary (deputy) investigation3. The specialized control bodies, formed by the Federal Assembly. The Accounts Chamber of the Russian Federation, formed by the Federal Assembly, is a permanent supreme body of external state audit (control), and represents a specific form of parliamentary control. The Constitution of the Russian Federation defines the control over the federal budget execution as the main function of the Accounts Chamber. Developing the constitution1



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Ref.: The Resolution of the Council of Federation of the Federal Assembly of the Russian Federation of September 21, 2009 No. 324-SF. Ref.: The Resolution of the Council of Federation of Federal Assembly of the Russian Federation of December 25, 2009 No. 559-SF ; The Resolution of the State Duma of the Federal Assembly of the Russian Federation of December 25, 2009 No. 3068-5 HD. Ref. e.g.: The Regional Law of the Arkhangelsk region of February 13, 2012 No. 424-28-OZ «On the Deputy (Parliamentary) Investigation»; Law of the Republic of Dagestan of December 27, 2011 No. 93 «On the Parliamentary Investigation of the National Assembly of the Republic of Dagestan»; Law of the Kabardino-Balkaria Republic of June 20, 2008 No. 31-RZ «On the Parliamentary Investigation»; Law of the Karachai-Cherkess Republic of December 08, 2006 No. 100-RZ «On the Parliamentary Investigation of the People’s Assembly (Parliament) of the Karachai-Cherkess Republic»; Law of the Republic of North Ossetia — Alania of July 14, 2011 No. 26-RZ «On the Parliamentary Investigation», etc.

Chapter VII. Parliamentary Control

al provisions, the Federal Law «On the Accounts Chamber of the Russian Federation» provides the main objectives of this body: –– the organization and execution of control over intended and effective use of the federal budget resources, budgets of the state extra-budgetary funds; –– the audit of the feasibility and effectiveness of achieving strategic goals of social and economic development of the Russian Federation; –– the determination of the effectiveness and compliance with the legislation of the procedure of formation administration and disposal of federal and other resources; –– the analysis of detected shortcomings and development of proposals to their elimination, as well as on the improvement of the budget process as a whole within the competence; –– the determination of the reliability of the budgetary reporting of chief administrators of the federal budget resources and budgets of state extra-budgetary funds of the Russian Federation and the annual report on the federal budget execution, budgets of state extra-budgetary funds of the Russian Federation; –– the control over the legality and timeliness of transfer of the federal budget resources and resources of the state extra-budgetary funds in the Central Bank of the Russian Federation, authorized banks and other credit organization of the Russian Federation; –– the provision of anti-corruption measures, etc.. Within these objectives, the Federal Law «On the Accounts Chamber of the Russian Federation» empowers it such functions as: the execution of external state financial control in the sphere of budgetary legal relations; the examination of draft federal laws on the federal budget and budgets of state extra-budgetary funds of the Russian Federation for the next fiscal year and planning period; the execution of the external audit of the annual budgetary reporting of chief administrators of the federal budget resources, annual reports on the federal budget and the budget of the region of the Russian Federation within the prescribed limits; the examination of the budgets of the regions of the Russian Federation and local budgets — the recipients of inter-budgetary transfers from the federal budget; the conduction audit (control) and thematic reviews on the location of objects; the auditing in the sphere of procurement of goods, works and services carried out by the objects of the audit (controls); regular submission to the Chambers of the Federal Assembly of information on the results of conducted control and expert and analytical measures. The Accounts Chamber systematically analyzes the results of the conducted control measures, summarizes and studies the causes and consequences of the detected deviations and violations. Based on the obtained 309

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data the proposals for improving the budget legislation are developed and the development of the fiscal system of the Russian Federation and the proposals on the improvement of the legislation on matters within the competence of the Accounts Chamber are introduced to the Council of Federation and the State Duma. The control powers of the Accounts Chamber extend to all public authorities (including their machineries) and agencies in the Russian Federation, to the federal budget funds, local governments, as well as to other objects of control if they get, transfer, use funds from the federal budget or use the federal property or manage it, and have the tax, customs and other advantages and benefits provided by the federal legislation or federal authorities of state power. The Accounts Chamber issues submissions and regulations. After considering the results of the control measures the submissions are directed to the public authorities of the Russian Federation. The heads of the audited organizations should take measures to eliminate the detected violations, compensate damages caused to the state, and prosecute the officials guilty in violating the legislation of Russia or mismanaging that legislation. Submissions of the Accounts Chamber should be considered within the specified time or if no time is specified, within 30 days from the date of their introduction to the state bodies, another public body, or the object of the audit (control). The term of consideration of the submission may be extended by the decision of the Board of the Accounts Chamber, but not more than once. On the taken action on the results of consideration of the content submission, the Accounts Chamber shall be notified in writing. In the case of non-execution of the submissions of the Accounts Chamber, nonobservance of the time of their consideration, the Accounts Chamber has the right to give the administration of the audited organizations the mandatory instruction. In the case of non-fulfillment or improper fulfillment of the requirements of the Accounts Chamber, the Accounts Chamber Board may, in agreement with the State Duma decide to suspend all types of financial, payment and settlement transactions on the accounts of the audited enterprises, agencies and organizations. Having identified the budget violations, the Accounts Chamber submits to the body authorized in accordance with the legislation of the Russian Federation to make decisions on the execution of budgetary enforcement measures, notification on the application of budgetary measures of coercion. The Accounts Chamber has its own machinery (inspectors and other officials). The duties of inspectors of the Accounts Chamber include the direct organization and conduction of control within the competence of the Accounts Chamber. 310

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The report of the Accounts Chamber of 2012 states that in the reporting year 502 control, expert, and analytical activities were performed. Revealed violations in the financial and budgetary sphere of the Russian Federation made up at 10,722,100,000 roubles. 164 materials on the results of the taken control measures were sent to the Prosecutor General’s Office and other law enforcement agencies. According to the materials of the Accounts Chamber were initiated 78 criminal cases. In the regions of the Russian Federation, also control and accounting bodies is functioning — the permanent bodies of the external state financial control, formed by the parliaments of the regions and responsible to them. The basis for the formation of such bodies is the Federal Law of February 7, 2011 No. 6-FZ «On the General Principles of Organization and Operation of Control and Audit Bodies of the Regions of the Russian Federation and Municipalities» as well as the provisions of the constitutions (charters), providing the establishment of such bodies in the certain regions of the Russian Federation, where their own laws governing the status of control and audit bodies, are adopted1. Such bodies have different names: Accounts Chamber (the Republic of Buryatia, the Republic of Dagestan, the Republic of Mordovia, the Republic of Sakha (Yakutia), the Krasnoyarsk Region, the Vladimir Region, and others), Control and Accounts Chamber (the Chuvash Republic, the Kamchatka Region, Amur, Arkhangelsk, Bryansk, Irkutsk, Kaluga Regions, and others), State Accounts Chamber (Republic of Mari El). Among the major powers of control and accounts bodies of the regions of the Russian Federation are: the control over execution of the budget of the region of the Russian Federation and budget of territorial state extra-budgetary fund; examination of draft laws on budgets of the region of the Russian Federation and the draft laws on budgets of territorial state extra-budgetary fund; external audit of the annual report on the budget execution of the region of the Russian Federation, the annual report on the budget execution of the territorial state extra-budgetary fund; organization and control of the legality, productivity (efficiency and cost effectiveness) of the use of the budget resources of the region of the Russian Federation and other sources; control over observance of the established procedure for the administration and disposition of property of the region of the Russian 1



Ref. e.g.: the Law of Moscow of June 30, 2010 No. 30 «On the Chamber of Control and Accounts of Moscow»; the Law of St. Petersburg on July 13, 2011 No. 455-85 «On the Control and Accounts Chamber of St. Petersburg»; the Law of the Republic of Buryatia on May 5, 2011 No. 2087-IV «On the Accounts Chamber of the Republic of Buryatia»; the Law of the Republic of Mari El on January 3, 1997 No. 13-W, «On the State Audit Office of the Republic of Mari El», etc. 311

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Federation and others. The control and accounts bodies carry out control and expert and analytical activities. The requirements and demands of the officials of the Control and accounts bodies related to the exercise of their official powers, are binding for the execution of the state bodies of the subjects, other officials and organizations provided by the legislation. The High Commissioner for Human Rights in the Russian Federation. The institute of High Commissioner for Human Rights (Ombudsman) got its consolidation as a major public institution in the Constitution of the Russian Federation in 1993, the rules of which provide the adoption of the special federal constitutional law on the High Commissioner for Human Rights in the Russian Federation No. 1-FKZ, which was adopted on February 26, 1997. The High Commissioner in the exercise of his powers is independent and not subordinate to any state bodies and officials, which does not allow to explicitly referring him to the body of parliamentary control. At the same time, the participation in the formation of this body by one of the Chambers of the Federal Assembly, the exclusion from the consideration field of the High Commissioner on the decisions or actions (inactions) of the Chambers of the Federal Assembly and the legislative bodies of the regions of the Russian Federation, the right in the case of the serious or massive violations of rights and freedoms of the citizens to make a report at the next meeting of the State Duma, to submit to the State Duma with a proposal to create a parliamentary commission intended to investigate the violations of rights and freedoms of the citizens and hold the parliamentary hearings, and also, directly or through its representative participate in the work of that commission and conducted hearings, has the possibility on specific issues on compliance with the rights and freedoms of citizens in the Russian Federation to direct to the State Duma the special reports that goes to prove a definite relation of the High Commissioner for Human Rights with the control function of the Parliament. Their relationship is highlighted by the Federal Law «On Parliamentary Control», Art. 5 of which refers the interaction between the State Duma and the High Commissioner for Human Rights in the Russian Federation to the forms of parliamentary control. The activities of the High Commissioner for Human Rights is an additional mechanism to protective measures of the rights and freedoms of the citizens, does not cancel and does not involve the revision of the competence of the state bodies ensuring the protection and remedy of violated rights and freedoms. The High Commissioner for Human Rights considers complaints about decisions or action (inaction) of the state bodies, local authorities, officials, public officials, if the applicant appealed in respect to these decisions or 312

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actions (inactions) in a judicial or administrative procedure, but does not agree with the decisions taken on this complaint. The High Commissioner may also take on his own initiative, the appropriate measures within his own jurisdiction if there is an information on mass or gross violations of human rights and freedoms or in cases of particular public importance or in connection with the need to protect persons, who are unable to use legal remedies. The High Commissioner shall send to the state body, local authority or official, the decisions or actions (inactions) of which violate the rights and freedoms of citizens, his report containing recommendations on the possible and necessary measures for the remedy of those rights and freedoms. After considering a complaint the High Commissioner has a right to take legal action for the protection of the rights and freedoms (unlimited range of persons), as well as in person or through a representative to participate in the process prescribed by the law; apply to the court or prosecutor’s office with a request to verify an enforceable decision, verdict, resolution or decision of the court or the judge’s decision; apply to the Constitutional Court of the Russian Federation with the complaint of a violation of constitutional rights and freedoms of the citizens by the law applied or applicable in a particular case. At the end of the calendar year, the High Commissioner sends a report on his activities to the President of the Russian Federation, to the Council of Federation and the State Duma, the Government of the Russian Federation, the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Prosecutor General of the Russian Federation. In 2012, the High Commissioner received more than 52,000 of complaints, of which more than 24,000 are individual and collective complaints of violation of human rights and freedoms. The greatest number of complaints (more than half) concerned violations of personal (civil) rights and freedoms, the overwhelming majority were the complaints related to the violations of the right to the judicial protection and the fair trial. Following the results of consideration, the explanations and recommendations on the forms and methods of their further actions were directed to half of applicants. One third of the complaints were admitted to consideration by the High Commissioner. Seven percent of cases achieved full remedy of the rights of the applicants. In addition to annual reports on the state of human rights in Russia, the High Commissioner for Human Rights has prepared in 2003 a special report on the protection of rights of the victims of terrorist acts and other crimes, in 2004 — on the problems of improvement of the activity of the jury trials 313

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in modern Russia, in 2005 — on the observance of the rights of citizens in connection with active duty service commitment, in 2006 — on the human rights and modernization of the Russian education, on the observance of rights of disabled children in the Russian Federation, in 2008 — on the problems of protecting the rights of victims of crime and others. The post of the High Commissioner for Human Rights in the of the Russian Federation is established by the regions’ constitutional regulations or laws . The High Commissioners for Human Rights in the regions of the Russian Federation in exercising their powers are independent and not accountable to any state bodies and officials that provide evidence of conventionality of referring the High Commissioners to the bodies of the parliamentary control. However, a definite connection of this body with the parliament can be traced, because the parliament is involved in its formation. The purpose of the High Commissioner for Human Rights in the regions of the Russian Federation is the provision of state guarantees protection of rights and freedoms of the citizens, their observance and respect by the state bodies, local authorities and officials. The ground for the execution by the High Commissioner for the Human Rights of his competence is the consideration of the citizens’ complaints about decisions or actions (inaction) of the state bodies, the local authorities, the officials and the civil servants. In order to ensure the effectiveness of the activity, the legislation of the regions of the Russian Federation provides certain guarantees: a) unimpeded access to all state authorities of the regions of the Russian Federation; the opportunity to attend meetings of the collegial bodies; b) making inquiries and obtaining from the state bodies and their officials of the necessary information, documents and materials; c) obtaining of the relevant explanations of the officials and civil servants; d) conducting independently or in conjunction with the competent state bodies inspections of the state bodies, local authorities and officials, in respect to whom there is information about violations of human rights. The High Commissioners for Human Rights in the regions of the Russian Federation cooperate with the High Commissioners for Human Rights of the Russian Federation. The High Commissioners for Human Rights prepare annual reports on their activities. Thus, in the report of the High Commissioner for Human Rights in the Moscow region it was noted that in 2012 more than 13,000 appeals have been received. In the Perm Territory, the High Commissioner for the same period received more than 8,000 appeals. In such appeals the entire spectrum of the modern society problems and the violation of the rights and lawful interests of people, including the social and economic sphere is reflected. 314

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§ 1. Inter-parliamentary cooperation in the context of globalization

Currently, the states and international relations are under the powerful influence of phenomenon, that has received in science and journalism the generic notion of «globalization», the historical roots of which are understood by the different schools in different ways, but it does not prevent all of them to recognize its crucial role in determining the trends of the world development. There is no doubt that the globalization has an impact on the development of inter-parliamentary cooperation, which looks toward to meet the challenges of the modern world. In the scientific works of the scientists from different countries of the world and, consequently, there are different schools which have the more or less intimate understanding of globalization as a stage of civilization — it is a worldwide process of connecting the national socio-economic institutions into a single world economic and social system. Social, economic and political activities have assumed such a scale that events in one part of the world can have a direct bearing on separate persons and their associations in other parts of the global system1. Hence, it follows that globalization should be understood as an objective of social and economic phenomenon, which originated in the last decade of the twentieth century. Today, however, we are increasingly talking about the fact that its preconditions began to form in the second half of the last century and they were connected with the results of scientific and technological progress, which helped to revolutionize the industry and other important areas of society, including the administration of the processes of various nature2. Globalization brings with it «a sense that bad news from one side of the world are simultaneously transmitted to the rest of the world through global communications giants such as CNN, BBC and Reuters; feeling that the decision takes place outside the national parliaments under the influence of powerful nations; understanding that the multinational companies can 1 2



Ref.: I.I. Lukashuk. Globalization, state, law, XXI century. Moscow, 2000. P. 1. Ref.: A.Y. Kapustin. International organizations in a globalizing world. Moscow, 2010. P. 58. 315

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not only control more resources than the smallest state, but that the impact of global corporations can absorb the local culture and initiatives; and last one, the understanding that a national policy is sometimes dictated by the difference in some economic models that intended almost exclusively to provide the conditions for «free markets» and foreign direct investment with little attention to the immediate effect of such policies on the marginalized and the poor people»1. Based on the above, we can conclude that globalization is associated with the main threats posed by social change caused primarily scientific and technical progress. The revolution in global communications leads to a more profound perception of the interdependence of the world. The events in distant regions of the world can affect the planning of solving the personal problems by the citizens in the countries located from them for thousands kilometers. The informatization of public life today is perceived not only as a weal or external necessity, but also as an inner need to adapt to the rhythm of the modern world and national development. The improving of the public awareness provides food for thought about the institutions and decision-making processes on national and international issues. In fact, the active agents of globalization become not only the state and interstate associations, but also the separate persons, non-governmental organizations as well as corporations, especially multinationals. In the foreign policy of the most «globalized» states (the United States and others) and certain intergovernmental organizations (NATO, EU, and others) a clear bias towards the use of force in settling international problems, increasing interference in the internal affairs of other states, ignoring the position of small and medium nations are observed2. This creates a natural disaffection of emerging world order and its institutionally legal instruments. People do not want to be blind tool in the hands of powerful nations that pursue selfish interests under the guise of beautiful slogans about progress, liberalization and prosperity. The representatives of various humanitarian sciences of the western countries (political scientists, historians, economists, lawyers) recently put forward and actively discussing the concept of «global governance» that seeks to justify the reconstruction of peace and the formation of the modern international order based on the new configuration of decision-making in the international sphere, in which a key role played by the major world powers and interstate associations, as well as economic giants represented by the major multinational companies, defining the main trends in the global economy. 1



2

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A. Clapham. Human rights Obligations of non-state actors. Oxford, 2006. P. 4. Ref.: A.Ya. Kapustin. Op.cit. P. 59.

Chapter VIII. Inter-Parliamentary Cooperation

All of these impressive projects are accompanied by promises of prosperity and economic benefits, and talks about the transformation of state sovereignty, which is seemed as an obstacle to the development of the world economy. Such sentiments lead to a situation, which can be stipulated as «democratic paradox» of globalization. On the one hand, the globalization in some way contributed to the development and strengthening of democratic ideals in the world, we can say that it was accompanied by the democratization of political life in various countries, thus contributing to the expansion of the democratic values of states. On the other hand, the implementation of the modern interpretations of global governance leads to an acute shortage of democracy at the international level, as well as devaluing the foundations of democratic institutions at the national level. Actually, we cannot ignore the fact that with the advent of globalization the era of democratization came to a head in international relations and domestic politics of several nations. Initially it swept the Eastern Europe and the former Soviet Union, which since the late 80s of XX century began to move on the democratic principles of governance of public and the state, which caused the strengthening of the role of national parliaments in the political life of these countries. Then, in the 90s of the XX century the democratization processes continued in many countries of Asia, Africa and Latin America, by affirming the ideal of democratic values throughout the world, which earlier were characterized by the partisanship to the authoritarian forms of the government. The beginning of the new XXI century was marked by the various «colored» and «velvet» revolutions in the number of post-Soviet states. Despite the controversial nature of the events that accompanied them, in the state-legal sphere they manifested in an attempt to find adequate forms of government and a desire to overcome the negative phenomena in the government and the economy developed in previous periods of history. The second decade of the XXI century can be defined as the spread of the processes of democratization in the Arab countries located in North Africa and the Middle East. Despite the fact that there were own causes of the revolutions of the «Arab Spring» in each country, they were united by dissatisfaction with corrupt and authoritarian regimes, indigence and extreme poverty of the population, lack of democracy and the low level of public administration in general. Thus, we can conclude that the processes taking place in international relations, and the changes accompanied by them have led to the phenomenon, which has received the name of «globalization of democratic values»1. 1



Ref.: I.I. Lukashuk. Op. cit. P. 23. 317

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In general, the transition of the majority of states to democracy contributed to the further spread of parliamentarism and strengthening of representative principles of the state power. In the international inter-parliamentary cooperation the trend to the formulation of basic democratic principles have become more visible. Thus, the Inter-Parliamentary Union (hereinafter — the IPU, the Union), at its meeting in Cairo in 1997 adopted the Universal Declaration on Democracy, which can be regarded as an obligation of this association and all its members to work towards creating a culture of democracy1. The basic principles of democracy contained in this document reflect the vast experience accumulated by mankind for all history of civilization. The document, in particular, provides that democracy is a universally recognized ideal as well as a goal, which is based on common values shared by peoples throughout the world community irrespective of cultural, political, social and economic differences.  It is thus a basic right of citizenship to be exercised under conditions of freedom, equality, transparency and responsibility, with due respect for the plurality of views, and in the interest of the polity. Democracy is both an ideal to be pursued and a mode of government to be applied according to modalities which reflect the diversity of experiences and cultural particularities without derogating from internationally recognized principles, norms and standards. It is thus a constantly perfected and always perfectible state or condition whose progress will depend upon a variety of political, social, economic, and cultural factors. As an ideal, democracy aims essentially to preserve and promote the dignity and fundamental rights of the individual, to achieve social justice, foster the economic and social development of the community, strengthen the cohesion of society and enhance national tranquility, as well as to create a climate that is favorable for international peace. As a form of government, democracy is the best way of achieving these objectives; it is also the only political system that has the capacity for self-correction. The achievement of democracy presupposes a genuine partnership between men and women in the conduct of the affairs of society in which they work in equality and complementarity, drawing mutual enrichment from their differences. A state of democracy ensures that the processes by which power is acceded to, wielded and alternates allow for free political competition and are the product of open, free and non-discriminatory participation by the people, exercised in accordance with the rule of law, in both letter and spirit. Democracy is inseparable from the rights set forth in the international instruments recalled in the preamble. These rights must therefore be applied 1



318

Ref.: The Universal Declaration on Democracy // http://www.Ipu.org/htm cnl-e/161-dem.

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effectively and their proper exercise must be matched with individual and collective responsibilities. Democracy is founded on the rule of law and the exercise of  human rights. In a democratic state, no one is above the law and all are equal before the law. Peace and economic, social and cultural development are both conditions for and fruits of democracy. There is thus interdependence between peace, development, respect for and observance of the rule of law and human rights1. The proclamation of such principles of democracy as a universal value was possible only due to the processes of democratization that began in the late XX century and continue to develop at this time. However, by mentioning the revival and renewal of democratic values in the world public opinion, it is necessary to note the processes of their depreciation on the opinion of the vast majority of the population of developing countries. People understand that their participation in the democratic process is brought to nought by the adoption of crucial national decisions at the international level, in which the role of governments is extremely low. In fact, the program of restructuring of international economic relations, put forward by developing countries in the 70s of the XX century has remained unrealized until the XXI century. International credit and financial organizations, nowadays acting as the main instigators of the neoliberal model of globalization, are still under the control of the major industrialized nations of the world. They are not subject to public control and accountability that characterize such universal political international organizations such as the UN. Any world economic and financial crises are not able to shake the principles of the global financial and economic system. This naturally causes dissatisfaction among the population both the poor and quite affluent in the economic sense states. In addition, the 80-90s of the XX century and the beginning of the XXI century, accompanied by intensive development not only universal international organizations (the appearance in the 90s of the XX century of such a giant of world trade, as the WTO is very symptomatic of the globalizing world), but also the expansion of regional integration processes, especially in the social-economic sphere, the main responsibility for which was assigned to the regional interstate integration associations. Their growth and increased involvement in the resolution of regional economic, financial and social issues also lead to a reduction of the national democratic control over decision-making in the key areas for the states. 1



Ref.: The Universal Declaration on Democracy. 319

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The Universal Declaration on Democracy of the Inter-parliamentary Union pays attention to this disturbing trend. In particular, it is noted that democracy must also be recognized as an international principle, applicable to international organizations and to States in their international relations. The principle of international democracy does not only mean equal or fair representation of states; it also extends to the economic rights and duties of states 1. It should be noted that contemporary international law gives considerable attention to the maintenance of international democracy and primarily the development of parliamentarism. For example, the Universal Declaration of Human Rights of 1948 recognizes the right of everyone to take part in the government of his country, directly or through freely chosen representatives. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures2. The International Covenant on Civil and Political Rights of 1966 repeats the main points of the declaration, stressing that this right and opportunity should be assigned to the citizens without any discrimination and unreasonable restrictions3. The right to free elections is enshrined in the Protocol No. 1 to the European Convention on Human Rights of 1951. In addition, currently in the context of globalization there is surge of public activity at various levels of communication: domestic, regional, international. The conferences on topical international problems on which discussed a wide range of issues, from social to environmental are held. The growing number of international non-governmental organizations and their participation in the universal and regional international intergovernmental organizations brought to life the introduction of the concept of «global (or international) civil society». Along with this, the global democratization has significant reserves of strengthening and increasing the use of existing and new forms of inter-parliamentary cooperation. This is manifested in the strengthening of cooperation of the national parliaments on discussing the contemporary international issues both bilaterally and at the multilateral level, in the effort of the Inter-parliamentary Union in cooperation with the parliamentary bodies of several intergovernmental organizations to have an impact on deci1



2 3



320

Ref.: The Universal Declaration on Democracy. Ref.: UDHR // International human rights instruments: Coll. of documents. Moscow, 2002. P. 41. Ref.: International Covenant on Civil and Political Rights (1966) // The international instruments on human rights. Coll. of documents. Moscow, 2002. P. 59–60.

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sion-making and strategy development of such universal international organizations such as the WTO, IMF and World Bank. In particular, in the last decade in the framework of the WTO conferences the practice of organizing and arranging the inter-parliamentary dialogue, involving the representatives of the IPU and the European Parliament of the European Union (EU) has developed. The main purpose of the Inter-parliamentary conferences on the WTO is to enhance the external transparency of the WTO and ensure its accountability to representatives of the legislative authority elected by the people of the relevant states1. Such practice of cooperation with international organizations is typical for the IPU, which is engaged in cooperation with the League of Nations, even in the period between the two world wars and after the establishment of the United Nations uses its discussion platforms to bring the viewpoint of parliaments and parliamentarians on relevant international issues to the attention of the world community2. The desire to ensure the rule of law in international integration process leads to the fact that in the framework of the most of integration associations of interstate nature the parliamentary bodies have been already created or it is planned to create them that are able to ensure public control over the activities of international organizations and make it more transparent. The increased participation of parliaments in international affairs led to the emergence of a new concept of «parliamentary diplomacy», which reflects the recognition of the contribution of inter-parliamentary cooperation in solving of today international problems. However, the globalized world order is far from the democratic ideal. In particular, the strengthening of the role of multinational companies in the global economy, the dominance of large companies in trade and investments is accompanied by introduction of theories substantiating the reduction of the capacity of states to exercise the effective administration of society and proposals for the transfer of certain sectors of the state power to the corporations. The conclusion is that global policy separates administration from the state and its bodies, so the politicians of separate countries should delegate their functions to international institutions and such bearers of global politics as the World Bank, the International Monetary Fund and others.3 It goes without saying that the implementation of such theories of «transformation of political power» may lead to the devaluation of dem1



2



3

Ref.: www.wto.org/english/forum_e/parlamentarias_e/parlamentarias_e.htm25/С-2013-02-12 Ref.: V.L. Shvetsov. Inter-parliamentary Union. Moscow, 1969. P. 31–35, 59–70. Ref.: I.I. Lukashuk. Op. cit. P. 24–25 321

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ocratic values, the weakening of the role of parliaments to exercise their control functions over the executive power. The inter-parliamentary cooperation as a phenomenon of international relations has deep historical roots. The first form of this cooperation was the creation on June 30, 1889 on the initiative of U.R. Creamer and F. Passy of the Inter-Parliamentary Union, which is now the oldest international parliamentary organization1. Initially, the members of the Union were separate members of national parliaments, which, apparently, later served as a model for determining the composition of parliamentary bodies. Gradually, with the development of the IPU the membership passed to the parliaments as a whole. By its legal status, this organization refers to the international non-governmental organizations, although in some sense implies inter-state character. According to Art. 1 of the Statute, the IPU is the international organization of parliaments of sovereign states.2 As the focal point for worldwide parliamentary dialogue since 1889, the Inter-Parliamentary Union shall work for peace and cooperation among peoples and for the solid establishment of representative institutions. To that end, the Union shall: foster contacts, coordination and the exchange of experience among Parliaments and parliamentarians of all countries; consider questions of international interest and express its views on such issues with the aim of bringing about action by Parliaments and their members; contribute to the protection and promotion of human rights, which are universal in scope and respect for which is an essential factor of parliamentary democracy and development; contribute to better knowledge of the working of representative institutions and to the strengthening and development of their means of action3. The IPU, which shares the objectives of the United Nations, supports its efforts and works in close cooperation with it. It also cooperates with regional inter-parliamentary organizations, as well as with international, intergovernmental and non-governmental organizations which are motivated by the same ideals. The membership in the IPU is open to every parliament constituted in conformity with the laws of a sovereign state whose population it represents and on whose territory it functions. For these purposes each parliament may request affiliation to the Inter-Parliamentary Union. Any parliament constituted in conformity with the basic law of a territorial entity whose 1



2 3



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Ref.: http://www.ipu.org/еnglish/history.htm Ref.: Statutes of the Inter-Parliamentary Union // URL: http://www. ipu.org/strct-e/ statutes-new.htm In the same. P. 1.

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aspirations and entitlement to statehood are recognized by the United Nations, and which enjoys the status of Permanent Observer to the United Nations with substantial additional rights and privileges, may also become a Member of the IPU. In the case of the federal states, only the federal parliament may make a request to become a member of the IPU. Every member of the Union shall adhere to the principles of the IPU and comply with its Statute. International parliamentary assemblies established under international law by States which are represented in the IPU may, upon their request and after consultation with the relevant Members of the IPU, be admitted by the Governing Council as associate members 1. All members and associate members of the Union will have their own regulations governing their participation in the work of the Union. It is the sovereign right of each member of the IPU to decide on the manner in which it organizes its participation in the IPU. It is the duty of the members of the IPU to submit the resolutions of the IPU within their respective parliament, in the most appropriate form; to communicate them to the government; to stimulate their implementation and to inform the IPU Secretariat, as often and fully as possible, particularly in its annual reports, of the steps taken and the results obtained2.  Currently the members of the IPU are the national parliamentary groups of 162 countries and 10 regional inter-parliamentary organizations as associated members3. Since 1955, the delegations of the Supreme Soviet of the USSR participated in the Union’s work, and since 1992 — the Parliament of the Russian Federation. By the way, the US Congress is not a member of the nongovernmental organization. The existing Statute of the Union was adopted in 1976 and completely revised in 2003, it was repeatedly amended. The organizational structure of the IPU resembles the structure of the international intergovernmental organizations, but also has a number of original features. It includes the Assembly, the Governing Council, the Executive Committee and the Secretariat. The highest authority of the IPU is the Inter-Parliamentary Assembly, which is held twice a year (in spring in one of the state-member of the organization, in autumn — in Geneva (Switzerland) at the headquarters of the Union). The work of the Assembly is attended by the delegations of parliamentarians appointed to serve as delegates by the members of the Union. The formation of the delegation should take into account the principle of gender 1

3 2

Ref.: Statutes of the IPU. Op. cit (art. 3). In the same. P. 7. Ref.: www.IPU.org. 323

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equality, which the IPU has consistently adhered to. In particular, it is necessary that member-states include men and women parliamentarians in their delegation and shall strive to ensure their equal representation. In addition, any delegation that for three consecutive sessions of the Assembly is composed exclusively of parliamentarians of the same sex shall automatically be reduced by one person. The number of members of Parliament appointed as delegates to the Assembly by a Member of the IPU shall in no case exceed eight in respect of Parliaments of countries with a population of less than 100 million inhabitants, or 10 in respect of Parliaments of countries with a population of 100 million inhabitants or more. The number of delegates to the second Assembly of the year shall not exceed 5 people or 7 people from the parliaments of the countries with a population of 100 million or more people1. The Assembly shall be opened by the President of the Inter-Parliamentary Union or, in his/her absence, by the Vice-President of the Executive Committee. The Assembly debates issues which, under the provisions of  the Statutes, fall within the scope of the IPU, and makes recommendations expressing the views of the Organization on these questions 2. The Assembly is assisted in its work by Standing Committees, whose number and terms of reference are determined by the Governing Council. The temporary and special committees may also be established. Another body of the IPU is the Governing Council, which works in sessions and normally holds two sessions a year. The Governing Council shall be composed of three representatives from each member of the Union. The Governing Council shall elect the President of the IPU of the eminent parliamentarians for three years without the right to re-election. For the period of 2014-2017 S.Kh. Choudkhury (Bangladesh) is elected to the President of the IPU. The President of the IPU is the political head of the organization and shall be ex officio President of the Governing Council. The Governing Council shall perform the important executive functions, such as the decision on the admission and readmission of members of the Union, as well as on the suspension of their affiliation and others. The adopts annually the work programme and budget of the IPU and establish the scale of contributions. In addition, it elects the members of the Executive Committee and appoints the Secretary General of the Union. The Board performs a number of other functions3. The Executive Committee is another IPU body. It consists of the President of the Union, 15 members belonging to the various national parlia1

3 2

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Ref.: Article 10 of the Charter of the IPU // www.ipu.org. Statutes of the IPU (art. 10). Ref.: Art. 12 the Charter of the IPU. Ref.: Art. 17–21 the Charter of the IPU.

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ments, and the President of the Coordinating Committee of the Meeting of Women Parliamentarians. The President of the IPU is the ex officio President of the Executive Committee. The Executive Committee should include at least three women1. The Executive Committee is the administrative body of the IPU. The IPU members may form the geopolitical groups. Each group independently decides on the working methods that best suit its participation in the activities of the organization. The Secretariat of the Union comprises the totality of the staff of the Organization under the direction of the Secretary General, who shall be appointed by the Governing Council. The secretariat is located in the permanent headquarters of the Union (Geneva, Switzerland). The Association of the Secretaries General of national parliaments is established as a consultative body of the IPU (hereinafter — the AGSP, the Association). The Association and those bodies of the IPU that are engaged in the study of parliamentary institutions are complementary. They coordinate their activities through consultations and close collaboration at the stages of preparation and implementation of projects. The Association is administered autonomously The Union shall make an annual contribution to the budget of the ASGP. The Rules which the ASGP establishes shall be approved by the Governing Council of the IPU. It should be noted that the cooperation between the parliaments of separate countries currently are not only limited to the IPU. Today, forms and methods of such cooperation are significantly diversified. For example, there are more flexible forms of inter-parliamentary cooperation, for example, international networks, composed of members of national parliaments. The network of «Parliamentarians for Global Action» be ascribed to such forms. It includes about 1,300 parliamentarians from nearly one hundred countries. The network principle is perceived by some international organizations, thus avoiding the creation of a special parliamentary body within an international organization. The parliamentary network exists at the International Bank for Reconstruction and Development. In addition, the Consultative Assembly of Parliamentarians for the International Criminal Court and the Rule of Law is established. Additionally there are regional inter-parliamentary organizations such as the Asia-Pacific Parliamentary Union and the inter-parliamentary union on a bilateral basis: Inter-Parliamentary Group of Canada — the USA, Inter-Parliamentary Group of Mexico — the USA. 1



Ref.: Art. 23 the Charter of the IPU. 325

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Moreover, the bilateral parliamentary relations of separate countries, which allow them to coordinate their activities and exchange experiences, keep their place. The Chambers of the Federal Assembly independently organize inter-parliamentary cooperation at the international level. The regulatory framework for implementation of inter-parliamentary relations are the Regulations of the Chambers. In addition, the participation of deputies in the inter-parliamentary relations can be governed by the other regulations such as the Regulation on the Protocol of the State Duma, approved in 1998 by the Council of the State Duma. Single issues of the activities of the Federal Assembly and its Chambers may be the subject of international legal instruments adopted by the international intergovernmental organizations maintaining inter-parliamentary cooperation, which involved representatives of the Chambers of the Federal Assembly. The inter-parliamentary cooperation is carried out by the Federal Assembly of Russia with foreign parliaments, international parliamentary organizations, as well as with international organizations having in their structure the international parliamentary bodies. Depending on the form of cooperation as the legal basis may serve an agreement on inter-parliamentary cooperation, the conclusion of which is stipulated by the Regulations of both Chambers of the Federal Assembly, the statutes of the international parliamentary organizations, founding acts and other international legal acts adopted in the international inter-governmental organizations, the structure of which includes international parliamentary bodies. The Council of Federation and the State Duma widely use in their activities the competence to conclude bilateral treaties on cooperation with the parliaments of other countries. For example, in 1994 the Council of Federation and the State Duma signed two separate treaties on inter-parliamentary cooperation with the Jogorku Kenesh of the Kyrgyz Republic. In some cases, the similar treaties are concluded on behalf of both chambers of the Federal Assembly. Thus, the Federal Assembly in 1994 signed a treaty on inter-parliamentary cooperation with the Supreme Council of Azerbaijan, in 2007 with the Jogorku Kenesh of the Kyrgyz Republic. Such inter-parliamentary bilateral treaties are approved by one or both Chambers. They express the desire of the parties to strengthen mutually economic and other relations and contacts expansion. The parties to such treaties undertake to promote the ratification of international treaties concluded between the relevant countries. The parliaments also agree to hold consultations in order to coordinate the parliamentary activities in the international arena, as well as to support 326

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each other during the discussion on issues of mutual interest in the international parliamentary organizations. Moreover, the parties agree to promote the rapprochement and harmonization of legislation, activating for this purpose in the parliamentary bodies of international intergovernmental organizations (IPA of CIS, IPA of EurAsEC, etc.) the interaction of their delegations to develop a recommendation legislation on which laws of the countries (in this case, Russia and Kyrgyzstan) are developed and adopted. In addition, the parties undertake to promote the establishment of permanent relations between the committees, commissions, deputy associations, and exchange of delegations to study the practice of elaboration and adoption of legislation and the experience of parliamentary activity. The parties also agree to exchange information, legislative acts, periodicals on the promotion of the access to information collections and databases of parliaments. The joint permanent parliamentary commission on cooperation is established to organize and coordinate the interaction between the parties. The provisions of the regulation of this commission provides its composition, objectives and proceedings. The parties also agree to promote the establishment of permanent relations between the legislative machineries of the parliaments in order to study the practice of drafting and adoption of legislation and the experience of legislative activities1. The bilateral treaties on inter-parliamentary cooperation are the legal basis for cooperation of the parliaments of the party states in different legal forms. Any visits of delegations, conferences, exhibitions, meetings, etc. are held by the parties on the basis of the provisions of these treaties. As for the participation of the Federal Assembly in the parliamentary institutions, the relevant provisions on the membership of parliaments contain in the charters of such organizations or treaties on their establishment. Thus, Russia’s accession to the Asia-Pacific Parliamentary Forum (APPF) was held in 1993 on the basis of the provisions of the Tokyo Declaration, adopted in January 1993. Paragraph 7 of this Declaration devoted to the issues of membership and participation in the Forum provides that it is open to accession by the national parliamentarians of the Asia-Pacific region, in particular ASEAN, APEC and the South Pacific Forum, which have an active interest in arranging dialogue among parliamentarians in the region and accept the purposes and principles of the APPF, enshrined in this Declaration. These 1



Ref..: Agreement between the Federal Assembly of the Russian Federation and the Jogorku Kenesh of the Kyrgyz Republic on inter-parliamentary cooperation of May 17, 2007 (URL: //http/www. council. gov. ru). 327

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rules of admission to the APPF were clarified at the second session of the forum in Manila in 1994, and p. 6 of the Regulation («Membership and observer status») of the APPF provides that the national parliaments of sovereign states of the region can be the members of the Forum. Application for membership is submitted to the Executive Committee of the APPF, which considers it and makes recommendations on the admission of the next annual session of the Forum. Currently, the Federal Assembly participates in the work of seven such inter-parliamentary associations — the already mentioned APPF, Asian Parliamentary Assembly (APA), Inter-parliamentary Assembly on Orthodoxy (IAO), Inter-Parliamentary Union, Baltic Sea Parliamentary Conference (BSPC), Conference of Parliamentarians of the Arctic Region (CPAR), PANATO, and Parliamentary Assembly of the Black Sea Economic Cooperation (PABSEC). Finally, the delegations of the Federal Assembly participate in the parliamentary bodies of international intergovernmental organizations. The right to take part in the work of such bodies is set forth in the international legal order, the statutes, other basic instruments, or the specifically adopted provisions relating to these bodies. For example, Art. 10 of the Charter of the Council of Europe clearly establishes that its bodies are the Committee of Ministers and the Consultative Assembly. This provision underlines the high legal status of parliamentary body as an authorized body of an international intergovernmental organization. Sometimes there are difficult situations when parliamentary bodies are established by the bodies of other international intergovernmental organizations (IIA) which are close by its sphere of activity or the performed tasks, as in the case of the Parliamentary Assembly of the CSTO1. In the Article 11 of the Charter of the CSTO, devoted to the structure of the organization, there is no any mention of the parliamentary body. The decision to create a special parliamentary body of the CSTO was made after the establishment of the organization. At the session of the Collective Security Council of the CSTO (the supreme body of the organization), held in Minsk, the need for the development of the parliamentary dimension within the framework of the CSTO Inter-parliamentary Assembly of the CIS has expressed in order to harmonize national legislations, to elaborate model laws intended to achieve the statutory objectives of the CSTO, the organization of interaction on international and regional security. Based on this decision of the CSTO and the Convention on the Inter-parliamentary Assembly of States–Members of the CIS, the chairmen of the parliaments 1



328

Collective Security Treaty Organization.

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of the CIS states-members of the Collective Security Treaty Organization at their meeting on November 16, 2006 adopted a resolution on the establishment of the Parliamentary Assembly of the CSTO. Since then, the Parliamentary Assembly of the CSTO is regarded as a body of inter-parliamentary cooperation between states–members of the IPA of CIS — the members of the CSTO established within the Inter-Parliamentary Assembly of states–members of the Commonwealth of Independent States. Its legal status, the procedure of formation and functioning are defined by the Provisional Regulations of March 30, 2007 and the Regulation of the Council of the Parliamentary Assembly of the CSTO of April 3, 2008. The parliamentary bodies are established in the following international intergovernmental organizations, the member of which is the Russian Federation: the CIS, CSTO, EurAsEC, OSCE, Council of Europe, the Black Sea Economic Cooperation (BSEC). The State Duma also performs another important function in the sphere of inter-parliamentary cooperation. It considers legislative recommendation acts of the Interparliamentary Assembly of the states-members of CIS and takes decision on their implementation. The relevant committee of the State Duma previously considers the legislative recommendation acts. A special place takes the establishment of the inter-parliamentary cooperation on the basis of a bilateral treaty between Russia and an international organization such as the European Union. Considering that the negotiations on a new treaty on strategic partnership between the EU and Russia have come to nought, up to now the Agreement on Partnership and Cooperation of 1993 between them remains in effect. On the basis of Art. 95 of the Agreement a special parliamentary cooperation mechanism was established, in which the Russian party is represented by members of the Federal Assembly, the EU — members of the European Parliament delegation responsible for relations with Russia: the Committee of the Parliamentary Cooperation «Russia — EU». The meetings of the Committee, formed under the mechanism of parliamentary cooperation, according to the Regulations of procedure are held twice a year, alternately in Brussels, Strasbourg and Moscow, co-chaired by the heads of both delegations. The meetings, during which the Russian delegation arrives, are held over two days. In addition to the members of both delegations at the invitation of the head of the EU delegation responsible for relations with Russia a meeting can be attended by the Chairman of the EU Council and a member of the European Commission responsible for relations with Russia. As a rule, the meetings are preceded by the Committee Bureau at which the Committee agenda is agreed and the documents for discussion are prepared. 329

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In the course of the Committee’s work the following matters of relations between Russia and the EU are considered: approaches of the states to the expansion of the European Union; implementation of the agreements within the framework of the «road maps» (the four areas of formation of a common space — problems in the economy, issues of freedom, security and justice, external security, science, education and culture); energy dialogue «Russia–EU»; Russia’s accession to the WTO; environment protection; respect for human rights, as well as issues of constructive development of relations with neighboring states-EU members1. Thus, we can conclude that the Federal Assembly of the Russian Federation in its activities uses various forms of inter-parliamentary cooperation and interaction needed to promote the interests of our country abroad. It should be noted that both Chambers organize their international activities on a scheduled basis. In the Council of Federation the Inter-Parliamentary Cooperation Plan is approved annually by the Council of Chamber upon the recommendation of the Chairman of the Council of Federation. The draft plan for inter-parliamentary cooperation previously considered by the Committee of the Council of Federation on International Affairs, the Committee of the Council of Federation on Regulations and organization of parliamentary activity (in terms of financial support) that take into account the proposals of other committees of the Council of Federation, and after consultation with the committees of the Council of Federation is submitted to the Council Chamber. In the implementation of the plan of inter-parliamentary cooperation all the committees of the Council of Federation are involved2. Similarly, the Council of the State Duma approves annual plans of the international relations of the State Duma with the parliaments of other countries. The draft of such plans are prepared jointly by the Committee of the State Duma on International Affairs and the Committee of the State Duma on CIS Affairs and Relations with Compatriots, taking into account the views of other committees and factions, as well as the proposals of the Inter-parliamentary Group of the Russian Federation. Also they are agreed with the Committee of the State Duma on Regulations and Organization of the State Duma3. 1 2 3



330

Ref.: http://www. council. gov.ru Ref.: Article 202 of the Regulations of the Council of Federation of the Federal Assembly of the Russian Federation // www.council. gov.ru Ref.: Article 199 of the Regulations: of the State Duma of the Federal Assembly of the Russian Federation //www.duma.gov.ru

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The international relations of the Federal Assembly are carried out through inter-parliamentary groups, which are formed by both chambers of the Federal Assembly. In accordance with the approved by the Council of the State Duma of the Annual Plans of International Relations of the State Duma with the parliaments of other countries, the Council of the State Duma, taking into account the views of the factions, committees, the Chairman of the State Duma, shall determine the staff of official parliamentary delegations of the State Duma, heads of these delegations, their deputies and secretaries, as well as the parts of the Russian parliamentary commissions (parliamentary or working groups) of the State Duma on bilateral cooperation with the parliaments of other countries. The provisions on the Russian parts of the inter-parliamentary commissions (parliamentary or working groups) on bilateral cooperation with parliaments of other countries and the provision of the parliamentary delegation of the Russian Federation to the Parliamentary Assembly and other parliamentary organizations, including the delegation of the Federal Assembly and the states-members of the Commonwealth of Independent States in the Parliamentary Assembly OSCE, are approved by the State Duma and the Council of Federation in the prescribed manner. The participation of the deputies of the State Duma in the activities of the IPU is governed by the provisions on the Parliamentary Group of the Russian Federation, adopted by the General Assembly of the Inter-Parliamentary Group of the Russian Federation. The Parliamentary Group is a voluntary association of members of the Council of Federation and the deputies of the State Duma representing the Russian national parliamentary group in the IPU. Thus, in the inter-parliamentary relations a variety of forms of cooperation both at the bilateral and multilateral level (sub-regional, regional, continental and universal) has developed. They are activated through the work of the national parliaments, and their role within the countries and in international relations are increased. § 2. The Federal Assembly and the legislative bodies of the subjects of the Russian Federation in the international cooperation

In respect of the Russian Federation as a federal state, the concept of «inter-parliamentary cooperation» has several meanings. Firstly, the Federal Assembly of the Russian Federation maintains relations with the legislative (representative) bodies of the regions of the Federation. 331

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This kind of interaction can be defined as a vertical domestic inter-parliamentary cooperation, as it involves both the federal legislative bodies and the regional legislative bodies. In particular, in 2002, the Council for Cooperation of the Council of Federation of the Federal Assembly with the legislative (representative) bodies of the regions of the Russian Federation (the Council of Legislators) was established. Secondly, under the inter-parliamentary cooperation is understood the participation of the regional legislative bodies in regional associations established to harmonize approaches to the implementation of reforms in various spheres, to promote the development of the legal state, the Russian parliamentarism, to strengthen contacts between the parliaments and parliamentarians of the Russian Federation. This form of cooperation can be defined as a horizontal domestic inter-parliamentary cooperation. As an example, the Parliamentary Association of North-West Russia and the Parliamentary Association «Far East and Zabaikalye», established in 1994. The Union of Russian legislators, established in 1998 and bringing together the heads of the legislative bodies of about 70 regions of the Russian Federation is example of the inter-regional public organization. In 2009, the Council of the Chamber of the Council of Federation adopted, and the Presidium of the Council of Legislators approved the Concept of improvement of interaction of the Council of Federation with the regional legislative (representative) bodies in the legislative process. In May 2012, the Council of Federation, and in June 2012 the State Duma adopted a resolution on the establishment of the Council of Legislators of the Russian Federation under the Federal Assembly in order to organize the cooperation of the Federal Assembly with the legislative (representative) bodies of the regions of the Russian Federation in the legislative process and the exchange of experience of the parliamentary activities. Thirdly, the bilateral cooperation of the Federal Assembly with the legislative bodies of the Federation can be referred to the said horizontal domestic inter-parliamentary cooperation. In particular, the Council of Federation developed a model agreement between the Council of Federation and the legislative and (representative) bodies the regions of the Russian Federation on cooperation in the federal legislative process. On its basis, the Council of Federation has been developed and signed the agreements with 85 regions. This may also include a bilateral inter-parliamentary cooperation between the legislative bodies of the regions of the Federation. For example, the Legislative Assembly of the Kirov Region signed an agreement on cooperation in the sphere of legislative activity with the legislative bodies of six other regions of the Russian Federation (the Republic of Komi and others). 332

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Fourthly, under the inter-parliamentary cooperation the cooperation of legislative bodies (federal and regional) with foreign parliaments and international organizations can be understood. In this sense, all legislative bodies (federal and regional) of our state are actively involved in the development of international inter-parliamentary cooperation on a bilateral and multilateral basis. The legal framework for such participation of the Federal Assembly is set forth in the Regulations of its Chambers, which contain specific provisions on the implementation of international relations. It is to be recalled that the Regulations of the Council of Federation provides that the Council cooperates with foreign parliaments and international parliamentary organizations in accordance with the plan of inter-parliamentary cooperation, which is approved annually by the Council of Chamber on the proposal of the Chairman of the Council of Federation. The draft plan for the inter-parliamentary cooperation previously considered by the Committee of the Council of Federation on International Affairs, the Committee of the Council of Federation on Regulations and organization of parliamentary activity (in terms of financial support) that take into account the proposals of other committees of the Council Federation, and after consultation with the Council of Federation the Committee are submitted to the Council of Chamber. The implementation of the plan of inter-parliamentary cooperation involves all committees of the Council of Federation1. In addition, the Council of Federation may conclude an agreement on inter-parliamentary cooperation and the exchange of parliamentary delegations. These agreements are concluded in the manner prescribed by the relevant provision, approved by the Council of Federation. The Committee of the Council of Federation on International Affairs elaborates the draft provision. These agreements on inter-parliamentary cooperation may be approved by the Council of Federation on the initiative of the Chairman of the Council of Federation and the Committee of the Council of Federation on International Affairs. The Council of Chamber on the proposal of the Chairman of the Council of Federation and the Committee of the Council of Federation on International Affairs decides the order of formation of the delegations of the Council of Federation of the Federal Assembly delegations in international parliamentary organizations and approves their composition. The Council of Chamber on the proposal of the Chairman of the Council of Federation and the Committee of the Council of Federation on In1



Ref.: www. council.gov.ru. 333

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ternational Affairs approves the agreed with the Council of the State Duma provision on the Russian parts of the parliamentary commissions on bilateral cooperation of the Federal Assembly with the parliaments of the states-members of the Commonwealth of Independent States. The Council of Federation establishes the groups on cooperation with the parliaments (chambers of parliaments) of the foreign states in accordance with the provision adopted by the Council of Chamber on the proposal of the Chairman of the Council of Federation. The groups on cooperation of the Council of Federation with the parliaments (chambers of parliaments) of the foreign states coordinate their work with the relevant associations of the State Duma deputies. Currently there are 11 such groups. Within the framework of inter-parliamentary cooperation, the international forums, conferences, seminars, days of parliaments of foreign states in the Council of Federation, days of the Council of Federation in the parliaments of foreign states and other activities can be carried out. In accordance with the approved by the Council of Chamber the annual plan of inter-parliamentary cooperation, the Council of Chamber on the proposal of the Chairman of the Council of Federation and the Committee of the Council of Federation on International Affairs approves the staff of the sent abroad delegations of the Council of Federation, heads of delegations, their deputies and accompanying persons, defines the scope of their powers and the expenditures on business trips1. The procedure of stay, the protocol, financial, organizational and technical support of these delegations is established by the Council of Chamber on the proposal of the Chairman of the Council of Federation. The delegation of the Council of Federation presents the Chairman of the Council of Federation a report on the visit results. The said report may be submitted to the Council of Federation, or distributed as information to the members of the Council of Federation at the initiative of the Council of Chamber. If necessary, the State Duma may conclude with the parliaments of other states and international parliamentary organizations the agreements on inter-parliamentary cooperation. When visiting the State Duma by the heads of parliaments of other states, heads of states and governments, heads of parliamentary delegations, the Chairman of the State Duma or on his behalf one of his deputies has a conversation with them. At the request of the heads of parliaments of other states, heads of states and governments, heads of parliamentary delegations their meetings with 1



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the members of committees, commissions of the State Duma, factions may be arranged. The heads of the parliaments, heads of states and governments, heads of parliamentary delegations of other countries at their request may be given the opportunity to speak at a meeting of the State Duma. The Council of the State Duma on the written request made by the Committee of the State Duma or factions receiving a parliamentary delegation submits a proposal for such a presentation to the procedure of work of the State Duma. The proposal shall contain the date, time, and duration of the presentation. The head of the official parliamentary delegation of the State Duma, as a rule, is the Chairman of the State Duma, or on his behalf one of his deputies. If the official parliamentary delegation of the State Duma is headed by the Chairman of the State Duma, or one of his deputies, other deputies of the Chairman of the State Duma are not introduced into the composition of the said delegation. The Council of the State Duma also determines the candidates among the deputies of the State Duma for introduction into the delegation and Russian parts of the inter-parliamentary commissions (parliamentary or working groups) of the Federal Assembly. The delegations of factions are sent outside the Russian Federation at the expense of their own funds and represent outside the Russian Federation only the relevant factions, but not the State Duma as a whole, unless the Council of the State Duma has not taken of a special decision in respect of any faction. The State Duma generates the coordinated with the Council of Federation procedure for forming the general delegations and the Russian parts of parliamentary commissions (parliamentary or working groups) of the Federal Assembly. The official delegations of the State Duma submit to the Council of the State Duma, as well as to the Committee of the State Duma on Foreign Affairs, the Committee of the State Duma on CIS Affairs and Relations with Compatriots, the Department of International Cooperation of the State Duma, and if necessary to other committees of the State Duma a report on their work. At the initiative of the Council of the State Duma, the head of the delegation, as well as the relevant committee the report can be submitted for consideration of the State Duma 1. The State Duma and the Council of Federation approves the provisions on the Russian parts of the inter-parliamentary commissions (parliamen1



Ref.: www.duma.gov. ru 335

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tary or working groups) on bilateral cooperation with parliaments of other countries and the provision on the parliamentary delegation of the Russian Federation in the Parliamentary Assembly and other parliamentary organizations, including the delegation of the Federal Assembly, and states-members of the Commonwealth of Independent States, the Parliamentary Assembly of the OSCE. The participation of the deputies of the State Duma in the activities of the IPU is regulated by the provision on the Parliamentary Group of the Russian Federation, adopted by the General Assembly of the Inter-Parliamentary Group of the Russian Federation. The State Duma approves in consultation with the Council of Federation the uniform procedure for the protocol, financial, organizational and technical support of foreign parliamentary delegations of the Russian Federation, as well as a list of deputies of the State Duma, leaving the Russian Federation in composition of the Russian parts of the parliamentary committees or in delegations of the State Duma and the Federal Assembly1. With regard to the legislative bodies of the regions of the Russian Federation, they also have the right, within its competence to participate in an international inter-parliamentary cooperation, as a rule, at the level of legislative (representative) bodies of the regions of the Federation or of the administrative-territorial entities and municipalities. The regulatory framework for such cooperation is contained in their regional legislation, which was adopted according to the federal legislation. The example is the City Duma of Moscow, the main activities of which on international, foreign economic and interregional relations are defined in Art. 77 of the Charter of Moscow. In particular, the Charter provides for the conclusion of agreements on cooperation with the legislative (representative) bodies of foreign states, administrative and territorial entities of foreign states. The relevant power of the City Duma of Moscow are provided by sub. 20 p. 1 Art. 35 of the Charter of Moscow, which establishes that the City Duma of Moscow concludes an agreement with the legislative (representative) bodies of the state power of other regions of the Russian Federation and foreign states2. In accordance with the Law of Moscow of March 28, 2001 No. 11 «On the Contracts and Agreements of Moscow», the City Duma of Moscow may conclude an agreement on inter-parliamentary cooperation with the legislative (representative) bodies of of the regions of foreign federated states, administrative and territorial entities of the foreign states. 1 2



336

In the same. Ref.: The Law of Moscow of June 28, 1995 «The Charter of Moscow» // PCA «Konsul­ tant Plus».

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The agreements on inter-parliamentary cooperation are signed by the Chairman of the City Duma of Moscow and enter into force after their approval by the Duma. Such agreements shall be approved by the Duma by taking the appropriate decisions1. The entities of the treaty relations, among others, can be the legislative (representative) bodies of the regions of foreign federal states. In addition, the City Duma of Moscow can directly engage in international cooperation and communication with international inter-parliamentary organizations. The City Duma of Moscow has signed a number of agreements with the representative (legislative) bodies of the regions (regions of the Federation) of the foreign states — the Senate of California State, the Bavarian Landtag, the Council of the Brussels Capital Region, and others. In addition, the representatives of the legislative bodies of the Russian Federation, along with the representatives of the bodies of the executive power of the regions and local bodies participate in the work of one of the bodies of the Council of Europe — the Congress of Local and Regional Authorities. § 3. Parliamentary law of the intergovernmental associations

The history of formation of the parliamentary bodies of intergovernmental organizations. The intergovernmental organizations are an important element of the system of international relations; they appeared in the second half of the XIX century. The first intergovernmental organizations were named as administrative unions. They had a fairly simple structure, includes the supreme bodies in the form of periodic conferences convened by the states-member, the executive bodies (councils) with a limited number of members, responsible for the policy arrangement of administrative union between conferences, and secretariats which carried out the administrative functions. The General Director (or General Secretary) headed the secretariats. International Telegraph Union (now the International Telecommunication Union), created in 1865, the World Meteorological Organization, formed in 1873, and the Universal Postal Union, established in 1874 can be referred to the administrative unions. The first parliamentary body of the intergovernmental union in the history was the Consultative Assembly of the Council of Europe, established 1



Ref.: The Law of Moscow of March 28, 2001 No. 11 «On the Contracts and Agreements of Moscow» // PCA «Konsultant Plus». 337

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by the Western European states in 1949. The Council of Europe is composed of two main bodies: the Committee of Ministers, which is composed of the Foreign Ministers of the Member States and the Consultative Assembly, including persons elected by the parliaments of the states-members of the Council of Europe or appointed among them. Subsequently, the model of the parliamentary body of the Council of Europe served as a prototype for similar bodies of other interstate associations of Western European states. Thus, in 1951, the Parliamentary Assembly was established by the European Coal and Steel Community (ECSC). It has become one of the major bodies of the integration association. In 1957, at the creation of the other two European Communities (EEC and Euratom), the Parliamentary Assembly was established in framework of their structure. In turn, in the Benelux, the economic union of Belgium, Netherlands and Luxembourg, in 1955, the Inter-Parliamentary Advisory Council was established. The Western European Union, established in 1954 by transformation of the European Defense Community in 1948, in contrast to the latter provided for the establishment of the Parliamentary Assembly, which was originally named as the Consultative Assembly. The International Organization of the Scandinavian countries — the Nordic Council is based on the principle of dual representation. It consists partly of members elected by the national parliaments (87), and partly of representatives of governments (80 members). In the scientific literature there is an opinion that the Nordic Council, despite its original structure, also was being formed under influence of the Consultative Assembly of the Council of Europe1. Similarly, such bodies (composed of members of the national parliaments) have been created in other intergovernmental organizations that were formed at that time (in the European Free Trade Association and the NATO). The appearance of regional economic integration organizations in other regions of the world in 70-80s of XX century has also led to an increase of number of intergovernmental organizations, including inter-parliamentary bodies in their structure.2 So, in 1979 in the framework of the Cartagena Agreement (Andean Pact) the Andean Parliament was established. The last decade of the XX century was marked by the growth of new parliamentary bodies in the newly emerging regional intergovernmental organizations. In 1991, the Parliamentary Assembly OSCE was established. In 1992, the CIS Inter-Parliamentary Assembly was established in the framework of the Commonwealth of Independent States (CIS), in 1993 the Parliamentary Assembly of the Black Sea Economic Cooperation (BSEC) and the 1



2



338

Ref.: H. G. Shermers, N.M. Blocker. International institutional law. Unity through diversity. Boston, Leyden, 2003. P. 404. Ref.: S.E. Naryshkin, T.Y. Khabrieva. Op. cit. P. 8.

Chapter VIII. Inter-Parliamentary Cooperation

Parliamentary Assembly of the Economic Community of West African States (ECOWAS) were created, and since 1996 as part of the Southern African Development Community, a special body — the Parliamentary Forum is functioning. Finally, in 2000, within the framework of the African Union (AU), which replaced the Organization of African Unity (OAU), the protocol establishing the Pan-African Parliament, which is also known as the African Parliament, was signed. The Pan-African Parliament began its work in 2004. In 1995, other sub-regional integration structure in Latin America — Mercosur established the Parliamentary Commission. The establishment in 1990s — the beginning of XXI century the sub-regional organizations in the post-Soviet space, respectively, led to the formation of parliamentary bodies within their structures (EurAsEC — Inter-Parliamentary Assembly, the Parliamentary Assembly of the Collective Security Treaty Organization, the Parliamentary Assembly of the Union of Belarus and Russia). Thus, the formation of inter-parliamentary bodies of regional organizations in Europe in the second half of the twentieth century was due to the tendency to increase the role of parliaments in international relations, which became to manifest at the end of the XIX century, and after the Second World War, the inter-parliamentary relations have evolved in the direction of extension through the involvement of new participants and increasing of the diversity of interaction1. Moreover, from the European phenomenon the inter-parliamentary cooperation gradually develops into a universal, becomes an instrument of international cooperation and in other regions of the world (Latin America, Asia, Africa). So, we can conclude that, appearing as the fruit of exclusively European civilization, the parliamentary bodies of regional intergovernmental organizations today is a frequent element of the structure of international and regional intergovernmental organizations2. Concept and sources of the parliamentary law of intergovernmental associations. The parliamentary law of the intergovernmental organizations can be understood and explained only in the framework of international law, the entities of which are MMPO. However, in contrast to the national law based on the doctrine of separation of powers, which considers the existence of a parliamentary body as 1



2



Ref.: The Parliamentary Law of Russia: Textbook / Editor-in-Chief T.Y. Khabrieva, 2nd ed., rev. and add. Moscow, 2003. P. 358. Ref.: S.E. Naryshkin, T.Y. Khabrieva. Op.cit. P. 8. 339

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a compulsory element of the democratic structure of the state, the international legal doctrine is based on «the secondary, derivative character» of the international legal personality of MMPO, leaving the question of the structure of international organizations at the discretion of their founders. In other words, the law of international organizations, as well as the general international law, was created on the basis of full respect for the principle of state sovereignty. In the international relations, the state acted on behalf of the executive authorities (governments), so the talking about the separation of powers did not make much sense. The power in international relations understood in the sense of the power of domination of one state or group of states, and its separation or distribution, usually comes down to finding a balance of powers between the major states or their unions1. Therefore, the question of whether or not parliamentary body within the structure of a particular international organization depended on the discretion of its founders. If they tried to ensure the democratic control over the activities of the international organization, or, more precisely, their governments in relevant international organizations, through the participation of representatives of the peoples of the members-states, they were going toward creation of the parliamentary body within the structure of international organization. At the same time, if they believed that the participation of people in the solution of specific issues of international organization is not necessary or related socio-economic or political conditions do not matured to it, then in the international organizations there were no place to parliamentary bodies or bodies of the inter-parliamentary cooperation. It should be said that with the lapse of time the transformation of the nihilistic views on the role of parliamentarism in international relations and, consequently, in international organizations has happened. The globalization has given an impetus to a number of international organizations with a greater respect for democratic values in international relations and use for solving their problems potential of parliamentarism which is still little in demand, as detailed above. Considering the concept of parliamentary law of intergovernmental organizations as a new scientific category, having to reflect the changes in views on the role of parliamentarism in international relations and its im1



340

A detailed analysis of the western political science concepts of «rule of force in international relations» of the XX century is given in: G.I. Tunkin. The right and the power in the international system. Moscow, 1983. P. 88–94. Modern theories of the role of military power and the balance of power in world politics (including the American political science approaches to the issue of the use of force) are set out in the work: Military force in international relations: Textbook / Editor-in-Chief V.I. Annenkov. Moscow, 2011. P. 43–57, 227–342.

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portance for the further development of the institution of an international organization occurred in recent decades, it should be noted that the term «parliamentary law of international organizations» was used at the dawn of their formation. Even in 1962, the English jurist W. Jenks, one of the founders of the concept of the law of international organizations in his study «internal law of international organizations» identified a group of legal rules — the law of international parliamentary organizations1, which belong to the norms that establish rules of procedure for decision-making of the MMPO bodies, in other words, the procedural norms. By this logic, the parliamentary law was inherent to all types of MMPO, which do not even have a special parliamentary bodies. In addition, the procedural norms are used not only in the work of parliaments; their scope is much wider, which makes it impossible to agree with his approach to the concept of «parliamentary law of international organizations». We believe that the parliamentary law of interstate associations is a set of norms and principles of international law which regulate the international legal status, internal structure of parliamentary MMPO bodies and organizational relations, the process of international parliamentary activities (functions and responsibilities of parliamentary bodies), relationships with other bodies of the international organizations and national authorities of the members-states and public authorities (usually parliament) of third states in relation to the international organization. In the international law, all norms and principles governing the activities of the parliamentary MMPO bodies refer to the law of international organizations, which rules govern issues concerning the MMPO structure. From this point of view it is prematurely to talk about the parliamentary law of interstate associations as a special branch of international law. Rather, the given set of rules and principles is a branch institute of general international law — the law of international organizations. This conclusion is justified both as a relatively low prevalence of parliamentary bodies in structure of international organizations and a very close connection between these legal bodies and legal order of any particular international organization. However, it should be borne in mind that the rules of parliamentary law of interstate associations have a different nature. This is because they are contained in the various sources of international law. Some rules are present in the international treaties (constituent instruments of interstate associations themselves or parliamentary bodies of these organizations), others (mainly regulating the procedure of parliamentary bodies) are either in 1



См.: Jenks C.W. The Proper Law of International Organizations. L., 1962. P. 4. 341

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legally binding acts of the supreme bodies of the intergovernmental organizations or acts of parliamentary bodies of these associations. In any case, the legal effect of the norms contained in these sources of parliamentary law applies only to the members–states of these associations. In fact, almost all of the founding agreements of the intergovernmental associations include special provisions or articles on the parliamentary bodies. In the Charter of the CIS the provisions on the Inter-Parliamentary Assembly is included not in Section VI «Government of the Commonwealth», but in section VII «Inter-parliamentary cooperation». The Inter-Parliamentary Assembly carries out the parliamentary consultations, discusses issues of cooperation within the Commonwealth, and develops of joint proposals in the sphere of activity of the national parliaments. The Inter-parliamentary Assembly consists of parliamentary delegations. Activity arrangement is exercised by the Council of the Inter-Parliamentary Assembly of the Assembly, composed of the heads of the parliamentary delegations. However, in the Agreement of the Eurasian Economic Community establishment of October 10, 2000, this situation is changed, and the Inter-Parliamentary Assembly referred to in Art. 3 «Bodies» as one of the bodies ensuring the continuity of bodies previously established by contracting parties which are intended to control the process of integration for the purposes and objectives of the memorandum of association. The Article 7 of the Agreement stipulates that the Inter-Parliamentary Assembly is the body of parliamentary cooperation within the framework of the Eurasian Economic Community, considering the issues of harmonization (convergence, unification) of the national legislation of the contracting parties and bringing it into line with the agreements concluded in the framework of the Eurasian Economic Community in order to achieve the objectives of the Community. More specific rules concerning the procedures of parliamentary bodies, are contained in the acts adopted by bodies of the inter-governmental associations or in the acts of parliamentary bodies themselves. Thus, the Statute of the EurAsEC Inter-parliamentary Assembly is approved by the decision of the supreme body of the EurAsEC — Interstate Council on May 13, 2002 No. 52. In turn, the Inter-Parliamentary Assembly of the Eurasian Economic Community approved its own Regulation by its decision of November 2, 2002 No. 3-7. The content of these two documents is different. The Statute of the EurAsEC Inter-Parliamentary Assembly defines the goals, objectives and competences of the Assembly, the composition and the procedure for the formation, organization and procedure of its activity, the composition and procedures of the Bureau of the IPA, as well as financial and other support of the MPA. 342

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The Regulation of the IPA provides the composition of the IPA, including delegations from the national parliaments, the competence of the Assembly, its structure, the status of the Chairman of the IPA and his deputies, the status and powers of the Bureau of the IPA, the status of permanent and temporary committees of the Assembly, the organization of its activities, issues on the agenda of its meetings, the rights of the spokesmen, the arrangement procedure of the meeting, the proposals for the procedure of work, the procedure of decision-making of the Assembly and the quorum required for this, development, review and implementation of the legal framework, the typical drafts and other acts, the procedure of participation in the work of the Assembly of other structures (bodies of the Eurasian Economic Community, the third states and other bodies, including third countries and international organizations), the working language, funding and other support activities. In turn, the IPA Bureau of EurAsEC adopted by its decision of November 15, 2006 No. 8 the Provision on the Secretariat of the IPA, which regulates the different aspects of the activities of the Secretariat of the IPA of EurAsEC, such as the composition and structure of the Secretariat functions, powers and status of the executive secretary, powers, duties and responsibilities of officials and staff of the Secretariat of the IPA, the status and social guarantees of officials and staff of the Secretariat of the IPA, the issues of financial and economic activities of the Secretariat. On the example of the legal regulation of the IPA of EurAsEC, we can conclude that most of the issues of the parliamentary law of this interstate organization are regulated both by the acts of the domestic law of the supreme bodies of the Eurasian Economic Community and also directly by the acts of the Inter-Parliamentary Assembly, which is evidence of a significant role of the parliamentary bodies of intergovernmental organizations themselves in the formation and development of the parliamentary law of international organizations. Of course, the ratio of conventional international and internal regulation within various international organizations is different and depends on many factors. In some cases, the parliamentary bodies of the intergovernmental associations were created on the basis of the separate agreements. For example, on October 25, 1979 in La Paz (Bolivia) the Agreement on establishment of the Andean Parliament and on its inclusion in the structure of the Andean Community1 as an advisory body of the Community was signed. The agreement entered into force in 1984. In April 1997, a Protocol on amending the Agreement on establishment the Andean Parliament and the Additional Protocol on the direct and 1



Currently, the Andean Community is appointed the «Andean Integration System». 343

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general election of the representatives, establishing the procedure for the direct and general election of its representatives in the members-states of the Andean integration system were adopted. The procedural issues were regulated in detail in the General Regulation of the Andean Parliament, adopted by the Parliament in August 2006. In the case of the CIS the Agreement on the establishment of the Inter-Parliamentary Assembly was signed in 1992 by the heads of the national parliaments of the states parties and only in May 1995, the heads of CIS states signed the Convention on the Inter-Parliamentary Assembly of the members-states of the Commonwealth of Independent States, which has become an international legal basis for the activities of this body of the Commonwealth. Concerning the Regulations of the IPA of the CIS, it was adopted by the Resolution of the Assembly in 1992. The composition of the parliamentary bodies of the intergovernmental organizations. Because the parliamentary bodies are the part of the structure of intergovernmental organizations of sovereign states, the question of the principles and procedures of their formation is crucial to the success functioning of these international organizations. The main purpose of the inclusion of bodies of this type into the structure of interstate associations was to ensure the integration of the most important sectors of public opinion — the members of such associations and representation on an equal basis of the population of these States. If these objectives are considered and implemented in isolation from each other, they will not achieve the same result. There are times when the major political parties of smaller members-states receive in the parliamentary bodies of the Interstate Association fewer seats than parties that represent the political minority in the large members-states. Thus, in determining the number of deputies of the parliamentary bodies of intergovernmental organizations, both objectives of their formation shall be taken into account. The Inter-Parliamentary Assembly of the Commonwealth of Independent States consists of parliamentary delegations of the members-states. The parliamentary delegation of each member-state shall have one vote unless the Parliamentary Assembly decides otherwise. The decisions of the Inter-Parliamentary Assembly on the discussed issues are adopted by the parliamentary delegations participating in the meeting and voting in accordance with the Regulation. The decisions of the Inter-Parliamentary Assembly can only be taken at its plenary sessions. Thus, the constituent documents of the IPA of the CIS do not establish the quantitative limitations to the national delegations. The objectives of 344

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the representation of the national interests is achieved by providing the right of each delegation to vote on the issues. The Inter-Parliamentary Assembly of the Eurasian Economic Community (EEC) is formed from the parliamentarians delegated by the parliaments of members-states of the Community. In contrast to the IPA of the CIS in the Assembly of the Eurasian Economic Community the number of national parliamentary delegations is established. So, for the Republic of Belarus it is 16 parliamentarians, for the Republic of Kazakhstan — 16, for the Kyrgyz Republic — 8, for the Russian Federation — 42, for the Republic of Tajikistan — 8 parliamentarians. In the European regional organizations, the following situation is observed. The formation of the parliamentary body (the Consultative Assembly) was a reflection of the Franco-Belgian position in the negotiations on the establishment of the Council of Europe, at which the Assembly was offered as the main body, consisting of the representatives of the parliaments of the members-states. Although as the result of the reached compromise the Consultative Assembly began to play a more modest role, its creation has been important for the further development of institute of inter-parliamentary cooperation in intergovernmental associations. From the beginning, in the Council of Europe the large and small members-states were distinguished. Initially the biggest members-states got 18 seats (France, Italy, UK), 7 seats were assigned to Belgium and the Netherlands, 6 seats — Sweden, 5 seats — Denmark and Norway, 4 seats — Ireland, finally, 3 seats received Luxembourg. With the expansion of the Council of Europe the number seats of the separate countries has changed. In particular, the low threshold was determined in two seats, and intermediate number of seats was increased. Currently, the Parliamentary Assembly of the Council of Europe (PACE) includes 318 members (representatives) and 318 deputies. The number of the representatives varies from two (Andorra, Liechtenstein, Monaco, San Marino) to 18 (Germany, France, Italy, Russia, Great Britain). In between are states that have three, four, five, six, seven, ten, and twelve representatives. However, it should be borne in mind that the distribution of seats in the PACE is not proportionate to the population of the members-states of the Council of Europe. Rather, it is the result of a compromise between the members-states. The parliamentary bodies of other European intergovernmental organizations on the issue of the formation of the membership take as the sample the PACE. Thus, the Parliamentary Assembly of the OSCE consists of 317 members, the number of representatives in it from a single member-state varies from 17 (the USA) to 2 (Andorra, Liechtenstein, Monaco 345

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and San Marino). The European Parliament of the EU stands apart. The fact that initially the European Communities also followed the model of the PACE. For example, the ECSC Assembly consisted of 71 members, 18 seats were allotted to the large countries (Italy, France, Germany), 7 (Belgium and Netherlands) and 3 (Luxembourg) — to the small. Thus, the large members-states have agreed to a slight increase in seats for small states in order to eliminate concerns about the dominance of the major powers. When the EEC and Euratom were created in 1957, the number of seats in the Assembly for all members-states of the community has been doubled in comparison with the Assembly of the ECSC. Since 1979, the members of the European Parliament of the European Communities began to be elected directly by the population of the members-states, and the total number of its members increased significantly. In 1995, the European Parliament consists of 626 members and the supreme representation of the small countries is slightly reduced. Currently, the European Parliament of the European Union consists of the representatives of the citizens of the Union, number of which up to 2014 was 754, and in 2014 — 751 people. Accordingly, the principle of formation of this EU institution is changed. The representation of citizens in it is provided in accordance with the method of the decreased proportionally with a minimum threshold of six members per member-state. Using this method of the relationship between the quotas (number of deputy mandates) for the different members-states should reflect the ratio between the size of their population, but in a smaller and decreasing scale. It was found that a member-state cannot have less than six and more than 96 seats in the European Parliament. The procedure of formation of the parliamentary bodies of the intergovernmental associations. The procedure of formation of the parliamentary bodies of the intergovernmental organizations played an important role in determining the legal status of these bodies and places of these bodies in the structure of these international organizations. As already mentioned, the membership of the parliamentary bodies of the interstate associations, with the exception of the European Parliament of the EU, whose members from 1979 began to be elected directly by the population of the members-states, is formed by the national parliaments of the members-states, either by the election or by the appointment of their members. In some cases, such as in the Agreement the Andean Parliament establishment of in 1979, it was set forth that it represents the interests of the peoples of the Andean Community, and its members are appointed by the national parliaments of the states-members of the Andean Community. However, it provided that in the future they will be elected by direct and 346

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secret voting by the population of their countries. The Additional Protocol to the Agreement of the establishment of the Andean Parliament set forth the procedure for the election. In 1997 the new Protocol was adopted which amended the Agreement of the establishment of the Andean Parliament and the Additional Protocol to it. It set forth the procedures for carrying out the direct and general election of members of the Andean Parliament. Currently, two membersstates of the Andean Community (Ecuador and Peru) conduct the direct election of members of the Andean Parliament. The principle of the appointment of the deputies of national parliaments to be a member of the parliamentary body of interstate associations should reflect the political composition of these parliaments, but this rule is not always observable. Thus, the Italian Communists were first appointed to the European Parliament only in 1969, although they had more than 20% of the seats in the Italian Parliament. The formation of the parliament of interstate association through the appointment is more usual procedure. Thus, in the IPA of the CIS the national parliamentary delegation is composed of the representatives of the member-state, elected or appointed by the parliament of the member-state of this Convention from among their members in accordance with its internal regulations and procedures. The parliamentary delegation is chaired by the head of the parliamentary delegation. Volume, duration and procedure for termination of the powers of the parliamentary delegation of the member-state are determined by this member-state in accordance with its internal regulations and procedures. The EurAsEC Inter-Parliamentary Assembly is formed from parliamentarians delegated by the parliaments of members-states of the Community in accordance with their internal regulations and procedures. The powers of the delegated parliamentarians and their term of office are determined by national parliaments. Where necessary, the powers may be delegated to another member of the Assembly of Representatives of the National Parliament. According to the Statute of the Council of Europe, the PACE members are elected or appointed by national parliaments from among their members in accordance with the procedures set forth by them. The government of any member-state of the Council of Europe can make the additional assignments, if the national parliament is not in session and has not established the necessary procedures for this case. Each representative must be a citizen of a member-state, which he represents, but he cannot simultaneously be a member of the Committee of Ministers of the Council of Europe. The number of parliamentarians from each country varies from 2 to 18, depending on its population. The com347

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position of the national delegations in the Assembly should reflect in proportion all the main political forces or groups represented in the national parliament. The internal organization of the parliamentary bodies (the parliamentary associations and parliamentary groups). As a rule, the national representation in the parliamentary bodies of intergovernmental organizations are composed of representatives of various political parties. They are convinced that they represent in international parliamentary bodies not their own state, but the principles on which their political parties are based. The members of such parliamentary bodies organize themselves into political groups. In some interstate associations this rule is typically elevated to a political principle. Thus, the rule that political parties at the European level contribute to forming the European political awareness and will expression of the citizens of the Union is enshrined in the founding agreements of the European Union. In order to regulate the activities of the political parties, the European Parliament and the Council, acting in accordance with the regulations of the ordinary legislative procedure, shall establish the status of political parties at European level and the regulations for their funding. Currently, several political factions are formed in the European Parliament of the EU: the European People’s Party — the conservatives and the Christian Democrats; Progressive Alliance of Socialists and Democrats — the Social Democrats and the Socialists; Alliance of Liberals and Democrats for Europe — liberals; Greens — European Free Alliance — ecologists and regionalists; European Conservatives and Reformists — conservatives who oppose the federalization of the EU; European United Left / LeftGreen North — Left socialists and communists; Europe of freedom and direct democracy — the nationalists and Eurosceptics; other factions; independent deputies of the European Parliament, working out of the factions. A number of factions and a group of independent deputies. is also formed in the PACE. In particular, there are factions of the European People’s Party, the Socialists and European Democrats, the Unified European Left, Alliance of Liberals and Democrats for Europe. In other intergovernmental associations, such as the OSCE, the factions are not formed. The functions of the parliaments of the intergovernmental associations. The constituent documents of intergovernmental associations establish the basic functions that are assigned to their parliamentary bodies. As a rule, the parliamentary bodies play a very modest role in the activities of the intergovernmental organizations. The most important function of them 348

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is to provide the opportunities for mutual consultations and cooperation among members of the national parliaments. However, the powers of the parliaments of the intergovernmental associations can be classified as follows: control over the activities of the political bodies of the intergovernmental organizations, control over the budget of international organizations, as well as advisory and normative functions. The scope of powers of the parliamentary bodies of various interstate associations in the exercise of these functions will depend on the nature of the tasks assigned to such associations.

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§ 1. The machineries and the subsidiary bodies of the Chambers of the Federal Assembly, the legislative bodies of the subjects of the Russian Federation

For more than 20 years, the parliamentary democracy has been developing in Russia. During this period, the State Duma has completed one of the main tasks — it managed to create the legal framework for the country’s development in the market economy environment. During the functioning of the State Duma of the sixth convocation there is the awareness that a new law-making cycle has began — the State Duma and the Council of Federation come to a significant phase of their activities. This is a greater openness to civil society, and the strengthening of intra-factional dialogue, and the widespread use of independent expertise. The new law-making cycle, that is often cited by many leading legal scholars1, is primarily related to the fact that after two decades, a new generation and a new law-making tradition are coming. Among other characteristic features of the new law-making cycle are the strengthen of the role of the State Duma in the political system of the Russian Federation not only as a legislative body, but also as an intellectual center, the desire to thoroughly discuss the key draft laws with the participation of deputies of opposition factions and the expert community, increased demands on professionalism deputies, as well as special attention to the observance of the norms of parliamentary ethics. In this regard, there is a need to think about the effectiveness of parliamentarians, activities of the Federal Assembly, and the development of their legislative machineries as the subsidiary bodies. The legislative machineries (subsidiary bodies or structures) are formed and function in order to ensure the activities of the Federal Assembly, the legislative (representative) bodies of subjects of the Russian Federation. As the well-known Russian lawyer Korkunov N.M. mentioned, «referring to the actual organization of the state institutions, we see that one of them decide how to dispose the entrusted to them function of the power, the others — only assist to the decision-makers. Therefore, the organization 1



350

Ref.: S.E. Naryshkin, T.Y. Khabrieva. To the new parliamentary dimension of the Eurasian integration // Journal of Russian law. 2012. No. 8. P. 5

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of public institutions is composed of bodies of dual form — decision-maker and facilitatory»1. Under the Machinery of the Parliament (Chamber), its internal standing body composed of civil servants and other employees, which performs the functions of organizational, legal, informational and analytical, welfare, logistical and other support activities of the Chamber and its deputies (members) and divisions is understood. It should be noted that the characteristic of the machinery as a support structure has the largely conventional nature. Thus, some researchers have explained the ancillary nature of the machinery by its assistance in the execution of powers of authority, but not by vesting with them; others — with the temporary nature of its activities in connection with the establishment solely to provide organizational and technical assistance to the chambers of parliament. Providing the scientific, organizational and technical support to the activities of parliament as a whole, its chambers, committees (commissions) and members of the parliament, such subsidiary bodies perform the coordinating, advisory, expert and other functions. At this, these bodies assume the presence of a variety of support services of the collegial bodies — parliament as a whole or of each of its chambers, committees (committees) formed within the parliament (chamber) and personal assistants (referents), secretaries of the parliamentarians. It should be noted that the machinery of the collegial bodies, as a rule, has a vertical structure within which the support departments created under the bodies with greater amount of competence (chamber as a whole) coordinate the activities of departments in the bodies with less competence (committees (commissions)). However, the assistants, secretaries of the parliamentarians only execute instructions of the parliamentarians (defining their tasks and functions), and operate independently of any other subsidiary bodies and departments. The theory and practice of the Russian parliamentarism draw the attention of the lawyers2. Along with the studies, which dealt with general issues of Russian parliamentarism, the studies of specific problems concerning the activities of the Russian Parliament, including those relating to its formation and support of its activities are appeared3. 1



2

3



N.M. Korkunov. Lectures on the general theory of law. St. Petersburg, 1894. P. 249–250. Ref.: V.V. Hrib. Application of citizens to the state and local authorities as an effective impact on the legal form of public power // Legal World. 2010. № 12. P. 20–23; Parasyuk E.A. Modern legal research of the concept «parliamentarism» // the Russian justice. 2012. № 3. P. 63–64; I.V. Hrankin. Features of formation of parliamentarism in the Russian Federation // Government and local self-government. 2010. № 12. P. 16–18, etc. Ref.: A.V. Khamukov. The law-making process and the legislative process: a distinction and correlation // the Russian justice. 2010. № 6. P. 49–52. 351

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But if the issues of the parliament and parliamentarism constantly attracted the attention of scientists, then they look to the «machinery» problem much less1. In the last decade the studies were published, which subject are the theoretical insights related to the functioning of the state machinery, including the Duma and its machinery — the structure, providing the State Duma’s and its own activities2. However, beyond the existing studies there are still a lot of unexplored issues, including the formation of regulatory and legal framework for the activities of the machineries of the Federal Assembly, determining criteria of the effectiveness of their performance, improving the legal and information-analytical support of the Chambers and separate parliamentarians and others. Thus, in accordance with the Regulations of the State Duma, the activities of the Machinery of the State Duma, the rights, duties and responsibilities of the civil servants, replacing the posts of civil service of the State Duma, and employees of the State Duma are determined by the legislation of the Russian Federation, the Provision on the Machinery of the State Duma, the Service Regulations of the State Duma Machinery, the provisions on subdivisions of the State Duma Machinery, the orders of the Chairman of the State Duma, the decisions of the Committee of the State Duma on Regulations and Organization of the State Duma and the orders of the Head of Machinery of the State Duma3. Thus, the general issues of activity of the Chambers of the federal Parliament and the status of their Machinery are determined primarily by the relevant regulations of the Chambers, which are then developed by the special intra-parliamentary regulators. The relevant acts of various internal bodies of the Chambers of Parliament are taken. Thus, the Regulation on the State Duma Machinery is approved by the order of the Chairman of the Chamber of the Federal Assembly with the agreement of the Council of the State Duma (such an order was established by the State Duma of the first convocation at the beginning of its activities). The administrative procedure of the State Duma (prepared by the Machinery) is agreed with the Committee of the State Duma on Regulations and Procedural Organization of the State Duma and approved by the 1



2



3



352

Ref.: A.P. Berdashkevich, Z.I. Elkibaeva. On the legal status of the units of regional government and municipal authorities // Government and local self-government. 2012. № 8. P. 12 Ref.: V.I. Shevelev. Office of the State Duma — representative and legislative body of the Russian Federation (theoretical, historical, legal, political and legal aspects of the organization and activities): Abstract. Ph.D. Moscow, 2003 Ref.: Resolution of the State Duma of the Federal Assembly of the Russian Federation of January 22, 1998 № 2134-II HD

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Chairman of the Committee of the State Duma upon the recommendation of the Head of Machinery of the State Duma. The Service Regulations of the Machinery of the State Duma, the provisions on administrations of the State Duma’s Machinery, as well as standart provisions on the faction’s machinery, committee’s machinery, commission of the State Duma are approved by the Head of the State Duma in coordination with the Committee of the State Duma on Regulations and Procedural Organization of the State Duma. Such acts are placed in the stock of the electronic information resources of the State Duma. In general, these acts have similar characteristics, namely: focus on the regulation of procedural relations, the presence of a local subject of regulation, derivative and secondary nature in relation to the basic legal acts determining the directions of the intra-parliamentary supporting activity. At the same time the Constitution of the Russian Federation and federal laws can be referred to the basic legal regulators, which serve as the primary legal basis for the activities of the Chambers of the federal Parliament. The functioning of the legislative machineries are generally provided by the civil servants. The civil service is understood as the form of public service, which is a professional office activity of the Russian citizens in positions of state civil service of the Russian Federation to ensure the execution of federal government agencies, state authorities of the Federation, persons holding public positions of the Russian Federation, and persons holding public positions of the regions of the Federation1. At the same time the attraction of the staff under labor and civil contracts is possible. The State Duma, the Council of Federation and their machineries are the developing «organisms» requiring periodic «adjustment». At this, the structure of the State Duma and the Council of Federation remained virtually unchanged since its creation, and in this case it is difficult to agree with the statement that «stability — is a sign of professionalism»2. In Russia, all Dumas of the pre-revolutionary convocations had their machineries. The history of this body was most thoroughly studied by V.A. Demin. In his monograph, the author wrote that the establishment of the First State Duma in 1906 assumed the establishment of its machinery, consisting of the Chancellery of the State Duma and Pristavskaya fraction. The staff schedule of these departments (and other public institutions) was subject to publication and consideration in the legislative procedure. The Chancellery was in charge of documentary maintenance of the Chamber: it was headed by the Secretary of the State Duma, who had the right 1 2



Collection of laws of the Russian Federation. 2004. № 31. Art. 3215. Ref.: R.M. Romanov. Where to take the erudite? Notes on the parliamentary Machinery that have we and other countries // Russian Federation today. 2001. № 7 353

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to appoint and dismiss other officials. In the case of the early dissolution of the State Duma its machinery is temporarily placed under the authority of the Secretary of State. Until 1908, the Duma’s officials worked on a free employment without the rights of public service. They were not raised to the civilian ranks; they did not wear the uniform and could be fired at any time. In the summer 1908, the both Chambers approved the staff of the Chancellery of the State Duma, and the Emperor Nicholas II affirmed it either. This law vested the senior and the middle officials in civil service’s rights in order to ensure the stability of the machinery and its independence from the party struggle in the Duma. According to the law, they had to have a higher education and to serve at least three years in the state, nobility, land and municipal service. Women were allowed only to correspondence, accounting activity and distribution of the books. The students, persons deprived of their electoral rights of defamatory facts, as well as foreigners were not allowed to give employment in the machinery. In 1907–1908 candidates for appointment were checked by the police for reliability and can be discharged by it without explanation. The officials of the State Duma were not allowed to engage in business and other activities prohibited by the Meeting of the Duma. They also couldn’t be members of political parties and organizations, publish the works of «political character». In 1908, the Meeting banned the officials to be engaged in paid activity of other agencies, allowing the unpaid one only with its approval. In 1912, the Meeting allowed them to publish works on the activities of the Duma, but they had to get a special approval. The State Duma’s officials were subject to the provisions of the Charter of the civil service, with some exceptions. In particular, the appointment to the position of persons who had no rank was allowed. In 1906, the Chancellery of the State Duma consisted of 14 small departments. The Secretariat of the Chairman of the Duma was functioning along with the Chancellery. Its competence was closely intertwined with the competence of the Chancellery that caused numerous disadvantages. In 1907, the Chancellery of the Second State Duma, having joined with the Secretariat of the Chairman, was divided into two departments. The first of them (the General Chancellery — since 1908, the department of the General Meeting and General Affairs) took conduct of the private affairs of the Duma and its officials, provided the activity of the General Meeting of the Duma, its departments and non-legislative committees, made the transcript of the Duma’s sessions, engaged in correspondence of the Chairman and Secretary of the Duma, the Duma’s library (up to 1908), and others. 354

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The department included a large amount of the Duma’s officials. Its head (up to 1908 it was the Head of the Chancellery) conducted the affairs that had significance for the whole of the Duma. During the meetings of the Duma, he helped the presiding person, told him the contents of the Instructions and draft laws, provided the necessary documents and conveyed the instructions. The head of the department presided over a meeting of senior officials of the machinery (the heads of departments of the Chancellery, sergeant at arms, librarian and clerk of housekeeping unit) who met «for discussion or settlement of clerical and housekeeping affairs». The second (legislative) department was the machinery of legal and financial committees: drew up reports of their meetings, and reports on their activities, checked the draft laws for formal correctness (accuracy of references to laws, the lack of internal contradictions, etc.), inquired about the domestic and foreign legislation, identified the reverse by the relevant draft laws, systematized reports of the State Audit, classified the budget appropriations. In 1906, by the decision of the First Meeting of the State Duma a library was established in the Chancellery, which in 1908 became an independent department of the Machinery of the State Duma. Also a medical (1908) and housekeeping (1911) departments were established. The latter monitored the State Duma premises’ conditions1. All legislative bodies of the state power had the subsidiary machineries during the existence of the USSR (the Congress of Soviets of the USSR, the Central Executive Committee of the USSR, the Council of People’s Commissars, and the Congress of People’s Deputies of the USSR, the Supreme Soviet of the USSR). Thus, according to the Provision on the Machinery of the Supreme Council of the USSR2, the Machinery of the Presidium of the Supreme Council provided the activity of the Supreme Council, its Presidency and its commissions. The Machinery, which consisted from more than ten departments, directly reported to the Chairman of the Presidium. The Machinery was assigned the functions of the organizational, legal, informational and material-technical support. The history of modern Parliament, its Chambers and their Machineries began in 1993, with the adoption of the Constitution of the Russian Federation, which provides the formation of the new Parliament — bicameral Federal Assembly, as the supreme legislative and representative body3. 1 2





3

The State Duma of Russia: Encyclopedia: In 2 v. V.1. The State Duma of the Russian Empire (1906–1917). Moscow, 2006, P. 246 Bulletin of the Supreme Council RSFSR. 1984. № 32. P. 1102. Ref.: Lyubimov A.P. Parliamentary Law of Russia. Moscow, 2002; Stepanov I.M. The constitutional system of Russia // Questions of parliamentary law. Vol. 2. Moscow, 1995. P. 7 355

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On January 11, 1994, both Chambers of the Federal Assembly — the Council of Federation and the State Duma — went into their first meetings. After considering the results of the meetings the need to make adjustments to the activities of Chambers in order to improve the order and organization was revealed. The temporary Machinery of the Federal Assembly, established in accordance with the Presidential Decree of October 8, 1993, could not fulfill this task. This was primarily due to the fact that the Chambers were assigned the different functions. Moreover, at the beginning of the meetings of the Chambers, the question of their placement was not resolved; they occupied different buildings. In contrast to the idea of forming of a single Machinery of the Federal Assembly, the Chamber took the decisions on the creation of their own machineries. Moreover, the entered into force the new Constitution of Russia granted the right to each of the chambers to independently adopt their own regulations and solve the matters of procedure for their activities (p. 4, Art. 101). This was in line with international practice. In many countries, the procedure for the formation of the subsidiary bodies and their activities (depending on the level of the body) are determined by the regulations of the chambers of the parliaments, the bureau of chamber, committee, the provisions on the deputy’s assistants. Thus, Art. 67 of the Regulation of the Chamber of Deputies of the Italian Parliament provides that the services of the Chamber are formed by the decision of the Bureau of the Chamber, and their guidance performed out by the General Secretary in charge (before the Chairman of the Chamber) for their activities. The similar provisions are contained in the regulations of the chambers of the parliaments of other states (Art. 15 of the Regulations of the Finnish Parliament, Art. 15 of the Regulations of the French National Assembly, Art. 14 of the Regulations of the National Council of Austria, Art. 7.4 of the Regulations of the German Bundestag)1. On February 3, 1994 the Council of Federation adopted a resolution No. 42-I SF, according to which the structure of its Machinery was approved and it was provided that the Machinery has the status of a legal entity. The structure of the Machinery was formed by the decision of the Council of Federation of February 2, 1994 No. 35 -I SF «On the Regulation of the Council of Federation of the first convocation». The Machinery consisted of the machineries of the Committees, the Secretariat of the Chairman of the Council of Federation, the Secretariat 1



356

Ref.: Machinery of the foreign parliaments: legislative provision of its structure and main activities (information-analytical review) // Analytical Bulletin. 1999. 20 (108). P. 8.

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of Deputy Chairman of the Council of Federation, the departments of legal, information and technologic, financial and economic support, personnel department, head of the Secretariat and other support services (Art. 85). Before the establishment of the State Duma Machinery two organizational structures were formed: Interim Secretariat and the Interim Commission for the Regulations. With the creation of the Committee on the Procedural Organization of the State Duma the functions of the Secretariat and the Commission passed to it. In accordance with the Provisional Regulations, the Committee had to control the activities of the State Duma, including the preparation and preliminary consideration of draft provisions on the Machinery, its structure and staff. On January 20, 1994 the State Duma adopted a resolution No. 18-I GD according to which the Chairman of the State Duma was entrusted to form a working Machinery of the Chamber. The preparation of the draft provisions on the Machinery of the State Duma and the proposals for its structure and staff were imposed on the Committee on the Procedural Organization of the State Duma. On February 4, 1994 the President of the Russian Federation B.N. Yeltsin by his decree of January 20, 1994 No. 172 «On the Abolition of the Machinery of the Federal Assembly of the Russian Federation» eliminated the Temporary Machinery of the Federal Assembly1. The decree provided that, in connection with the decisions of the Council of Federation and the State Duma of January 15, 1994 and January 19, 1994 on the newly created machineries of the Chambers, the Machinery of the Federal Assembly, created prior to the activities of the Council of Federation and the State Duma as a temporary working body, is eliminated. In this regard, the previous acts of the President of the Russian Federation (Decree of October 8, 1994 № 1614 and Order of November 24, 1993 № 747-rp on the establishment of a temporary working body of the Federal Assembly) ceased to be in force. On February 4, 1994, the structure of the Machinery and its number of staff was approved by the State Duma’s Decree No. 47-I HD «On Provision of Activity of the State Duma». In addition, the Machinery of the State Duma was endowed with legal personality by the same decree. On February 10, 1994, in concurrence with the Council of the State Duma, as it provided by p. 5 of the State Duma’s Decree «On Provision of Activity of the State Duma», the Chairman of the State Duma approved the Provision on the Machinery of the State Duma2. 1



2

SAPP. 1994. № 4. Art. 307. Ref.: Minutes № 8 of the meeting of the Council of the State Duma of February 10, 1994. Archives of the State Duma. Op. cit. 7 P. 8. D. L. 70. 357

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Therefore, by the normative legal acts adopted in the first half of 1994, the legal basis for the organization and functioning of machineries of the Chambers of the Federal Assembly was created. At present, the Regulations governing the procedure for the formation and functioning of the machineries of the Chambers of the federal Parliament and its departments are based on the norms of the relevant regulations of the Chambers. At the same time the rules of regulations governing the procedures of the functioning of the machineries, are conventionally divided into three groups: specifically defining the status of the machinery of the chamber, enshrining the rights of the individual entities in relation to the machinery, defining the rights and responsibilities of the machinery and its officials. So, in the Regulation of the Council of Federation, approved by the decision of the Chamber on January 30, 2002 № 33-SF, the rules defining the status of the Machinery are contained in Chapter 11 of the Regulation, specifically dedicated to the Machinery of the Council of Federation, which is providing the activities of the Chamber. According to the Regulation, the Machinery the Council of Federation provides the support of the functioning of the mentioned chamber of the Federal Assembly. Among its main tasks are: –– legal, informational, organizational, analytical, documentary, financial, material-technical support of the Council of Federation and its bodies, the members of the Council of Federation; –– legal, organizational and documentary support of the conciliation procedures used to overcome differences between the Council of Federation and the State Duma, the President of the Russian Federation, the Government of the Russian Federation; –– legal, organizational, informational, analytical, protocol and passport and visa support of intra-parliamentary relations; –– organizational, informational and documentary support of the members of the Council of Federation dealing with the individual and collective appeals of citizens addressed to the Council of Federation. The Machinery of the Council of Federation is accountable to the Council of Federation and its Chairman. At this, the administration of the Machinery is performed by the Head of the Machinery of the Council of Federation, who is appointed by the order of the Chairman of the Council of Federation on the term of office with the consent of the Council of the Chamber and dismissed by order of the Chairman of the Council of Federation at the end of this period, or early in accordance with the procedure provided by law. The Head of the Machinery of the Council of Federation is accountable to the Chairman of the Council of Federation and shall be personally liable for the fulfillment of tasks assigned to the Machinery, has deputies (includ358

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ing the first deputy), which direct and control the activities of the structural departments, according to the distribution of responsibilities between them Chapter 9 of the Regulation of the State Duma, approved by the Resolution of the Chamber of January 22, 1998 № 2134-II, is dedicated to providing the activities of the Chamber. According to the Regulation, the Machinery of the Chamber is intended for legal, organizational, documentary, analytical, informational, financial, material-technical, social support of activities of the deputies of the State Duma factions, the Council of the State Duma, the committees and commissions of the Chamber, the Chairman of the Chamber and his deputies. Similar to the Council of Federation, the Head of the Machinery administrates its activities, at this the Machinery, as a whole is accountable to the State Duma and its Chairman. Conspicuous is the fact that the Committee of the State Duma on Regulations and Procedural Organization of the State Duma is responsible for control over the activities of the Machinery of the Chamber. It should be noted that according to their regulations the mentioned machineries of the Chambers have the status of legal entities. This legal status provides them with the opportunity to participate in the property relations, because, in accordance with Art. 48 of the Civil Code, a legal entity has the set-apart property and is answerable by its obligations with this property and may on its own behalf acquire and exercise the property and the personal non-property rights, to discharge duties and to come out as a plaintiff and as a defendant in the court. The number of staff of the Machinery of the State Duma, remuneration and conditions of material-technical support of its officials, the cost of its maintenance are determined by the Chairman of the Chamber on the proposal of the Head of the Machinery, agreed with the Committee of the State Duma on Regulations and Procedural Organization of the State Duma. In the Council of Federation, the basic requirements on the formation of staff schedule are approved by the order of the Chairman of the Council of Federation, and staff schedule of the Machinery — by the order of the Head of the Machinery on the proposal of the Office of the Machinery on Personnel and Civil Service. The staff schedule includes the posts of the federal civil service. The financial and material-technical support of the machineries of the Chambers of the federal Parliament, the conditions of material and social security of their officials, as well as other maintenance costs are defined within the limits provided by the federal budget. The rules concerning the rights of separate entities are reasonable to be shown by the example of the provisions on the powers the Chairman of the 359

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Council of Federation in relation to the Machinery of the Chamber (Art. 18 of the Regulations). Thus, the Chairman of the Council of Federation performs the general administration the Machinery of the Chamber and controls over its activities; after consultations with the Council of the Chamber approves the structure of the Machinery of the Council of Federation; approves the number of staff and staff schedule of the Machinery of the Council of Federation; with the consent of the Chamber appoints and dismisses both the Head of the Machinery and (on the proposal of the Head) the First Deputy, Deputy Heads of the Council of Federation and other officials of the Council of Federation in accordance with the Regulations on the Machinery of the Council of Federation; and etc. The establishment of the rights and duties of the Machinery and its officials are referred to the third group of the procedural norms. For example, in the Council of Federation: the draft acts introduced in the Chamber pass the legal and linguistic expertise in the Legal Department of the Machinery and signed by the officials (Art. 70 of the Regulations). The staff of the Machinery serving the electronic system are required to give a member of the Council of Federation on his written request the reports on registration, voting, the results of the open voting (Art. 76). The working groups with the involvement of the officials of the Machinery of the Council of Federation and independent experts may be established for the preparation of the draft documents by the order of the Chairman of the Council of Federation or on his behalf by the First Deputy Chairman of the Council of Federation or the Deputy Chairman of the Council of Federation (Art. 88). The machineries that support the activities of the State Duma and the Council of Federation, as well as the machineries of the legislative (representative) bodies of the regions of the Russian Federation, can be conditionally divided into the following groups: 1) the machinery of the parliament (chamber) in whole, or the «major machinery». It consists usually of a number of departments, established on functional principle (legal, analytical, economic, etc.). The tasks of the machinery essentially involve providing organizational and technical support of the activities of the Chambers of the Parliament, ensuring its interoperability with other authorities and public institutions, providing information to parliamentarians, conduction of expert-analytical studies on behalf of the Parliament or individual parliamentarians. In particular, among such departments of the Council of Federation are: Legal Department; Department of Analysis; Department of Information Technology and Document Management; Press Service; Department of International Relations; Department of Personnel and Civil Service; Department of Organizational Support; Administrative Department. 360

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The machinery of the State Duma consists of: Legal Department; Department of Analysis; Department of Organizational Support of the State Duma; Department of Information Technology and Document Management; Department of Library Stocks; Management of Public Relations and Media Relations; Department of Personnel and Civil Service; Department of International Cooperation; Economic Department; Administrative Department. The powers of these departments of the Chambers of the federal Parliament are defined in the appropriate provision, which is approved by the head of the relevant machinery of the federal Parliament. In the State Duma, this approval take place after obtaining the consent of the Committee of the State Duma on Regulations and Procedural Organization of the State Duma. One of the issues that arise from time to time in the society and in the parliamentary environment is to determine the number of staff of the chambers’ machineries required for the proper execution of not only the existing powers but the additional tasks to be solved. Further it will be said about the State Duma (hereinafter — the Machinery). At the beginning of 2015 the total number of the staff of the State Duma’s Machinery were 1810 persons. In the political publications, there is an opinion that the Machinery is «bloated»1. According to the advocates of this position, the overall low level of professional qualifications of civil officers is compensated by the unreasonably increasing of their numbers. The opponents of this view cite the example of the United States. In the US, the work of 535 parliamentarians is provided by the machinery, with about 20,000 people, of which about 3/4 is the administrative and technical staff and 1/4 is the support staff2. At the same time, such number the machinery of the US Senate has reached for the last 20 years. Apparently, despite the expected reduction of the number of draft laws introduced in the State Duma, in the future the functioning of the Machinery will be so complicated that will require not only quantitative, but also qualitative changes. Analyzing the above said the following prerequisites for such changes can be distinguished: –– the complexity of the legislative process: a new law-making cycle is characterized by a wider involvement of the public, scientific and expert 1



2



Ref.: V.V. Goncharov, S.M. Zhilin. Modern problems and ways to strengthen presidential power in the Russian Federation as a prerequisite to counter centrifugal tendencies in the government // Administrative and municipal law. 2010. № 1. P. 15–21 URL: www.govtrack.us/congress/committees/ 361

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communities in the legislative process, the introduction of elements of the regulatory impact assessment and independent expertise into the legislative process; –– more active use of the control function of the Parliament; –– increase in the number of events in terms which the representative function of the Parliament is performed and the increased demands on the quality of their preparation are put forward. It is obvious that due to these changes which are characteristic for the new legal cycle, the new tasks will arise before the Machinery. It is logical to assume that the relevant challenges will be primarily addressed to the legal and analytical services of the Machinery and to a lesser extent will affect such «conservative» departments as the General Affairs Department and Financial and Economic Department. It is permissible to say that the functioning of the State Duma as a significant intellectual center will actually require that the legal and analytical services will work in the research mode. It is typical not only for the national parliamentary system. Under the parliaments of the several countries have the special research services have been created. For example, the Research Service of the USA Congress has the great authority. It consists of eight departments (two research and six information) and specialized chancelleries 1. In the USA parliament, in the information and analytical work are carried out by almost 4,000 people, in Japan — 900 people. Such services are formed on the basis of parliamentary libraries. They have significant book and reference collections, archival materials and periodicals, electronic information sources. Their main goal is to arrange the independent research on the history and economy, as well as in the sphere of legislation, public service, international relations; acquisition of comprehensive, high-quality assessment of the submitted draft laws; elaboration of alternative solutions; forecasting of the effects of the adoption of certain decisions; computer simulation of political and socio-economic processes2. In the domestic parliament, traditionally the predominant amount of information and analytical materials of the Machinery has «post legislative» character (analytical information, newsletters, bulletins on the results of the legislative process). At the same time the qualitative analysis at the stage of elaboration of the draft law and its introduction to the State Duma is no less important. 1



2



362

Ref.: A.P. Mazurenko. Russian law-making policies: the concept and reality. Moscow, 2010. P. 392 Ref.: E.V. Okhotskiy, N.R. Baranova. Public service in the parliaments of foreign countries: general and special // Law and Politics. 2001. № 5. P. 30

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Many experts say about the need for the conduction of the independent assessment of the regulatory impact of norms proposed at all stages of consideration of the draft law (notably for all groups, levels of society, the structures of the state, but not just only for business). At this, it is important to collect and summarize the most representative opinions of the scientists, experts and practitioners in the different spheres of legal relations, which may be subject to change. In the future, it would be useful to clarify the role of the Machinery in the planning and forming of the priorities of the legislative activity. Here, it is important the supporting role of the Machinery that provide the deputies with the information necessary for decision-making. An important task aimed at improving of the quality of legislative activity is a constant monitoring of enforcement and evaluation of the effectiveness of the adopted laws. Speaking about the new law-making cycle, it is important to note that the development of Russian parliamentarism is impossible without strengthening citizens’ confidence, which depends on not only the quality and professional work of parliamentarians, effectiveness of laws, but also the daily communication with people, who personally or in writing submit the appeals to the State Duma. One of the central tasks of this trend is the fact that each of such appeal shall be considered and each question must be satisfied by a professional comprehensive answer, but not a «boilerplate letter». The State Duma, as the supreme representative body of the country, is obliged by its factions to not only represent the largest electoral group population, but also to treat every citizen with maximum care; 2) the machineries of the committees (commissions). The machineries of the committees (commissions) of the Federal Assembly are incorporated into the «major machinery», and their work is coordinated by its head. Thus, the main task of the Machinery of the Committee of the State Duma is to facilitate legislative activity of the members of the committee. The Machinery organizes the meeting of the committee, prepares its agenda, and formalizes decisions. Together with the responsible deputy the machinery prepares the draft opinions on draft laws, arranges a preliminary analysis of the amendments received during the preparation of the draft law to a second reading. The number of the machineries of the committees of the State Duma depends on the number of committee members; it is relatively small, from 6 to 26 people. For comparison: from 20,000 officers of the USA Congress about 3000 officers work in the machineries of the committees and sub-committees, which are quite a few in the Chambers of the Congress. The aver363

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age number of the personnel in the committees of the Chamber of Representatives is 72 people, in the Senate — 511. The officers of the machineries of the committee are required to have a particular competence. On the one hand, they must be well-trained professionals on the subject of the committee’s activity, such as education, culture, energy, transport and others. On the other hand, they are required to possession of thorough bundle of the legal knowledge and skills. For more than 20-year history of modern Russian parliamentarism the toolkit of the personnel work which remained insufficient, did not allow to equip the machineries of all committees by the experts of the appropriate level. As a result, not typical for the world parliamentary practice situation has come about when the draft laws considered by the Committee, received a further legal assessment for consistency with the legislation, the lack of internal contradictions, the requirements of legal technique and compliance with norms of Russian language by a special legal department. Such duplication of the functions may enhance the quality of work. However, in the most part of the foreign parliaments all legal and legal-technical support of the draft laws are assigned to the machineries of the committees. An important issue is a double subordination of the machineries of the committees. As a part of the «major machinery» the machinery of the committee reports to the chairman of the committee. The chairman of the committee may be bound by the party factional discipline. In some cases, the head of the machinery of the committee is required not only professionalism, but also integrity and diplomatic tact. Given the fact that the Government of the Russian Federation introduces more than half of all the draft laws considered by the State Duma, one of the most important functions of the machineries of the committees is providing their cooperation with the relevant bodies of executive power. The importance of this work due to the fact that the legislative and executive branches act in their own sphere and therefore have their specific interests, the conflicts arise inevitably among them which are often caused not by the difference of interest, but the lack of understanding, lack of knowledge of the intentions of the other side. Hence, a possible un-co-operation, and even discrepancies in terminology. To help the Government to find out the intentions of the legislator, to promote harmonization of the approaches of both branches of the government to the problem are the tasks often solved by the machineries. Similar functions are assigned to the machinery and the committees of the foreign parliaments. Thus, the task of maintaining the relations with the 1



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URL: www.govtrack.us/congress/committees/

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executive branch acquires special importance in those states that have chosen the presidential and mixed form of government (US, Mexico, Brazil, the Philippines and others), based on the more rigid separation of powers. If under the parliamentary forms of government the parliamentarians — ministers are in frequent contact with the parliamentarians-«backbenchers» of their party as well as with the members of parliament from the opposition, met with them in the courtroom, and the margins of the Chamber, developing positions and sometimes making arrangements on solution of problems, then where the ministers cannot be the members of parliament, such direct contacts are rare. In this case the role of the contacts at the machinery level is inevitably increased — between assistants of the parliamentarians, the personnel of the machineries of the committees (commissions) and the secretaries and assistants of the ministers. For example, in the USA the part of the personnel of the Congress is specialized in maintaining contacts with the executive branch; these people on a daily basis meet with officials from the presidential administration and the separate departments. Thus (often informally) the coordinating the positions of legislative and executive powers occur1; 3) the machineries of the officials presiding over the Chamber of the Parliament (the Secretariat). The number of such machineries are usually small (Secretariat of Deputy Chairman of the State Duma consist of 4–6 people). They are engaged in provision of the organizational and technical support of the Chairmen of Chambers, their first deputies, and deputies. In this situation, as in the case of the machineries of the committees, there is a double subordination of the secretariats. In practice, however, it produces no difficulties in work. An important element of the Secretariat of the Chairman of the State Duma is the Secretariat of the Council of the State Duma. This department is tasked with the organization of board meetings, the preparation of their agenda and registration of protocols. The Secretariat assists the members of the Council in their efforts to create the orders of the work and addressing of the various current issues of the State Duma, is an important link in cooperation and leadership committees of the State Duma, holds the initial work on the structuring of proposals to the Committee; 4) the machineries of the factions of political parties in the State Duma. These structural units are included in the main Machinery; its officers have the status of civil servants, although they are accepted for employment temporarily — until the end of the term of the faction. 1



Ref.: Constitutional (state) law of foreign countries / Editor-in-Chief B.A. Strashun. V. 1–2. General Part. 3rd ed. Moscow, 2000, P. 178 365

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The main task of the machinery of the factions is the facilitation of the State Duma deputies — members of the faction of their legislative work. The machinery of the faction organizes the meeting of the faction, prepares their agenda, formalizes decisions, provides interaction with political party factions, and arranges a preliminary analysis submitted for consideration to the State Duma draft laws for determining the attitude of the faction to a particular legislative initiative. The characteristic feature for foreign parliaments is that the machineries of the parliamentary factions and groups are not included in the structure of the parliament. Their activities are funded from the state budget, but mainly due to the relevant parties and movements. Work in these structural divisions is not the public service. The officers of the machineries of the factions have a special status, which allows them to engage in substantively providing political activities of the members of their factions. Due to its special status and financial sources, the machineries of the factions are rather large departments (in the Bundestag of Germany they account for up to several hundred employees), have a strong professional potential, highly qualified legal, political, analytical and organizational support for parliamentarians, particularly in passage of laws on all stages of the legislative procedure. As a rule, they are established and paid by the respective political party, but expenditures for their maintenance can be planned in the budget of the Parliament1. By virtue of the fact that that the Russian parliamentary factions are included in the structure of the «major machinery», a problem of double subordination is inevitably arises. On the one hand, the officers of the machineries of the factions report to head of the faction, on the other hand, to the Head of the Machinery of the State Duma. In practice, this leads either to non-interference of «major machinery» in activity of the machineries of the factions or a duplication of reporting, which reduces the efficiency of the performed work; 5) the personal machineries of the parliamentarians. They provide organizational and technical assistance to the specific parliamentarians in preparing for the meetings, their relationships with voters, other individuals and legal entities. According to the Federal Law «On the Status of the Member of the Council of Federation and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation», a member of the Council of Federation, a deputy of the State Duma may have up to five assistants employed under a time service contract or a time labor contract. The number 1



366

Ref.: V.E. Chirkin. Constitutional law of foreign countries: the textbook. 7th ed., Rev. and add. Moscow, 2012. P. 608

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of assistants to a member of the Federation Council, deputy of the State Duma which are employed under a time service contract or a time labor contract for work in the Federation Council or the State Duma respectively shall not exceed two. A member of the Council of Federation and a State Duma deputy has the right to have up to 40 assistants working on a voluntary basis accordingly in the Council of Federation and the State Duma, as well as in regions of the Russian Federation. A similar principle in respect of the parliamentary assistants applies in other countries. Thus, the officers, forming a personal machinery of the parliamentarian, may be employed at the expense of: a) the state — within a set number of assistants (Australia) or a fixed amount for their maintenance (Germany, France); b) finance of deputies (including if the employment is carried out in excess of the established limits); c) finance of a political party, which included deputy (Italy, Austria). In Argentina, Italy, Austria, the deputy is not allowed to hire his own assistants. This involved the parliamentary factions. Australia has established a fixed number of assistants; in the United States, France, Germany, a specified sum of money is allocated to the deputy, which he can spend to hire the assistants and form his office. The number of assistants is defined by the senator himself. In different countries, the number of assistants is different. In the UK, the parliamentarians practically have not the assistants besides personal secretary, working part-time, and three or four secretaries dealing with paperwork. The parliamentarians, however, is helped by the social activists: they consider complaints and requests from voters, analyze letters and applications of citizens, and organize the meetings with the congressional representatives and representatives of the business community. In the US, every congressional representative is allocated the amount for salaries and maintenance of 18 personal assistants employed to full time, and 4 assistants working on part time. Senators have even greater opportunities: many of them have from 25 to 60 assistants on a fee basis1. The Russian parliamentarians do not have such opportunity. We would like to focus on another issue, which relates to personnel matters. First, we are talking about the approaches to the determination of the size of salaries of civil servants of the machineries of the Chambers of the Parliament. In modern Russia, their salaries are traditionally lower than salaries of colleagues from the Government of the Russian Federation, the Administration of the President of the Russian Federation, many ministries. So, unfortunately, the Machinery of the Parliament often losing competition in the labor market. 1



Ref.: E.V. Okhotskiy, N.R. Baranova. Op. cit. P. 32. 367

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The issue of competitiveness is related not only to salary, but also to the prospects of career growth. In the machineries of the State Duma and the Council of Federation, in comparison, for example, with the federal executive bodies, the career opportunities are very limited, as the top positions in these structures are clearly of political nature, while the ministers are often «grow» in their own ministries, going through all the steps of the career ladder. It is interesting, that the issue of competitiveness was arisen even before the Chancellery of the pre-revolutionary Dumas. Thus, in the first half of 1908 under the chairmanship of Khomyakov N.A. in the Duma there was a special meeting, intended to prepare proposals on the status and staff of the Chancellery of the State Duma. On June 5, 1908, Khomyakov spoke at a meeting of the Duma with the report, including the proposal to approve the staffing structure of the Chancellery with a high salary for the officers. This proposal was previously submitted to the Budget Commission of the Duma for the preparation of co-report. The Budget Commission proposed to reduce significantly both the number of officers and their salaries. Khomyakov N.A. addressed the deputies and rebuked the Budget Commission. «Never, gentlemen, decide anything from a trust to whatever commission. The State Duma must not be carried away by the fact that this or that person, this or that commission elected by it, deserve our confidence, so what it says, so let it be. Do not go on this way; you believe in whom you choose, but do not believe that those whom you have chosen cannot be mistaken. I do not allow myself to say everything what I’ve said, if the Budget Commission for its part, discrediting our figures, would put forward its own forceful arguments. I cannot see these arguments in the Budget Commission’s note. Just say so: this figure is too high, and therefore it can be given less; but this is not an argument. If I am asked: but why do you feed your employees so well in the village and the neighboring landowner much worse — is it an occasion to convince me to emulate the neighboring landowner? I think not». The need to establish for the officers of the State Duma the higher salaries than people who performed similar duties in the ministries, Khomyakov N.A. motivated by the lack of the career incentives of the Chancellery’s officers. Indeed, the ministerial official in the presence of certain abilities and favorable circumstances could expect steadily climbing the ladder up in order to grow to the minister. Therefore, as Khomyakov N.A. concluded, at other things being equal, mediocre and lazy men will go for a work to the Duma who cannot bargain anything in the executive bodies1. The foreign parliaments is characterized by a high degree of legal and socio-economic security of public servants, rather precise regulation of their 1



368

Ref.: K.I. Mogilevsky, K.A. Solovyov, N.A. Khomyakov // Our liberal heritage. Moscow, 2004. Ed. 1

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legal status, duties, service and labor relations. However, much attention is paid to the moral education of the personnel, the fight against all kinds of abuse and misuse of official position. Everywhere the regulations of administrative ethics are approved, which mainly relate to the regulation of financial issues: preventing misuse of public funds and government restrictions of the additional income, proper and timely completion of financial statements, etc. There are special requirements concerning possible abuse of inside information, which are available to the employee in order of performance1. One of the possible solutions to these problems would be development of the special federal law on the Federal Assembly. Concerning the question of the effectiveness of the Chambers of Parliament, it is to be noted to the fact that such efficiency is often related to the number of draft laws considered and accepted (approved) by the Chambers. At the same time, the practice shows that the countries with high parliamentary culture are characterized by a relatively small amount of legislative work. Thus, the German Bundestag, on average, considers no more than 150 draft laws per year, with almost 80% of them in a legislative initiative introduced by the government2. Thus, it is obvious that if for the separate departments of the Machinery it may be easily to set the quantitative performance criteria, then for others only the complicated system of qualitative criteria will work. It should be recognized that the effectiveness of the chambers of the parliament in general and machineries in particular is dependent on a number of factors, including those related to the optimization of the distribution of functions among structural units of the chambers, with the immediate solution of problems facing the parliament. Undoubtedly, the improving of the efficiency of the machinery, the subsidiary bodies of the chambers of the parliament is one of the priority directions of improvement of the activity of the parliament, which largely depends on the quality of its legislative, executive and supervisory functions. § 2. Extra-parliamentary assistance to the activities of the legislative bodies in the Russian Federation

In addition to full-time officers of the Parliament (their Chambers), as well as institutions and enterprises, specially established for providing ac1 2



Ref.: E.V. Okhotskyi, N.R. Baranova. Op. cit. P. 32. Ref.: Ibid. 369

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tivity of legislative bodies, the external experts and other officers on paid or free of charge are often involved in information, legal and other support of the parliament (chambers), their departments, parliamentarians. In the federal parliament the practice of inviting the independent experts to the working groups considering specific draft laws is particularly widespread, as well as their participation in events held by the chamber, which greatly contributes to the regulations stipulated of the possibility of obtaining by the chambers of such expert-advice. Thus, according to the Regulations of the Council of Federation the Chamber may invite the representatives of the scientific institutions and independent experts, scientists and other professionals to provide the necessary information and opinions on the issues (Art. 38), the Chairman of the Council of Federation, the Council of Chamber, a Committee of the Council of Federation for preparation of the specific issues and conduction of parliamentary hearings can establish working groups involving representatives of the public associations, academic institutions, scientists and other professionals, and create advisory councils on a voluntary basis, commission an expert independent evaluation of draft laws (Art. 93); and etc. Also in accordance with the Regulations of the State Duma under the decision of the Chamber its meetings may be attended by representatives of public associations, academic institutions, experts and other professionals to provide the necessary information and opinions on draft laws considered by the Duma and other issues (Art. 37). A deputation of the State Duma in the special committee shall have the right, if necessary, to invite scholars and professionals as experts (Art. 135). Due to the fact that according to Art. 11 of the Regulations of the State Duma, the Chairman of the Duma has the right to deal with the matters of the expert, scientific, advisory and other support of legislative activity of the State Duma, there is a number of expert panels at the Chairman. In particular, the Expert Council, consisting of well-known scientists — lawyers, historians, economists and political scientists. The Council is a permanent advisory body that provides analysis and development of proposals on relevant state-legal, socio-economic, socio-political problems; it prepares specific recommendations for use in the law-making activity. The Council for Culture is a permanent advisory body that provides analysis and development of proposals on contemporary issues of legal regulation in the sphere of culture and related spheres; it prepares concrete recommendations on culture for use in the law-making activity. The Council of Investments is intended to contribute to the improvement of the investment climate in the Russian Federation by making proposals for reducing the administrative barriers, improving the quality of 370

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state regulation through the analysis of law enforcement practice and the preparation of proposals for legislative amendments in the investment sphere, including the issues of direct state involvement in separate investment projects. The Scientific Council on Lawmaking is a permanent advisory body on issues related to the expert support of the legislative process in the State Duma and the improvement of the legislation of the Russian Federation. The expert conclusions and recommendations of the Council can be prepared at the initiative of the Chairman of the State Duma. The Council on Education and Science is a permanent advisory body under the Chairman of the State Duma, which provides analysis and development of proposals on contemporary issues of legal regulation in the sphere of education and science; it makes recommendations on education and science for use in the law-making activity. The Science Coordination Council is a standing advisory collegial body; it examines the scientific and research activities for the State Duma of the Federal Assembly of the Russian Federation, makes recommendations on the coordination of the basic directions, subjects and scope of the research projects. The Council on Local Self-Government is a standing advisory and expert body that provides analysis and assessment of the legal regulation and practice of the Russian Federation law on local government. The purpose of the Council is to prepare proposals for the improvement of the legislation of the Russian Federation on local self-government. In addition, under the Chairman of the State Duma there are two standing working groups on the legal analysis of the legislative process and legislative acts adopted in the Ukraine and also on the legislative initiatives in the sphere of innovation policy. Under the Chairman of the State Duma also the Council of non-parliamentary parties operates, in the framework of which six working groups on various thematic areas are formed — from issues of political competition and electoral system — to the environment, culture, and science-intensive technologies. The Council may include the representatives of the political parties, with regional offices in at least 42 regions of the Russian Federation (as of today — the representatives of 37 parties). The Council promotes inter-party dialogue and dialogue with the party authorities. In the regions of the Russian Federation, the activities of the legislative (representative) bodies are also accompanied by an invitation to various experts and specialists, representatives of state bodies and public organizations, academic institutions. Thus, according to the Regulations of the National Assembly of the Republic of Dagestan, in case of need the Presidium of the National Assembly forms temporary commissions (working 371

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groups) from its members, from among the deputies, experts and representatives of state bodies and public organizations, academic institutions for the preparation of proposals on matters within its competence. As follows from the Regulations of Voronezh Regional Duma, the meetings of the Regional Duma may be attended by the representatives of the regional government, public bodies, public associations, scientific institutions to provide the necessary information and a conclusion on the draft laws and other issues considered by the Regional Duma. There are different kinds of expert and advisory councils under many committees and commissions, parliamentary associations and other structural units of the Parliament (its chambers), as well as under some of the structural subdivisions of the chambers. For example, the Advisory Council was established under the Committee of the Council of Federation on Constitutional Legislation, Judicial and Legal Affairs, Development of Civil Society1. This Council is an advisory body and is formed to provide the methodological and scientific support of this Committee, to formulate the basic ideas, tasks and objectives on issues referred to it by the Regulations of the Council of Federation. In order to fulfill its tasks, the Council makes proposals for priority spheres of the legislative activity of the Committee; participates in the preparation of opinions on draft laws developed by the members of the Committee in the exercise of the right of the legislative initiative; informs the members of the Committee and officers of the machinery on law enforcement on specific issues; participates in the preparation and carrying out of activities undertaken by the Committee. The similar structures are also often formed in the regions of the Federation. In the Belgorod region the Legal Advisory Council was established under the Regional Duma2. Its primary tasks are: the preparation of laws and other regulations of the region; the preparation of studies and opinions on draft laws submitted by the Regional Duma to the State Duma as a legislative initiative; the expert examination of draft normative documents submitted to the Regional Duma; the participation in the preparation and carrying out of activities of the Regional Duma on legislation. To perform its functions, the Council can establish working groups, commissions, functioning under the guidance of members of the Coun1



2



372

Regulations on the Advisory Council at the Committee of the Council of Federation on Constitutional Legislation, Judicial and Legal Affairs, Civil Society Development of April 16, 2012 // URl: http://council.gov.ru/kom_home/ccf_lawjust/exp_council/basic/index.html Ref.: The Resolution of the Belgorod Regional Duma of November 24, 1994 № 26 «On the Legal Advisory Council of the Regional Duma».

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cil; such decisions are formalized by the order of the Chairman of the Duma. The Scientific Advisory Council under the Legislative Assembly of Nizhny Novgorod region was also established 1. Its main tasks are: the examination of laws and regulations of the Legislative Assembly of the Nizhny Novgorod region, the draft laws and draft resolutions of the Legislative Assembly of the region; the participation in the forecasting and planning of the legislative activity of the Legislative Assembly of the Nizhny Novgorod region, the development of proposals for the improvement of laws and regulations; the identification of possible negative social, economic, environmental and other consequences of laws and regulations adopted by the Legislative Assembly. The Council is formed of the representatives of scientific, educational and other (specialized) institutions and organizations, as well as other qualified professionals. The Council may not include persons holding public posts of the Russian Federation, Nizhny Novgorod region government positions, persons holding posts of federal public service, as well as municipal posts and posts of municipal service. The Council is a collegial body and exercises its powers in the following forms of collective work: meeting of the Council; negotiations, working groups of the Council; etc. The practice of the establishment of such public research bodies under the legislative bodies of the regions of the Russian Federation has become widespread. Such structures provide a scientific approach to law-making activities; contribute to a higher quality of the adopted regulations, the implementation of scientific forecasting and planning of the development of the legislation of a region of the Russian Federation, which is certainly a positive impact on the state of the regional legal system and the legal system in Russia as a whole. It should be noted that a significant role in the implementation of the expert examination of the draft laws, analysis and enforcement play the research institutions (eg., the Institute of Legislation and Comparative Law under the Government of the Russian Federation) and higher educational institutions (in particular, Kutafin Moscow State Law University). It is necessary to draw the further attention to the fact that parliamentarians, together with their assistants, whose work is paid from the budget expenses for maintenance of the parliament, can be the assistants working on a voluntary basis, who are usually invited to provide the qualified expert consulting support for the parliamentarians. 1



Ref.: The Resolution of the Legislative Assembly of Nizhny Novgorod region of June 25, 2009 № 1595-IV «On the Adoption of the Regulations on the Scientific Advisory Council of the Nizhny Novgorod region». 373

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Thus, the experience of the chambers of the federal parliament shows that a large number of people (several dozen) have become the assistants of the parliamentarians on a voluntary basis. However, this situation can lead to abuse, such as the absence for the long-term of the quantitative restrictions in respect to the assistants of the deputy of the State Duma, working on a voluntary basis, which led to the fact that among these assistants were those, who took no part in the work of Parliament. In their work, the legislative bodies use the materials and preliminary studies prepared by public associations and other non-government organizations. At this, the structural subdivisions of the machineries of the Chambers of the Parliament in a number of cases seek help from the voluntary organizations, and sometimes use the materials submitted to the Parliament on the initiative of the public associations. The improvement of the expert-analytical framework of legislative and other activities of the Parliament is a prerequisite for the quality and efficiency of its functioning. In this regard, the development of the engagement of different kind of consultants to provide intellectual and scientific substantiation of legislative activity becomes the increasingly urgent task. At the same time is very significant the creation of the conditions for increasing the efficiency of intra-parliamentary analytical services, involvement of highly qualified specialists of various spheres, as well as the development of the legal status of the public scientific advisory councils that perform a significant amount of analysis, information and counseling work to facilitate functioning of the legislative bodies in Russia.

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Appendix

The names of the legislative bodies of the subjects of the Russian Federation The Republic of Adygeya The Republic of Altai The Republic of Bashkortostan The Republic of Buryatia The Republic of Daghestan The Republic of Ingushetia The Kabardino-Balkarian Republic The Republic of Kalmykia The Karachayevo-Circassian Republic  The Republic of Karelia Komi Republic The Republic of Crimea The Republic of Mari El The Republic of Mordovia The Republic of Sakha (Yakutia) The Republic of North Ossetia — Alania The Republic of Tatarstan

The State Council — Khasa of the Republic of Adygea The State Assembly — El Kurultai (Parliament) of the Republic of Altai The State Assembly — Kurultai of the Republic of Bashkortostan The People’s Khural of the Republic of Buryatia The People’s Assembly of the Republic of Dagestan The People’s Assembly of the Republic of Ingushetia The Parliament of the KabardinoBalkarian Republic The People’s Hural (the Parliament) of the Republic of Kalmykia The People’s Assembly (the Parliament) of the Karachayevo-Circassian Republic The Legislative Assembly of the Republic of Karelia The State Council of the Komi Republic The State Council of the Republic of Crimea The State Assembly of the Republic of Mari El The State Assembly of the Republic of Mordovia The State Assembly (Il Tumen) of the Republic of Sakha (Yakutia) The Parliament of the Republic of North Ossetia — Alania The State Council of the Republic of Tatarstan 375

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The Republic of Tuva The Udmurtian Repubic The Republic of Khakassia The Chechen Republic The Chuvash Republic — Chuvashia The Altai Territory The Trans-Baikal Territory The Kamchatka Territory The Krasnodar Territory The Krasnoyarsk Territory The Perm Territory The Primorye Territory The Stavropol Territory The Khabarovsk Territory The Amur Region The Arkhangelsk Region The Astrakhan Region The Belgorod Region The Bryansk Region The Vladimir Region The Volgograd Region The Vologda Region The Voronezh Region The Ivanovo Region The Irkutsk Region The Kaliningrad Region The Kaluga Region 376

Supreme Khural (Parliament) of the Republic of Tyva The State Council of the Udmurt Republic The Supreme Council of the Republic of Khakassia The Parliament of the Chechen Republic The State Council of the Chuvash Republic The Legislative Assembly of the Altai Territory The Legislative Assembly of the TransBaikal Territory The Legislative Assembly of the Kamchatka Territory The Legislative Assembly of the Krasnodar Territory The Legislative Assembly of the Krasnoyarsk Territory The Legislative Assembly of the Perm Territory The Legislative Assembly of the Primorye Territory The Duma of the Stavropol Territory The Legislative Duma of the Khabarovsk Territory The Legislative Assembly of the Amur Region The Arkhangelsk Regional Council of Deputies The Duma of the Astrakhan Region The Belgorod Regional Duma The Bryansk Regional Duma The Legislative Assembly of Vladimir Region The Volgograd Regional Duma The Legislative Assembly of the Vologda region The Voronezh of Regional Duma The Ivanovo Regional Duma The Legislative Assembly of the Irkutsk Region The Kaliningrad Regional Duma The Legislative Assembly of Kaluga Region

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The Kemerovo Region The Kirov Region The Kostroma Region The Kurgan Region The Kursk Region The Leningrad Region The Lipetsk Region The Magadan Region The Moscow Region The Murmansk Region The Nizhny Novgorod Region The Novgorod Region The Novosibirsk Region The Omsk Region The Orenburg Region The Oryol Region The Penza Region The Pskov Region The Rostov Region The Ryazan Region The Samara Region The Saratov Region The Sakhalin Region The Sverdlovsk Region The Smolensk Region The Tambov Region The Tver Region The Tomsk Region The Tula Region

The Council of People’s Deputies of the Kemerovo Region The Legislative Assembly of the Kirov Region The Kostroma Regional Duma The Kurgan Regional Duma The Kursk Regional Duma The Legislative Assembly of the Leningrad Region The Lipetsk Regional Council of Deputies The Magadan Regional Duma The Moscow Regional Duma The Murmansk Regional Duma The Legislative Assembly of the Nizhny Novgorod Region The Novgorod Regional Duma The Legislative Assembly of the Novosibirsk Region The Legislative Assembly of the Omsk Region The Legislative Assembly of the Orenburg Region The Oryol Regional Council of People’s Deputies The Legislative Assembly of the Penza Region The Pskov Regional Council of Deputies The Legislative Assembly of the Rostov Region The Ryazan Regional Duma The Samara Regional Duma The Saratov Regional Duma The Sakhalin Regional Duma The Legislative Assembly of the Sverdlovsk Region The Smolensk Regional Duma The Tambov Regional Duma The Legislative Assembly of the Tver Region The Legislative Duma of the Tomsk region The Tula Regional Duma 377

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The Tyumen Region The Ulyanovsk Region The Chelyabinsk Region The Yaroslavl Region Moscow St. Petersburg Sevastopol The Jewish Autonomous Region The Nenets Autonomous Area The Khanty-Mansi Autonomous Area — Yugra The Chukotka Autonomous Area The Yamalo-Nenets Autonomous Area

The Tyumen Regional Duma The Legislative Assembly of the Ulyanovsk Region The Legislative Assembly of the Chelyabinsk Region The Yaroslavl Regional Duma The Moscow City Duma The Legislative Assembly of St. Petersburg The Legislative Assembly of the city of Sevastopol The Legislative Assembly of the Jewish Autonomous Region The Assembly of the Deputies of the Nenets Autonomous Region The Duma of the Khanty-Mansi Autonomous Area — Yugra The Duma of the Chukotka Autonomous Area The Legislative Assembly of the YamaloNenets Autonomous Area

The concept of the federal law draft «On the normative legal acts in the Russian Federation»

Prepared by the Institute of Legislation and Comparative Law under the Government of the Russian Federation The preamble proposes to summarize the aim of the future Federal Law «On the Regulating Legal Acts of the Russian Federation» (hereinafter — the Federal law), define the subject and problems of the introduced regulation, and the legal means of goal achieving. Chapter 1. General provisions

In the first Chapter of the Federal Law it is proposed to summarize the concept of the «regulating legal act» as the official written document adopted in the prescribed form by the lawmaker and aimed at the establishment, modification, introduction or recognition the legal norms as the mandatory rules of the permanent or temporary nature, addressed to an indefinite number of persons and designed for the current usage. In addition, it is 378

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necessary to give the concept of «lawmaking», which under the purposes of the Federal Law understands as an official activity of the lawmakers for the adoption (publication) of the regulative legal acts. Thus, it is necessary to proceed from the fact that the lawmaking in the Russian Federation is regulated by the Constitution of the Russian Federation, the federal constitutional laws, the current federal laws, other federal laws and other regulative legal acts of the Russian Federation, the constitutions (charters), the laws and other regulative legal acts of the regions of the Russian Federation, the charters of the municipalities, other municipal regulations. It is proposed to make a formulation that the present Federal Law is special in relation to other federal laws governing the lawmaking issues in the Russian Federation. It means that, the constitutions (charters), laws and other regulative legal acts of the regions of the Russian Federation, the charters of the municipalities, the municipal legal acts in the field of lawmaking are adopted on issues, which are directly established by the Constitution of the Russian Federation, or which are not regulated by the federal constitutional laws, by the current Federal Law, by the other federal laws and by adopted in accordance with them the other regulative legal acts of the Russian Federation. If by the constitutions (charters), laws and other regulative legal acts of the regions of the Russian Federation adopted outside the jurisdiction of the Russian Federation and the powers of the Russian Federation on the issues of joint jurisdiction of the Russian Federation and the regions of the Russian Federation, the specificy of the lawmaking regulation in the regions of the Russian Federation is provided, the provisions of the current Federal Law and other federal laws are applied in regard with this specificy fixed in those constitutions (charters), laws and other regulative legal acts of the regions of the Russian Federation. The regulation of the issues of the lawmaking in the municipalities by the laws and other normative legal acts of the regions of the Russian Federation is permitted only in cases stipulated by the present Federal Law and other federal laws. It is necessary to recognize that the lawmakers in the Russian Federation are: –– the citizens of the Russian Federation; –– the foreign citizens in cases stipulated by the international agreements of the Russian Federation and federal laws; –– the state bodies of the Russian Federation, the officials of the Russian Federation; –– the state bodies of the regions of the Russian Federation, the officials of the regions of the Russian Federation; –– the local self-government bodies and the officials of the local self-government bodies. 379

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Chapter 2. The system of the regulative legal acts

The definition of the system of the regulatory legal acts in the Russian Federation is assumed to be entrenched as a set of the regulative legal acts adopted (issued) in the Russian Federation, and interconnected with each other by the relationship of subordination and coordination. The system of the regulative legal acts in the Russian Federation includes the regulative legal acts of the Russian Federation, the regulative legal acts of the regions of the Russian Federation and the municipal legal acts. The types of the regulative legal acts, characteristics of their basic forms were stated as: 1) the laws and regulations; 2) the main and derived regulative legal acts (rules, regulations, instructions, rules, lists (registers), and others.); 3) the auxiliary (the regulative legal act, amending, repealing or explaining the other regulative act) and the additional regulative legal acts (the regulative legal act adopted (issued) at the request of the main regulative legal act with an aim of specifying its provisions or establishing the procedures for their implementation); 4) the general and specific regulative legal acts. The Federal Law shall also determine that the regulative legal acts are not: 1) the acts of application of the rules of law as the regulating of a certain kind of the public relations and addressed to the strictly defined person or group of persons; 2) the recommendation acts of non-binding nature that provide an approximate model of behavior. In the Russian Federation the next types of the regulative legal acts are recognized: –– the regulative legal acts of the Russian Federation (the Constitution of the Russian Federation, the laws of the Russian Federation on amendments to the Constitution of the Russian Federation, the federal constitutional laws, the federal laws, the regulative legal acts of the Council of Federation and the State Duma of the Federal Assembly of the Russian Federation, the regulative legal acts of the President of the Russian Federation, the regulative legal acts of the Government of the Russian Federation, the regulative legal acts of the federal bodies of the executive state power, the regulative legal acts of the Central Election Commission of the Russian Federation, the regulative legal acts of the Central Bank of the Russian Federation, the regulative legal acts of other state bodies of the Russian Federation and the officials of the Russian Federation); –– the regulative legal acts of the regions of the Russian Federation; –– the municipal regulative legal acts. The positions of the regulative legal acts in the hierarchy, defining their relationship, and also their subordination in relation to each other are also established. 380

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Chapter 3. The adoption (promulgation) of the regulative legal acts in procedure of performing the international obligations of the Russian Federation

It is necessary to state the ground viewpoint that, in accordance with the Constitution of the Russian Federation the world-widely recognized principles and norms of the international law and the international agreements of the Russian Federation are an integral part of its legal system. The world-widely accepted principles of the international law mean the fundamental mandatory rules of the international law accepted and recognized by the international community as a whole, deviation from which is inadmissible. The generally accepted principles of the international law mean the rules, which were adopted and recognized by the international community as a whole as the legally binding. The international agreements of the Russian Federation, along with the generally recognized principles and rules of the international law are an integral part of its legal system. Part of the legal system of the Russian Federation are also the existing international agreements concluded by the USSR according to which the Russian Federation continues to implement the international rights and obligations of the USSR as a state — successor of the USSR. In accordance with Cl. «a» Art. 2 of the Federal Law of July 15, 1995 No. 101-FZ «On the International Agreements of the Russian Federation», the international agreement of the Russian Federation means the international agreement concluded by the Russian Federation with a foreign state (or states), with an international organization or with any other entity having the right to conclude the international agreements in written form and governed by the international law, regardless of whether such an agreement is contained in the one document or in several related documents and regardless of it particular name (for example, a convention, a pact, an agreement, etc.). It is necessary to classify the international agreements, depending on the entities of their adoption as the international agreements of the Russian Federation concluded on behalf of: the Russian Federation (the international agreements), the Government of the Russian Federation (the intergovernmental agreements), as well as the federal bodies of the executive power (the interagency agreements). In accordance with this classification a rule under which the provisions of officially published international agreements of the Russian Federation which do not require publication of the internal regulations for application and act directly in the Russian Federation shall be established. To implement the provisions of the international agreements of the Russian Federation, requiring the execution of the internal law enforcement 381

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acts, the legislative bodies of the Russian Federation adopt (issued) the relevant legal acts. In accordance with the Constitution of the Russian Federation, the rule on the coordination between the international agreements of the Russian Federation and the internal laws shall be assigned. If the international agreement of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international agreement shall be applied. At the same time, the international agreements ratified by the Russian Federation, through the adoption of the relevant federal law, have the priority over the federal laws. The international agreements of the Russian Federation, signed by the President of the Russian Federation and the Government of the Russian Federation, have the priority in regard to the presidential, governmental, or other acts executed by the lower-level state bodies. The interdepartmental agreements have the priority only in respect of the acts of the relevant department (departments). The international obligations of the Russian Federation can arise not only from the international agreements of the Russian Federation, but also from the acts of international organizations, the participant of which the Russian Federation is. For example, according to the agreement of November 18, 2011. «On the Eurasian Economic Commission», the Commission, within its authority takes the decisions that are binding for the members, and the recommendations of the non-binding character. The decisions of the Commission are included in the legal base of the Customs Union and the Common Economic Space, and are subject to the direct application on the territories of the members. Therefore, in cases where for the fulfillment of the international obligations of the Russian Federation, arising from the acts of the international organizations among the participants of which the Russian Federation is, the implementation of the rules of the international law into the legal system of the Russian Federation is not required, the decisions of the international organizations act directly in the Russian Federation. If for the fulfillment of the international obligations of the Russian Federation arising from the acts of the international organizations the participant of which the Russian Federation is, the implementation of the rules of the international law into the legal system of the Russian Federation is required, the legislative bodies of the Russian Federation adopt (issue) the relevant legal acts. It is assumed to fix the provision that the decisions of the European Court for Human Rights are binding for the Russian Federation due to Russia’s recognition of the compulsory jurisdiction of the European Court for Human Rights. 382

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Chapter 4. The planning, foresighting of the legislative activity and the regulatory impact assessment

In the lawmaking activity the planning is used in order to establish the unified and non discrepant system of the regulative legal acts of the Russian Federation, the regulative legal acts of the regions of the Russian Federation and the municipal regulative legal acts, to implement the provision of the transparency in the lawmaking activity, the improvement of the process of the preparation regulative legal acts, the coordination of lawmaking bodies activity. The current and long-term planning may be applied. In the Federal Law, it is necessary to stipulate a group of articles devoted to: –– the concept and the aims of the preparation of the planning of the regulative legal acts; –– the procedure of the adoption and publication (promulgation) of the programs (plans) of the preparation of the regulative legal acts; –– the requirements to the content of the programs (plans) of the preparation of the regulative legal acts. The planning as the activity aimed at building of a non discrepant and integral system of the regulative legal acts in the Russian Federation, involves registration of the data of the legal foresighting and the legal monitoring. In the Federal Law, it is supposed to promote the provision that the foresighting precedes the elaborating the regulative legal acts, which are prepared on its bases. The foresighting’s purpose is to assess the negative and positive consequences of the regulative legal act adopting. It is necessary to assign the provision that any foresighting in the lawmaking activity shall contain the verification of the proposed regulative decision in view of its the corruption potential, as well as for the completeness of the regulation in order to avoid gaps in the legislation. It is necessary to define the following basic principles of the foresighting in the lawmaking activity: –– the principle of objectivity and reasonableness of the foresighting (the substantiation of the foresighting’s conclusion by the empirical and actual data, the data of the legal monitoring); –– the principle of the variance of the foresighting (the development of the alternatives of the foresighting); –– the principle of the continuity of the foresighting (the correction of the foresighting upon the receipt of the new data on the object of the foresighting); –– the principle of the consequency between different types of the foresighting (with the other legal foresighting, social and economic foresighting, etc.). 383

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It is assumed to be fixed that the lawmakers in the process of the foresighting development can be: –– the representatives of the scientific institutions and organizations, experts who are knowledgeable of different fields of science; –– the specialists of the state bodies; –– the representatives of non-government, public institutions and organizations, business structures, attracted to the prospective activities by the state bodies, or involved it by their own initiative, and the others. To improve the efficiency of the legal regulation the implemented into the management practice Institute for Regulatory Impact Assessment helps, in which the public hearings in the form of the public consultation on the draft of a certain regulative legal act are held with the representatives of the business community and various public associations. However, a legal framework of defining the possibility of the regulatory impact assessment commissioning of the regulative legal acts drafts and the existing legal regulations controls adopted by the state bodies of the different level on a wide range of issues are still not established. In this connection: –– the subject of the regulatory impact assessment of the regulative legal acts; –– the procedure of the regulatory impact assessment of the regulative legal acts drafts; –– the procedure of the regulatory impact assessment of the current regulative legal acts; –– the use of the results of the regulatory impact assessment in the lawmaking and law enforcement, and others should be assigned. Chapter 5. The procedure for the preparation of the draft regulative legal act

The grounds for the regulative legal act preparation are required to be legally regulated. At the beginning of the work the conceptual elaboration of its content, where the characteristic of the subject of the legal regulation of the planned act should be given, indicated the objectives of the legal regulation, set out the basic provisions concerning the situation in the proposed field of the regulation, as well as those changes that would occur in the legal system as a result of the act adoption, the consequences of its adoption, and others are important. In terms of the legality requirements, it is necessary to strengthen the measures to provide the conceptual preparedness of the adopted legal decisions. Conceptual inaccuracy not only reduces the quality of the future 384

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act, the efficiency of its action, but also has a negative impact on all legislation in general. The situation is complicated by the fact that the mistake implicit in the concept level, cannot be corrected in subsequent stages of the formation of the text of the planned legal decision. At the stage of the preparation of the regulative legal act the resources on which the action of the future act depends should be assessed. Only in the presence of the necessary legal, organizational, financial, and other funds, it is possible to count on the reality of the promulgated act application and its full provision. In addition, the preparation of the regulative legal act shall be accompanied by the information support that includes: –– the analysis of the status and practice of the application of the active regulative legal acts on the topic of the draft, their assessment considering the decisions on the cases of the verification of the constitutionality of certain legal acts, adopted by the Constitutional Court of the Russian Federation and in view of the international agreements ratified (approved) by the Russian Federation; –– generalization of the results of public opinion polls, citizens’ appeals to the state bodies, the media materials, the recommendations of the scientific institutions; –– the study (in the comparative perspective) of the regulative legal regulation experience in the relevant field of other countries and regions. The problems associated with the preparation of the regulative legal acts draft laws may also include the coordination of the interests of the legal entities of all levels, involved in the drafts, the preparation of the supporting documents, the publication (promulgation) of regulative legal acts drafts. Chapter 6. The requirements of the legal technique. The registration of the regulative legal acts

In the Federal Law, it is necessary to define the basic criteria of the constitutional legitimacy of the regulative legal acts, such as: 1. The regulative legal acts are adopted (promulgated) by the public authority in accordance with the lawmaking competence granted to it by the Constitution of Russian Federation. Any of the state power body is entitled to adopt (promulgate) the regulative legal act without prior arrangement, without having the constitutional powers. The main form of the legal regulation of the public relations in the Russian Federation is the law, which has the supreme legal force and cannot be amended, modified or canceled by other regulative legal acts. Decisions on the introduction of the law into the effect, its revision are made also in the form of law. 385

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The legislative act of the temporary or one-time value may not change the content of the permanent legislation. The regulative legal acts coming from the executive bodies are regulations, so based on the current legislation and do not in a contradiction to it. When canceling the legislative act whish is recognized by the decision of the Constitutional Court of the Russian Federation as unconstitutional, the action of the regulative legal acts that were canceled by the specified of legislative act is restored. 2. The regulative legal acts are adopted (promulgated) in a particular form (law, decree, ordinance, charter, regulation, instruction, etc.) and in compliance with the legal technique, procedural rules, established by the Constitution of the Russian Federation and other legislative acts. The law regulates all matters relating to the public and state structure, the federal relations, the fundamental constitutional rights and freedoms of the citizens, the taxation, the monetary exchange, the purchase and sale of weapons, the general national security, the nuclear energy, the legal status of non-governmental organizations, the local authorities, the legal liability, the jurisdictional powers of the law enforcement agencies, as well as the declaration of the emergency or military actions. 3. The regulative legal act which is not promulgated in the prescribed by law manner cannot be considered as a constitutional. 4. The regulative legal act which is promulgated in the form of law, contains the necessary legal definitions (determinations) of the used key concepts. 5. In the regulative legal act the interpretations (explanations), which are not consistent with the principles and norms of the Constitution of the Russian Federation are not allowed. 6. The regulative legal act issued in the form of law, contains a preamble with the justification (motivation) of the necessity of its adoption (promulgation). 7. The regulative legal act, which is not provided with the legal guarantees cannot be considered as a constitutional. 8. The content of the regulative legal act may not contravene the principle of the inviolability of the main constitutional rights of a man that is stipulated in the Constitution of the Russian Federation and international legal documents. 9. In terms of a federal state the constitutionality of the regulative legal acts of the federal importance and the constitutionality of the regulative legal acts of the regions of the Federation shall be distinguished. It is of a significant importance that the regulative legal acts of federal importance shall not invade the established constitutional scope of authorities of the 386

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state bodies of the regions of the Federation and, on the contrary, the legislation of the regions of the Federation shall not invade into the scope of authorities of the federal state bodies. 10. The content of the regulative legal act shall not contradict to with the generally recognized principles and norms of the international law. In the Federal Law, it is necessary to fix the principle of the conceptual and terminological certainty at the registration of the regulative legal acts, which determines the common logical culture of the lawmaking. The legal definitions, stipulated in the regulative legal acts, shall meet the following requirements: 1. The optimum adequacy of the nature of the determined definition. The legislator is not entitled to handle hypothetical, false definitions. 2. The conventional base defining the generic and specific categories of the legal concepts, providing them with the hierarchically-system functioning, necessary logical interconnectedness at all deductive-inductive levels (vertically and horizontally) of their semantic relationships. 3. The discursive, that is, a certain logic «grip» in connection the previous well-established (recognized) definitions, basic determinations of the current national legislation and international law, that reflecting the historical and logical continuity of the legal thinking constructively «enters» these definitions to the appropriate legal context of a particular legal behavior, determines their functional efficiency, promotes stabilization and improvement of the legal social relations. It is assumed to meet the following requirements for the use of terminology in the development and registration of draft regulative legal acts: 1. The terms shall be as short, clear, lexically and stylistically correctly formulated as possible. 2. Each term shall be used strictly in accordance with the meaning attached to it. 3. The usage of the terms in a metaphorical or figurative meaning is unacceptable. The term as a semiotic (language) character is deprived by the possibility of development, changing and transformation of its meaning, predetermined by the content of the concept, which it represents. 4. The priority meaning shall be given to the common and special national terminology. The borrowing of the foreign terminology shall be justified semantically. In particular, the linguistically such borrowing can be only justified in the case if it is difficult to find a Russian equivalent to a particular term that correctly reflects its meaning. Thus, it is necessary to keep in mind that the equivalent does not always disclose the meaning of the foreign word in its full content extent. 387

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5. In the sectoral and intersectoral regulation of the public relations, the certain semantic continuity and the consistency in the use of common and special legal terminology in procedure to preempt the law enforcement conflicts in the system of the legal relations in their further development and improvement shall be maintained. 6. In the terms of a federal statehood any differences between the terminology used in the federal legislation and the terminology used in the legislation of the regions of the Russian Federation shall not be. The certain terminological borrowings from the national languages are acceptable (for example, the use of some ethnographisms, that is, the words that do not have synonyms in the state language of the Russian Federation) in the development of the draft laws within the matters of joint jurisdiction of the Russian Federation and its regions. 7. In the developing of the draft laws the usage of the terminology indicating the estimated concepts (such as «substantial damage», «disrespect to the court» and others), the content of which has an open logical structure and causes certain difficulties in their interpretation in law enforcement activities shall be minimized, if possible. 8. The terms indicating the highly specialized concepts in the field of science and technology and of particular information and communication function shall be used in the fields of the legislative regulation where they are professionally required (aircraft, consumption of mineral resources, nuclear energy, etc.). 9. If in the case of certain social changes to the commonly used terminology that return the obsolete terms, their current meaning shall be clarified. 10. Using in the text of the regulative legal act of synonyms (the words with different spellings, but very close in meaning) or homonyms (the words with the same spelling but different meanings) shall strictly comply with the content of the regulative legal act. In addition, during the registration of the regulative legal acts it is important to respect the principle of deontic balance of the established legal norms, the deontic modality of which is expressed in the moduses of «allowed», «required» (mandatory), «forbidden». It is necessary to fix the rules on the necessity of the motivational provision of the regulative legal acts while their registration. The will of the legislator as the governing party of his mind shall be optimally motivated, and it is represented in the preamble of the regulative legal act, which explains the circumstances determining the adoption of this act, its goal, and objective. It is advisable to determine in which cases the provision of the law with the preamble shall be mandatory. As a general principle the requirement of the mandatory provision with the preamble of major, very important from 388

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a legal point of view of legal acts, as well as all legal and regulatory innovations related to the legal status of a citizen, any amendments or supplements of the Constitution of the Russian Federation, and the constitutional laws shall be foreseen. Chapter 7. The expertise of the draft regulative legal acts

The legislative establishment of the specific parameters of the expertise of the draft regulative legal acts is of the import necessity. The expertise involves a comprehensive assessment of the drafted legal solutions in terms of its coordination with the general system of the current regulative legal acts, the regulatory impact assessment, the compliance with the international standards, especially in the field of human rights provision, as well as the desirability of adopting given the necessary improvement of the certain sector, subsector, institute of law. The issue of the expertise delimitation by the type (legal, anti-corruption, lingvostylistic, financial, environmental, etc.) shall be solved. The profile of the carried out expertise and tasks facing the expert, the expert opinion shall contain a reasoned assessment of permissibility of the adoption of the planned regulative legal act, defects, possible effectiveness and the predicted effects of the act (social, economic, legal, environmental, etc.). Chapter 8. The public discussion of the draft regulative legal acts

The public discussion of the draft regulative legal acts is an essential element of the lawmaking process in a democratic legal state. In this connection, the legal bases of the public discussion of draft regulative legal acts in the Russian Federation shall be provided, in particular with: –– enshrining the concepts, principles and forms of the public discussion; –– defining the procedure for holding of the public discussions of the draft regulative legal acts with the usage of the modern information and telecommunication technologies and media opportunities; –– establishing the rules of registration of the public discussion results and their registration in the regulative activities of the federal, regional and local state bodies. Chapter 9. The adoption (promulgation) of the regulative legal acts

It is necessary to determine what documents will accompany the draft regulative legal act, in which procedure the supporting documents shall be submitted, etc. 389

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The following issues related to the recognition of the draft regulative legal act shall be resolved: –– what decisions are adopted by the lawmaking body on the results of the consideration; –– in what cases the draft regulative legal act may be withdrawn by the body, person(s), who introduced it prior to its adoption (promulgation); –– from what date the regulative legal act shall be deemed adopted (promulgated); –– who signs the official texts of the regulative legal acts and others. Chapter 10. The official publication (promulgation), and the entry of the regulative legal acts into force

It is advisable to secure the provision according to which the unpublished laws do not apply. Any regulative legal acts concerning the rights, freedoms and duties of a man and a citizen may not be applied if they are not officially published for general information. A procedure for the official publication (promulgation), and the entry into force of the regulative legal acts should be established. A special legal regulation is required to be issued for the publication of the regulative legal acts containing the information constituting a state or other secret protected by federal law. The law shall reflect the following issues related to the official publication: –– the dates of publication of the regulative legal acts; –– the date of the official publication (promulgation) of the regulative legal acts; –– the terms for entry of regulative legal acts into force; –– state registration of the regulative legal acts; –– the citizens’ getting acquainted with the regulative legal acts and others. Chapter 11. The mechanism of law enforcement of the regulative legal acts

For the modern tendencies of the revitalization of the legal practice and the increase the legal array of the acts a need for amendment of the regulative legal acts upon their entry into force occurs. Thus, the process of amendments becomes a necessary component of the law enforcement. In addition fot setting the norms of the legal acts on the implementation, the participation of the citizens and legal entities in this process, is necessary and it is also necessary to pay special attention to the procedure of amending the regulative legal acts and recognition of the regulative legal acts as invalid. 390

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The optimization of this process lies in reducing the number of acts governing the same field of relationships, and the unification of the legal regulation in procedure to create the necessary conditions of visibility and accessibility of the regulative material for its effective application (the unification of the alleged amendments connected by unanimous theme, in one legal act). The issue of the possibility of a new official publication of the text of the regulative act, if the act has been amended several times, should be solved. The publication of the act in the new edition means a complete substitution of its primary text with the new one. A method of adopting the act of the new edition, in case of following the foreign experience is used, when there is a need for significant changes, requiring the substitution of a large number of provisions of the act, or when the act had previously been subjected to multiple changes. While developing the new edition of the text of the regulative act, it is important to avoid the mistakes of the legal and technical nature, which may change the meaning of individual legal norms. If the regulative legal act is valid for a long time, many enabling legislative acts were adopted on its bases, the references were made to it, then, it is preferable that the new edition of the act retains the previous numeration of the articles. It is necessary to establish the common rules for cases where the legal act needs to be amended due to the fact that there is a need to resolve the malfunctions, the gaps of the legal regulation, arisen due to the committed lawmaking holes, mistakes or abuses. It is necessary to establish a procedure for correction of the committed violations of the substantive or legal and technical character and amendments to the current regulative act (e.g., in the form of the amendment). Chapter 12. The legal monitoring

It is assumed to determine fix the purpose of the legal monitoring: the ensuring of a systematic evaluation and correction of the procedures for the preparation and adoption (publication) of the regulative legal acts, the effectiveness of their implementation and the responsibility of the state bodies and local authorities. The rules for the conduction of the different types of the legal monitoring should be set, in particular: –– the monitoring for the permanent study of the objects changing and the methods of the legal regulation, the development of the industries of the legislation, laws and other regulative legal acts; –– the temporary thematic legal monitoring organized for the analysis of the legal situation and the implementation of the individual legal acts. The following provisions on the entities carrying out legal monitoring are assumed to be entrenched such as: 391

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–– the legal obligation shall be systematically conducted by the lawmaking bodies in relation to own legal acts; –– the bodies carrying out the functions of control (supervision) in the framework of the continuous monitoring in the fields of public administration and social and economic fields shall analyze the action of the regulative legal acts; –– the public associations and the research organizations may carry out the legal monitoring in accordance with the statutory goals. It is advisable to identify the key indicators of the implementation of laws and other regulative legal acts: –– the usage of the regulative legal acts for solving the social and economic problems, performing of the functions of the government and nonstate bodies and organizations, realization the rights and legitimate interests of the citizens; –– the usage of the legal norms of the laws for the adoption (publication) and changes of the subordinate legal acts; –– the ensuring of the consistently committed legal actions; –– the obtaining and analyses of the information about the kinds of violations of the laws and other regulative legal acts; –– the assessment of the impact of the regulative legal acts on the performance management and others. In addition, the determination of the powers of the entities of the legal monitoring, as well as their authorities to develop and establish of the system of the indexes (indicators) to measure the changes in the legal field is required. The results of the legal monitoring should be registered as the reports and analytical official documents that may be considered by the lawmaking bodies in procedure of taking the necessary organizational, legal and other measures. Chapter 13. The official interpretation of the regulative legal acts

It is necessary to establish that the official interpretation: –– is exercised by the bodies owning the certificate (authentic interpretation), and the bodies, which right to the official interpretation of the regulative legal acts is provided by the legislation (delegated interpretation); –– is exercised exclusively for the purposes of clarifying the content of the law rules and may not change their meaning; –– is obligatory, its legal validity corresponds to the act under interpretation; –– is issued by the authorities while considering a particular case (causal interpretation), is mandatory for its members, unless otherwise is provided by the federal law. 392

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The acts of the laws interpretation in the Russian Federation shall be adopted, signed and promulgated in the same manner as the interpreted law. It is advisable to enshrine the provision that the legal validity of the clarifications of the regulative legal acts in the Russian Federation given by the Supreme Court of the Russian Federation shall be determined by federal constitutional laws. Chapter 14. The procedure to overcome and fill the gaps in the regulative legal acts. The removal and overcoming of the conflicts of norms in the law

The absence of the regulative legal regulation or incomplete regulation of the public relations means a gap in this type of the social regulation. It is necessary to establish that the gaps removal is carried out only in the course of the legislative activity through the publication of that regulative legal act, the need for which is revealed. If the arisen relationships are not directly regulated by law or other regulative legal acts, the regulative legal acts regulating the similar relations (the analogy of the law) or the general principles of law and legislation (the analogy of the law) can be applied for such relationships. It shall be entrenched that the analogy cannot be applied if it restricts the rights and freedoms of the individuals and legal persons or they are provided with the new obligation or responsibility, or enhanced the coercive measures and the procedure of their application, the procedure of the payment of taxes, the duties and other compulsory payments, the conditions and the procedures for the control and supervision implementation in respect of their activities. It is necessary to entrench the concept of the «conflict of legal norms» as the differences or contradictions between the legal norms, claiming to regulation of the same factual situation. The remedy (prevention) of the legal collisions is carried out by the lawmaking body which adopted (published) the appropriate regulative legal act. The overcoming of the legal conflicts can be performed by the law enforcers under the following rules: –– the next norm on the same issue supersedes the previous regulation; –– the norm of a greater legal force takes precedence over the norm of less legal force and others. Chapter 15. The systematization of the regulative legal acts

The consideration and the systematization of the regulative legal acts are the necessary tools of forming a database of the current regulative legal 393

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acts in the Russian Federation, their proceeding and creating of the information basis for the further improvement of the legal regulation. In the Federal Law, it is necessary to establish that the consideration of the regulative legal acts involves the collection, storage and formation of the regulative legal acts fund, the creation of the search systems that provide the obtaining of the reliable information on the regulative legal acts. The consideration should ensure the obtaining by the public authorities, local bodies and their officials, organizations, public associations and citizens of the reliable information concerning the regulative legal acts. The systematization of the regulative legal acts is aimed at proceeding of the regulative legal documents collection in the country, classifying them within a unanimous internally coherent system. It is assumed to be entrenched: –– the concept and the principles of the regulative legal acts recognition; –– the basic rules of realizing the state register of the regulative legal acts of the federal bodies of the executive power, the federal register of the regulative legal acts of the regions of the Russian Federation and the register of the municipal regulative legal acts; –– the organization of the federal information system of the regulative legal acts in the Russian Federation; –– the basics of building and performing of the classifier of the regulative legal acts; –– the concept and the forms of the systematization of the regulative legal acts; –– the rules for the performing of the systematization of the regulative legal acts; –– the features of the systematization of the regulative legal acts of the federal, regional and local levels, and others. Chapter 16. The use of the information technologies

The informatization of all spheres of society determines the need for the introduction of the modern technologies into the rulemaking activities of the bodies of a different level. A regulative legal basis for the usage of information technologies in the rulemaking process in order to ensure a high level of the awareness of the population of the country, the representatives of the business community and various public associations on the planned and developed legislative decisions shall be established. In this respect, the modern information technologies allow to place the relevant information on the electronic resources of the Internet, to organize an electronic interaction between the various entities for the operational recognition of the arising comments and suggestions on the draft regulative legal act in the rulemaking process. 394

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It is assumed to be fixed: –– the basic rules and principles for the usage of the information technologies in the rule-making activities of the bodies of a different level; –– the main technical requirements for the information technologies used in the rule-making activities; –– the procedure for placing on the information resources of the Internet and in the media the information about the developed draft regulative legal acts of the bodies of a different level; –– the duty of the body — the elaborator of the draft regulative legal act on the placement and updating of the information on the draft regulative legal act on its official website; –– the rules and the principles of the information security and information protection in the rule-making activities of the bodies of a different level, and others. Chapter 17. Final provisions

It is necessary to entrench the date of entry of the Federal Law «On Regulative Legal Acts of the Russian Federation» into force. Until the adduction of the federal laws and other regulative legal acts of the Russian Federation, the laws and other regulative legal acts of the regions of the Russian Federation, the municipal regulative legal acts in conformity with the present Federal Law, the federal laws and other regulative legal acts of the Russian Federation, the laws and other regulative legal acts of the regions of the Russian Federation, the municipal regulative legal acts shall be applied insofar as they do not contradict this Federal Law. Methodical rules for the performance of the scientific and legal expertise of the draft laws submitted to consideration of the State Duma of the Federal Assembly of the Russian Federation

Prepared by the Institute of Legislation and Comparative Law under the Government of the Russian Federation I. General provisions

1. The scientific and legal expertise of the draft laws submitted for the consideration of the State Duma of the Federal Assembly of the Russian Federation are carried out in procedure to ensure their high quality, practical feasibility and subsequent effective implementation. 395

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2. In carrying out of the scientific and legal expertise of the draft laws, it is necessary to be guided by the Constitution of the Russian Federation, by the norms of the current federal law, as well as the provisions of the regulations of the Chambers of the Federal Assembly. 3. The scientific and legal examination of the draft laws is based on the following principles: –– the legality (the orientation in the course of the expertise carrying out on the basis of the legal system formed in the country and the rule of law); –– the free access of the experts to the information necessary to carry out a comprehensive expertise of the draft law; –– the professionalism of the experts; –– the equality of the rights of the experts in the formulation of the questions, making of the proposals and formulation of the conclusions in the process of the preparation of an opinion on the draft law; –– the independence of the experts within the authorities granted to them (the expert shall not be subordinated by the body where the initiative of the draft law was arisen and shall not be related to the position of the body under which instructions the expertise is performed); –– the independence of the experts in the adoption of the specific decisions (the expert is based on his own knowledge, conducted researches and acquitted practical experience in the field of law in the formulation of his conclusions); –– the responsibility of the experts for the completeness, objectivity and quality of the analysis of the draft law, as well as of the theoretical and practical validity of the draw conclusions by the results of the expertise, and others. II. The arrangement of the draft laws scientific and legal expertise performance

4. The scientific and legal expertise of the draft laws submitted to the State Duma shall be performed by the Council of the State Duma, or by the committee responsible for the consideration of the draft law, and in the terms set by him. 5. The draft law acts are subject to the mandatory examination on the issues of provision of the constitutional rights, freedoms and duties of the citizens of the Russian Federation, the legal status of the federal bodies and the public associations, the state budget, the tax system, the financial obligations of the state, the environmental and economic security, the international cooperation, the struggle in respect to offenses. 6. The body coordinating the scientific and legal expertise at the federal level is the Scientific Advisory Council on Legislation, established at the Council of the State Duma. 396

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7. The Scientific Advisory Council on Legislation coordinates the activities related to the conduction of the expertise, determines the personal composition of the experts group (or a unanimous expert), who are entrusted to prepare an opinion on a particular draft law in accordance with the Council of the State Duma (the Committee). 8. Scientific and legal expertise of the draft laws is carried out by the legal scientific and educational institutions, legal experts or groups of the experts from the leading scientists and experts in the field of the law, depending on the subject matter of the draft law. 9. The leading scientists and experts from the foreign countries and the international organizations. may be invited to carry out the scientific and legal expertise of the draft laws. 10. The organizations and individuals who took part in the preparation of the relevant draft law cannot be among the experts. 11. The scientific and legal expertise of the draft laws is carried out on a contractual basis. 12. The organizational and logistical support of the expert’s activities is carried out by the body under which decision the expertise is performed. III. The scope of work of the experts

13. The scientific and legal expertise of the draft law is carried out after its official submission to consideration by the State Duma and consists of analyzing and evaluating of the presented draft law. 14. During the analysis of the certain provisions of the draft law, the relevant statistical information; the data of the sociological studies; the materials on the considered problem of practice of the law regulation and law practice in Russia and in foreign countries; the conclusions drawn from scientific researches and practical achievements; other sources of information depending on the specificity if the matter of draft law shall be used. 15. On the results of the analysis the expert, based on his knowledge in the field of jurisprudence and other scientific positions, as well as on the practical experience, shall give a qualitative assessment of the draft presented. 16. The scientific and legal expertise involves the evaluation of the draft law based on the following criteria: –– the need and justification of draft law adoption; –– the conformity of the provisions of the draft law with the Constitution of the Russian Federation; –– the coordination of the provisions of the draft law with the international agreements and contracts in which the Russian Federation participates, as well as with the international legal act recognized by Russia; –– the timeliness of the draft law adoption; –– the validity of the choice of the draft law form as a law; 397

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–– the validity of the legal decisions (including the tendencies, perspectives and needs of the development of the respective field of law); –– the ensuring of the effective implementation of the planned legislative decisions with the help of financial, organizational and other mechanisms, liability measures (sanctions), incentives, etc.; –– the conformity of the estimated costs for the adoption and subsequent implementation of the draft law to the expected societal outcomes results of its entry into the force; –– the possible negative consequences (social, economic, environmental, etc.), which might arise as a result of the law adoption; –– the conformity of the draft law to the requirements of the legislative technique and the manner of use of the common terminology; –– the validity of the provisions of the draft law from the point of view of the modern achievements of the domestic and foreign legal science and legal practice. 17. In order to elaborate a common approaches to the preparation of the conclusions on the draft laws, the experts shall answer the following questions: –– how relevant the draft law is, if there is a need of its adoption; –– if there is a need of the legislative settlement of this situation (problem); –– if this issue relates to the sphere of competence of the Russian Federation; –– what the objectives of the legal regulation and expected impact of the future law are; –– if the alleged financial costs commensurable to the expected results; –– if there is an experience of regulating of the same (or similar) relationships (problems) in the foreign countries; –– if the provisions of the submitted draft law of the Constitution of the Russian Federation comply with the universally recognized principles of the international law and the international agreement of the Russian Federation; –– if the draft law corresponds to the strategic directions of the development of the regulating of the relevant sphere of relations; –– if there is a mechanism for the implementing the norms laid in it — to the what extent is it practically justified and efficient; –– whether the draft law, if adopted, may cause conflicts in the current legislation; –– whether it is necessary to amend the current regulative legal acts and/ or recognize the individual regulative legal acts as invalid (it is recommended to specify exactly which) with the adoption of a draft law; –– at what extent the draft law considers the current regulative legal acts in the relevant area of regulation; 398

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–– how completely the matters within its subject are settled in the draft law, whether there will be legal gaps after the adoption of the draft law; –– what subordinate regulative legal acts are needed to be adopted in connection with the publication of the draft law; –– if there are the options for legal solutions (settlement) of the corresponding problem. 18. The expertise on the alternative draft laws aimed at resolving of the same problem shall be performed at the same time. 19. In carrying out the scientific and legal expertise, the expert may submit the proposals for improving the legal regulation of that area of public relations, which is the subject of the regulation of this draft law along with the analysis and evaluation of the draft law. IV. The rights and obligations of the experts

20. The organizations and individuals involved in scientific and legal expertise of the draft law, have the right to: –– receive materials and documents, related to the preparation of the draft law (including the reviews and opinions received during its negotiation and discussion, including in the course of the regulatory impact assessment) required for the examination from the legislative machinery of the State Duma and the Council of Federation, the legislative machinery of the Committees of the Chambers of the Federal Assembly, the ministries and departments of the Russian Federation, other agencies and organizations involved in drafting the law; –– have the access to data banks of the legislation of the Federal Information Center; –– request the additional materials and documents for a comprehensive and objective evaluation of the draft law from the authority on whose initiative the expertise is executed; –– formulate a dissenting opinion on the draft law, which is attached to the conclusion of the expertise (if the expertise is carried out by the group of the experts); –– participate in the work of the committees of the Chambers of the Federal Assembly during the discussion of the relevant draft law with an advisory capacity; –– speak on the issues related to the conduction of the expertise of the draft law during the discussion of the draft law at the meeting of the State Duma; –– carry out, other actions that do not contradict the legislation of the Russian Federation and necessary for the conduction of the expertise of the draft law within its powers. 399

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21. The organizations and individuals involved in the execution of the scientific and legal expertise of the draft law shall: –– carry out a comprehensive, complete and objective analysis of the draft law submitted to the expertise; –– give the explanations for legislation concerning an opinion on the bill to the deputies, members of the Scientific Advisory Council; –– comply with the requirements established by the legislation on the organization and conduction of the expertise; –– ensure the confidentiality of information related to the conduction of the expertise of the draft law; –– ensure the completeness, theoretical and practical validity of the conclusions of executed expertise. V. The conclusion of the scientific and legal expertise

22. The results of the expertise are presented as the conclusion to that authority by the decision of which the expertise has been assigned. 23. The conclusion shall be made in writing and signed by all the experts involved in the expertise. 24. The text of the conclusion is adopted by the majority of the experts (if the group of the experts carries out the expertise). Special opinion of the expert (experts) who does not agree (do not agree) with the general conclusion is attached to the text of the conclusion. 25. The predictive estimates of the development of legislation in the relevant field and the suggestions for its improvement can be formulated in conclusion, in addition to the evaluation of the presented text of the draft law. 26. The content of experts’ conclusion is reported at a meeting of the committee responsible for this draft law, when considering the draft prior to its first reading at the meeting of the State Duma. 27. The prepared report is sent to the deputies of the State Duma for getting acquainted with the text of the draft law and other related materials (in the manner and within the timeframe established by the Regulations of the State Duma of the Federal Assembly of the Russian Federation). 28. The draft law submitted for expertise is considered at a meeting of the State Duma under the condition of taking into account the conclusion of the experts. 29. The draft law can be sent to the re-examination by the decision of the body that assigned the expertise of the draft law. 30. The repeated performance of the scientific and legal expertise is carried out in the following cases: –– the draft law was substantially changed if in the process of the discussion and revision of the draft law; 400

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–– if the submitted conclusion of the expertise does not meet the requirements; –– if it is not possible to make the firm conclusions about the positive or negative consequences of the introduction of the draft law into effect on the results of the expertise. Methodical recommendations for carrying out the legal monitoring

Prepared by the Institute of Legislation and Comparative Law under the Government of the Russian Federation 1. The entities of the legal monitoring may be of the Federal state power, of the local state power, the scientific research institutions of the legal and other profile, the institutions of the civil society, the business entities, the independent expert organizations (experts). 2. The criteria for determining the way of organizing the legal monitoring in the system of the authorities is the choice of the body (its structural unit), which will occupy a leading position in the monitoring activities, carry out coordination, methodological support, planning and direct control over the stages of legal monitoring execution. Such body should carry out the generalization, analysis and evaluation of the information received from other governments, the preparation of the final document on the results of the legal monitoring. 3. In carrying out the legal monitoring, it is expedient to involve the organizations (experts) engaged in sociological research (the public opinion polls, the questionnaires, the interviews, etc.). 4. It is advisable to provide the composing the joint programs of the legal monitoring: between the state authorities of the regions of the Russian Federation, included in one Federal District; between the state authorities of the regions of the Russian Federation of different federal districts. This would allow executing the comparative monitoring study of the problems (defects) of the legal regulation of the certain spheres of the social relations in procedure to elaborate the systematic measures. The necessary condition for the implementation of this type of legal monitoring is the use of the unified methods of its implementation, the indicators and the system of their evaluation. 5. The legislative bodies carry out the legal monitoring within the control of both the executive branch (the queries, the reports, etc.), and the execution of the laws. 401

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5.1. The legal monitoring can be implemented by: –– the legislative public state power body; –– the deputies and deputy associations (factions, groups); –– the permanent and temporary legislative body — the commissions and the committees; –– the structural subdivisions of the legislative machinery of the legislative body, including the legal service; –– the special structures for legal monitoring at the legislative bodies are the monitoring centers acting as a rule on the public principles. The centers may involve the representatives of the public, the scientific and educational institutions, the business structures and the expert community for the work. 5.2. The legislative bodies may also set up the bodies that coordinate the activities on the legal monitoring with the executive authorities and municipalities — the Monitoring Councils. 6. The entities of the legal monitoring in the system of executive bodies are the Government of the Russian Federation, the Ministry of Justice of the Russian Federation, the federal executive bodies, the territorial bodies of the federal executive bodies, the executive bodies of the regions of the Russian Federation. 7. The methods of organization the activity of the units authorized to carry out the legal monitoring in the executive authorities of the regions of the Russian Federation: 7.1. The establishment of the specialized unit for the legal monitoring execution in the system of the executive authorities of the region of the Russian Federation (the center, legal monitoring service). This specified unit is empowered to execute the monitoring activities, obtaining the necessary information at the request of the other executive bodies of the region of the Russian Federation, the summarizing of the results of the performed monitoring and the preparation of the final document. The adoption of the regulative legal act defining the powers, structure, procedures of the specified unit, as well as the amendments to the acts establishing the system of the executive authorities of the region of the Russian Federation will be required. 7.2. The establishment of the specialized unit (the department of the legal monitoring) within the existing supreme body of the executive authority of the region of the Russian Federation and its empowerment with the function for the legal monitoring execution in the sphere of the legislative activities, summarizing the results and preparation of the final document. In this case, it is necessary to entrench the procedure for obtaining by the specified unit the relevant information from other public authorities of the region of the Russian Federation, its subordinated institutions and organizations. 402

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7.3. The establishment of the specialized units within each body of the executive authority of the region of the Russian Federation, with the responsibility for the coordination of the legal monitoring and summarizing its results to the unit of the legislative activities of the supreme body of the executive authority of the region of the Federation. This will require the regulative entrenchment of the unified forms (procedures) of the implementation of the monitoring activities by these units, the procedure, the forms and the terms of the information provision. 8. The carrying out the legal monitoring and the compilation of its results (the preparation of the final document) can be imposed on the legal unit (the legal department, office, law department) of the relevant public authority. Such units are already implementing a number of functions relating to the legal monitoring (analyze and generalize the practice of the legislation adoption in the sphere of the activity of the ministry, the judicial practice, prepare reviews of the legislative, analytical and information material, etc.). 8.1 The implementation of the functions for fulfilment and/or planning, coordination, methodological support of the legal monitoring by the legal entities requires the amendments to the provision on the relevant subdivision, the entrenchment of the procedure and methodology of the legal monitoring fulfilment. It is also necessary to regulate the procedure for obtaining the information by the said units from other authorities, their subordinated institutions and organizations. 9. The methods of the entrenchment of the legal monitoring in the regulative legal acts of the regions of the Russian Federation: 9.1. The adoption of the regulative legal act (the law, the regulation), establishing the legal monitoring as a state function, the type of the activity of state authorities of the region of the Russian Federation and approving the procedure and methodology of its carrying out. 9.2. Adding the provisions institutionally defining the legal monitoring in the structure of the monitoring activities of the state authorities of the Russian Federation: the basics, goals, objectives, principles, entities, subjects and their responsibilities, the status of the results of the legal monitoring to the law of the region of the Russian Federation «On the Regulative Legal Acts». 9.3. The legal monitoring as a type of the activity of bodies of the public state power of the regions of the Russian Federation, which is carried out on a regular basis, shall be considered in the existing statutory regulative legal acts: the constitution (charter) of the region of the Russian Federation, the provisions on the state authorities of the region of the Russian Federation which are empowered to complete the legal monitoring. 9.4. In the administrative (official) regulation for the execution of the functions of the legal monitoring conduction the requirements to the pro403

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cedure of its execution, regulated the administrative procedures, the rights and the responsibilities of the persons involved in the fulfilment of the monitoring studies, forms and procedures for monitoring the fulfillment of the actions and decision-making during the legal monitoring fulfillment, the form of the monitoring results recognition in the rule-making and law enforcement activities of the executive authorities of the region of the Russian Federation shel be implemented. 9.5. In the regulative legal acts of the region of the Russian Federation the way of establishing of the legal monitoring organization and the procedure of its fulfillment, shall be entrenched: 9.5.1. The authority carrying out the powers of coordination during the conduction of the legal monitoring by different bodies (organizations) in the territory of the region of the Russian Federation. 9.5.2. The procedure of interaction between the authorities of the region of the Russian Federation involved in the conduction of the legal monitoring, in the part of the information exchange. 9.5.3. The general terms (frequency) of the monitoring activities execution specified within the approved plans of the legal monitoring, the term of the collected information presentation to the authorized body for the generalization, the term of preparation and sending the final document. 9.5.4. The approval form of the final document. 10. The legal monitoring is ineffective without the performing of the comprehensive analysis of all areas of the public relations with the assistance of the independent organizations. The conduction of the legal monitoring with the assistance of the independent expert organizations will allow recognizing the diversity of the current law enforcement practice. 11. The independent expert organizations include: the academic institutions; the public associations; the business associations (the Russian Union of Industrialists and Entrepreneurs, «Delovaya Rossia», «Opora Rossii» and others); the labor organizations; the organizations engaged in sociological studies, etc. 11.1. The independent expert organizations can be based on the approved methodology of the legal monitoring, as well as on the own scientific developments in this area in their activities. It is advisable to identify the body carrying out the coordination of legal monitoring conduction, summarizing the obtained results and providing the preparation of the final document, and the form of its approval. 11.2. The legal monitoring can be carried out by the independent expert organization as on its own initiative, so in connection with the appeal of the state bodies, the local authorities and other entities of the legal monitoring. 404

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11.3. The following requirements shall be met by the independent expert organizations in carrying out the legal monitoring: –– the impartiality and objectivity of the conclusions and the results of the expert evaluation; –– the completeness and accuracy of the results of the executed legal monitoring; –– the competence and high professional level of the independent experts. 11.4. To carry out the legal monitoring the independent expert organizations the specialists from different areas of knowledge can be involved (the lawyers, the economists, the financiers, the sociologists, etc.). 12. In the regulative legal acts, the status of the monitoring results shall be determined. 12.1. The conclusions on the results of the monitoring as the recommendations addressed to the specific bodies of the public state power and local power bodies, the officials, the organizations and institutions shall be formulated. 12.2. The forms of the response on the received monitoring results (the amendments to the legislation, the correction of the law enforcement practice, the transformations in the structure of the authorities, etc.) shall be offered. 12.3. The failure to take the appropriate actions shall be considered as the failure of the official duties, with the allocation to the perpetrators of the law (disciplinary) responsibility. 13. In the educational and research institutions, the theory and methodology of the legal monitoring can be taught. The higher educational institutions may provide training of students in the framework of the legal disciplines (the theory of state and law, the constitutional, administrative, municipal law), as well as in the speciality of the «state and municipal management». The scientific institutions, the Continuing Professional Development organizations may teach the theory and practice of the legal monitoring the officers of state bodies and local bodies. Methodical recommendations on the law implementation and the evaluation of its effectiveness

Prepared by the Institute of Legislation and Comparative Law under the Government of the Russian Federation 1. The law is the regulative legal act adopted by the legislative body of the state authority or at a referendum in accordance with the established 405

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procedure regulating the basic social relations and possessing the supreme legal force, among other legal acts. 2. The adopted law comes into force in the prescribed manner and acts on the territory of the Russian Federation or on the territory of the region of the Russian Federation. 3. The law is subject to the consistent and full implementation based on the principles of systematicity, complexity and optimality. 4. The mechanism of the law implementation includes: 4.1. The legal means (the cancellation and modification of the current legal instruments, the adoption of new legislative acts, regulations and procedures). 4.2. The social and psychological methods (the access to the information about the law, knowledge, attitudes and motivations of the lawful behavior). 4.3. The competency means (change in the volume and the nature of the authorities, the decision-making procedures, and others). 4.4. The personnel maintenance (the restructuring of the body, organization, personnel, the updating of the skills development). 4.5. The resource maintenance (the availability of the financial and material resources, information). 5. The carrying out the legal monitoring allows analyzing and comparing the purposes of the law and the actual results of the regulatory impact, evaluating of the effectiveness of the law. 6. It is advisable to use the following positive indicators of the law implementation: 6.1. The application of the rules of law for the preparation and adoption of the subordinate legal acts within the competence of the state bodies and the local state power bodies. 6.2. The usage of the rules of law for the solution of the functional (topical) problems in connection with the action of the relevant norms. 6.3. The usage of the rules of law for determination the status of the state and municipal authorities, the elaboration of the provisions on them, the plans and programs, administrative regulations. 6.4. The usage of the rules of law for establishment the status of the state and municipal officers, and the development of the official regulations of the officers, the determination of the limits of the official discretion, the evaluation of the skill level of the officers on taking office and certification. 6.5. The usage of the rules of law as the grounds for legally significant acts performance. 6.6. The usage of the rules of law for provision the participation of the citizens and the institutes of the civil society with the discussion of the draft legal acts. 406

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6.7. The usage of the rules of law for development and adoption of the legitimate local acts. 6.8. The implementation of the rules of law in the course of committing of the administrative and other actions in accordance with the competence of the authority (organization) — the meetings, sessions, visits, coordination, testing, financial transactions, etc. 6.9. The application of the rules of law in the preparation, execution and use of the legal documents (financial, analytical, accounting, administrative, reporting, etc.). 6.10. The usage of the provisions of the rules of law in the exercising the actions by the authority (organization) in connection with the direction to it address of the external legal acts (the judgments, the acts of prosecutorial response, the regulatory bodies) and the appeals (materials) of the civil society institutions. 6.11. Observance the requirements of the information transparency (the access to information about their activities) by the state bodies and local bodies. 6.12. To reduce the number of the offenses in certain areas. 7. It is recommended to consider the following negative indicators of the performance of the regulative legal act: 7.1. The failure to observe by the state bodies and local bodies of their competence in the publication of the regulative legal act. 7.2. The intervention in the sphere of the activity of another authority (organization). 7.3. The distortion of the meaning of the rules of law on the sub-legal level. 7.4. The wrongful or unjustified by the legal provisions of the regulative legal acts actions, decisions of the authority (organization). 7.5. The failure to use by the officials of the authorities (organizations) of the provisions of the regulative legal acts, inaction. 7.6. The availability of the legal and technical mistakes. 8. Subject to the special analysis are the norms, which may contribute to the corruption offenses in connection with the fact that: 8.1. The formulation of the norm allows the broad interpretation of the competence of the authority, the officials. 8.2. The usage of the different legal concepts that define the status of the authority (competence, rights, duties, powers, tasks, functions). 8.3. No connection between the rights of the authority and its duties, or an inaccurate wording that establishes this connection. 8.4. No interaction and coordination between the rights and obligations of several related authorities in the performance of common functions by them. 407

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8.5. The authorities and the officials are provided with the overly broad opportunities of the discretion. 8.6. The specific wording on the responsibility of the authority and its officials are substituted by the generalized, numerous references provisions. 8.7. The list of requirements to the entity, which obtains the state and municipal services in comparison with the law, unlawfully expanded. 8.8. The usage of the excessive amounts of the declarative, discretionary, blanket-referential provisions. 9. The obtained data allow to compare them with the objectives of the law, policy documents produced with the types of actions made for their achievement and the factual results of the development of the regulated sphere, sector, sub-sector organization (under the previously established indicators) and to determine the degree of the effectiveness of the law implementation. 10. The fulfiled analysis can lead to the publication of the subordinate acts, the adoption of the measures on the additional resource supply, restructuring, change of the competence of the executive authorities and the local governments, and so on. Methodical recommendations on information provision of legal monitoring performance

Prepared by the Institute of Legislation and Comparative Law under the Government of the Russian Federation I. The information used in the legal monitoring conduction

1. The implementation of the legal monitoring implies full and accurate information about the current terms and conditions of legislation, the statistical and other data. This information shall be maintained in the reference state, be organized according to the set tasks. 2. The main flows of the information, collected, analyzed and evaluated in the course of legal monitoring performing are: 2.1. The legal information on the extent of the regulative settlement of the social relations that make the object of the monitoring study. 2.2. The sectoral and intersectoral information collected by the federal executive state power bodies, the executive state power bodies of the regions of the Russian Federation and the local self-government within its competence (including the implementation of the control measures). 2.3. The legal information on the effect of the regulative legal acts collected and compiled by the courts, prosecutor, and other law enforcement agencies within its jurisdiction. 408

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2.4. The information obtained on the basis of the indicators provided by the statistics authorities, and supplement by the sectorial statistics of the authorities. 2.5. Information obtained in the course of the sociological research. 3. The information used for legal monitoring performing, can be as formal so informal. 3.1. The legal information is the legislation, the official publications (printed or electronic), the statistical data, and the public reports of the authorities, the judicial practice, and the archival documents. 3.2. The unofficial information is the publications in mass media, unofficial publications (books, brochures, reports, studies, etc.), and the materials of the Internet sites. 4. In the legal monitoring performing the analysis and evaluation of the quality, effectiveness and practice of the implementation of the legal acts are carried out: in compliance with the Constitution of the Russian Federation; the international treaties of the Russian Federation; the federal constitutional laws; the federal laws; the laws of the Russian Federation; the Fundamentals of the legislation of the Russian Federation; the Decrees of the President of the Russian Federation; the Statements of the Government of the Russian Federation; the legal acts of the federal executive bodies, other state bodies and organizations, issuing the legal acts in accordance with the legislation of the Russian Federation; the constitutions (charters) of the regions of the Russian Federation; the laws of the regions of the Russian Federation; the legal acts of the executive state power bodies of the regions of the Russian Federation; the municipal legal acts. 5. The sources of the information during the legal monitoring performance are: 5.1. The political documents (including the annual Presidential Application to the Federal Assembly, the programs of social and economic development of the Russian Federation, the plan of the legislative activities of the Government of the Russian Federation, the thematic programs and plans of the organizational and technical measures of the executive bodies). 5.2. The reports of the Council of Federation and the regions of the Russian Federation on the implementation and development of the legislation. 5.3. The reports on the performance of the Government of the Russian Federation, the federal executive bodies, the executive bodies of the regions of the Russian Federation and the local state power bodies. 5.4. The functional informational and analytical materials: –– the official site of the Government of the Russian Federation, ministries and other federal executive bodies, the executive bodies of the regions of the Russian Federation, local state power bodies (within the framework of the implementation of the Federal Law of February 9, 2009 No. 8-FZ 409

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«On Providing Access to Information about the Activities of the State Bodies and Local State Power Bodies, the Statements of the Government of the Russian Federation of November 24, 2009 No. 953»); –– the supreme judicial bodies (in particular, the data of the judicial practice and statistics, published in the «Bulletin of the Constitutional Court of the Russian Federation», «Bulletin of the Supreme Court of the Russian Federation»), the prosecution authorities, the Accounts Chamber of the Russian Federation, the regulatory bodies, the High Commissioner for Human Rights in the Russian Federation, the Children’s Rights High Commissioner under the President of the Russian Federation, the Central Bank of the Russian Federation, the Central Election Commission of the Russian Federation, the Public Chamber of the Russian Federation, the public organizations and associations. 5.5. The statistical data. 5.6. The information obtained from the citizens and the public associations. 5.7. The recommendations of the scientific institutions, the general data of the sociological surveys, the results of the consideration of the complaints, appeals of the citizens by the governmental authorities and the local state power bodies. 5.8. The information of the mass media. II. Collection and usage of the information for the legal monitoring performance

1. 1. The collection of the information on the object of research is one of the main stages of the legal monitoring, which is carried out on the basis of data available in the search information databases, the dossiers of the regulative acts, the acts of the law enforcement, the acts of courts, the official reports of the governmental authorities, as well as through the direct sociological researches conducting. 2. The collection of the information on the extent of the regulative settlement of the social relations included in the object of the monitoring research is carried out by the usage of primary techniques and methods of the consideration of the regulative legal acts, subject to the further analysis. At this stage the formation of the information collection on the regulative framework of the legal regulation of the relations within the elected object the monitoring, including subordinate, departmental acts, regulative acts of the regions of the Russian Federation, the municipal regulative acts occur. 3. The study of legal enforcement practice includes: –– the analysis and evaluation of the problems of the law enforcement practice in the course of implementation of the regulative legal act; 410

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–– obtaining the information from the representatives of the executive state power bodies and local state power bodies on the issues of the application of the provisions of the regulative legal act; –– the onsite study of the practice of the application of the regulative legal act, holding of the round tables, meetings with the state and municipal officials; –– the determination of conformity of the obtained information at the requests to the actual situation in the law enforcement of the regulative legal act. 4. The fulfilment of the statistical researches includes: –– the determination of the list of the required statistical data; –– the establishment of the sources of the necessary statistical data; –– the submission of the relevant request to the statistical authorities; –– the processing and analysis of the statistical data on the effects of the regulative legal act (the group of the regulative acts) in the sphere of relations under study with elaborating if required the graphic illustrations; –– the registration of the conclusions of the studies. 5. The procedure for collection and usage the information for the legal monitoring performance can be regulated in a separate chapter of a special federal law on state and municipal legal statistics. 6. In accordance with the requirements of the information transparency of the public authorities it is necessary to provide their obligations to inform the public about the results of legal monitoring and the measures taken by the mandatory publication of information on official websites and in mass media. III. The information formed on the basis of the sociological studies

1.The sociological studies are an important part of the legal monitoring. The monitoring bodies shall ensure the holding of such studies on common technical rules and on the basis of a clear plan. The sociological information obtaining in the course of the legal monitoring identifies the reasons of the low efficiency of the law action. 2. To carry out the legal monitoring the information on the state of the justice of the participants of the relevant legal relationships is necessary. The object of the study is: –– the justice of the enforcers; –– the public opinion of the various groups of the population; –– the opinion of the representatives of the civil society; –– the positions, orientations, evaluations of the business structures representatives; 411

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–– the positions and evaluations of the representatives of all the public associations. 3. The sociological information shall be used at all stages of the legislative and enforcement activities: the pre-design stage, the stages of preparation, the adoption, the implementation of the law. At each stage, the collection of the sociological information has a specific character associated with both the objectives and the applied methods. 3.1. In the pre-design stage the social and legal regulatory objectives, analyzes the needs and interests of the participants of the future legal relationships, studies the existing regulatory practice, the place and need of the legal regulation are also determined. The sociological methods are used to detect: –– the degrees of awareness of their interests by the different social groups; –– the attitude of these groups to actually fasten relations (regulations); –– the attitude to the appropriateness of their consolidation in the form of legal norms. 3.2. At the stage of preparation and adoption of the law: –– the attitude of both the citizens and the various categories of the experts to specific legal provisions are analyzed proposed in the law; –– the readiness of the citizens and officers of the executive body to the application of these provisions is evaluated; –– the future effectiveness of the law is foresighted; –– the procedures of the sociological support of the law are elaborated. 3.3. At the stage of a comprehensive sociological study of the effects of implementation of the adopted norms for the citizens and other participants of the regulated legal relations is held by the implementation: –– the population groups, selected as an object of the sociological study (as the social groups, which interests may be harmed as a result of the law action, so the social groups gain most from the changes in the legal regulation) are defined; –– the study of the dynamics of the public opinion of the various groups is planned and organized; –– the contradictions between the expert and theoretical estimates of the effectiveness of the law action and the people’s attitude to the situation that has arisen as a result of the law action are revealed; –– the analysis of not only the legal but also other social actions on the law implementation is held. 4. The monitoring of the justice can also be carried out in the course of the sociological support of the adopted by the executive bodies’ decisions. The information is collected on the indicators and methodology adopted simultaneously with the management decisions. 412

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5. The knowledge of the settings, representations, behavioral stereotypes of the population within the scope of the law action is an essential prerequisite of the effective law enforcement activity, so in the course of the legal monitoring it is necessary to organize a sociological study of the subjective side of the law action, primarily of the justice of the population. 6. The mostly used form of sociological ensuring of the legal monitoring is the study of the justice of the law enforcers with the help of the expert evaluations, complemented by an analysis of the public opinion of various groups of the population. 6.1. The questionnaire of the expert for a specific scope of regulation includes the following units (model questionnaire of the expert): –– the state of the legal regulation; –– the level of the effectiveness of the current legislation; –– the positive and negative factors affecting the effectiveness of the authorities activities; –– the separation of powers; –– the major issues; –– the typical violations in the field of regulation; –– the usage of the foreign experience; –– the assessment of the prospects of the legislative regulation of the respective sphere. 6.2. The studies of the public opinion, included in the legal monitoring may be both permanent and operational. 6.2.1. The permanent studies are based on the usage of the same study procedures and carefully selected questions. The authority responsible for the monitoring determines its frequency. 6.2.2. The operational studies are designed to identify the population’s attitude to this or that law (legal decision), the regulative legal act, the norms, the actions of the authorities and its representatives at some point. 6.2.3. The following shall be determined: –– how the population perceive the innovations; –– the reason for the big difficulties for the citizens at using the rights provided by the law; –– the reaction of the citizens to the actions of the authorities on the application of specific laws or regulations. 7. In the course of monitoring of the attitudes of the citizens to the activities of the authorities shall be studied: –– the expectations and demands from the citizens to the government agencies; –– the evaluation of the quality of the provided public services; –– the degree of the openness and accountability of the authorities, state and municipal officers to the civil society; 413

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–– the attitude to the state and municipal officers; –– the evaluation of the interaction between the authorities and public organizations by the citizens; –– the assessment of the collegiate bodies, and public councils under the executive branch of the state power; –– the appeal to the authorities. 8. The sociological surveys shall be carried out: –– by the public organizations; –– by the public authorities; –– by the representatives of the business community; –– by the sociological centers and scientific organizations; –– by the other organizations, interested in it. 9. The coordination and planning of the surveys by the different sociological centers and researchers shall be held by the authority, which carries out the legal monitoring. The choice of the form and the procedure of the sociological studies, the selection of the sociological centers shall be carried out by the coordinating center in concern to the set problem. 10. The expert evaluations allow obtaining the concentrated information on the gaps and contradictions of the law enforcement, on the shortcomings of the law enforcement directly from the persons included in the legal regulation of a particular sector. It is advisable for the sociological study of the law action to use, particularly, the method of the expert evaluations.

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Acknowledgement The team of authors expresses sincere gratitude to Andrey Alexandrovitch Klishas — Doctor of Law, for his help while preparing this volume for being issued Коллектив авторов выражает искренюю благодарность Андрею Александровичу Клишасу — доктору юридических наук, за его помощь при подготовке этого издания

The Parliamentary Law of the Russian Federation

Monograph Editor-in-Chief Academician of the Russian Academy of Sciences T.Y. Khabrieva

English translation edited by Ph.D A.E. Pomazanskiy, Ph.D S.V. Shulga Подписано в печать 14.04.2016. Формат 60×90/16. Бумага офсетная. Гарнитура NewtonC. Печать офсетная. Усл. печ. л. 26,0. Тираж 500 экз. Заказ № .

The Institute of Legislation and Comparative Law under the Government of the Russian Federation