The constitutional status of the Federation Council of the Federal Assembly of the Russian Federation. Status and Powers of the Federation Council of the Federal Assembly of the Russian Federation
Chapter I. Social and legal nature and features of the constitutional and legal status of the Federation Council of the Federal Assembly of the Russian Federation.
§one. The social and legal nature of the Federation Council, its role in the bicameral system of the Russian parliament.
§2. Features of regulation of the constitutional and legal status of the Council
Federation.
§3. Features of the formation of the Federation Council under the legislation of the Russian Federation. The current procedure for the formation of the Federation Council.
§four. Principles of organization and activity of the Federation Council, its structure and functions.
§5. Powers of the Federation Council.
§6. Constitutional and legal status of members of the Federation Council.
Chapter II. The role of the Federation Council of the Federal Assembly of the Russian Federation in the development of federal relations: the current state and problems of improvement.
§one. Participation of the Federation Council in the legislative support of the federal statehood of modern Russia.
§2. The mechanism of interaction between the Federation Council and the State Duma.
§3. Features of the relationship between the Federation Council and the President
Russian Federation and the Government of the Russian Federation.
§four. Legal and institutional framework for the interaction of the Federation Council with the constituent entities of the Russian Federation: current state and improvement tasks.
Recommended list of dissertations
Representative nature of the Federation Council of the Federal Assembly of the Russian Federation 2005, candidate of legal sciences Kirichenko, Pavel Nikolaevich
The constitutional and legal status of the federal and regional parliaments of the Russian Federation and the problems of its improvement: a comparative legal study 2011, Doctor of Law Shaklein, Nikolai Ivanovich
Federation Council of the Federal Assembly of the Russian Federation: constitutional and legal foundations for the formation and activities 2008, candidate of legal sciences Kazakova, Anastasia Alexandrovna
Activities of the Federation Council of the Federal Assembly of the Russian Federation to improve federal relations 2011, candidate of political sciences Selezneva, Olga Aleksandrovna
Federation Council of the Federal Assembly of the Russian Federation: Issues of constitutional theory and practice 2002, candidate of legal sciences Vikharev, Andrey Anatolyevich
Introduction to the thesis (part of the abstract) on the topic "The constitutional and legal status of the Federation Council of the Federal Assembly of the Russian Federation in the context of the development of federal relations"
Relevance of the research topic
The Russian Federation is defined in Article 1 of the Constitution of the Russian Federation as a democratic federal state of law. The combination of these principles involves the formation of the constitutional status of public authorities in accordance with the principle of separation of powers and the principles of the federal structure, enshrined in Art. 5 of the Constitution of the Russian Federation. These include: state integrity, unity of the system of state power, delimitation of jurisdiction and powers between state authorities of the Russian Federation and state authorities of the constituent entities of the Russian Federation.
Among the highest bodies of state power, the formation of which is due to the federal nature of Russia, a special place is occupied by the Federal Assembly of the Russian Federation (hereinafter referred to as the Federal Assembly of the Russian Federation). The constitutional and legal status of one of the chambers of the Russian parliament - the Federation Council of the Federal Assembly of the Russian Federation (hereinafter referred to as the Federation Council) has become the object of close attention since its inception domestic science constitutional law. At the same time, the relevance of this topic does not decrease. On the contrary, the events of recent years indicate an increase in its significance due to the emergence of new aspects that need in-depth, systematic research. These include, in particular, the question of the real role of the Federation Council in the system of state power and the specifics of improving its status in the context of the tasks of strengthening statehood and developing federal relations.
In the Address to the Federal Assembly of the Russian Federation on November 5, 2008, the President of the Russian Federation, among the priority areas for the development of federal relations, highlighted the task of increasing the role
of the Federation Council in reflecting the interests of the constituent entities of the Russian Federation, coordinating the activities of state authorities and local governments. The proposal of the President of the Russian Federation on a new procedure for the formation of the Federation Council only from among persons elected to representative bodies of power and deputies of local self-government of the corresponding subject of the Federation has been implemented in a legislative manner, the “residency requirement” has been abolished, which makes it possible to additionally involve in the work of citizens who have passed the procedure of public election, having experience in working with voters and representing not only the authorities of the subject of the Federation, but also, most importantly, directly its population1.
Proposals to improve the status of the Federation Council and specific legislative measures taken recently in this direction require appropriate scientific and practical reflection, new research on the role of the Federation Council in strengthening and developing the federal statehood of Russia.
The foregoing testifies to the relevance of the analysis of theoretical, historical and constitutional and legal aspects of the content and features of the constitutional and legal status of the Federation Council, which make it possible to assess the level of effectiveness of its activities aimed at implementing the tasks of improving federal relations in Russia.
The degree of scientific development of the topic
In domestic legal science, the analysis of theoretical, historical and constitutional and legal aspects of the content and features of the constitutional and legal status of the Federation Council is a direction that has not lost its significance as a subject of systematic research, taking into account the latest changes in legislation and in
1 See: Federal Law of the Russian Federation of February 14, 2009 No. 21-FZ “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with a Change in the Formation of the Federation Council of the Federal Assembly of the Russian Federation” // Russian newspaper. February 18, 2009. practice of development of the Russian statehood.
It should be noted that few works are devoted to a special analysis of the constitutional and legal status of the Federation Council in the context of linking it with the peculiarities of the federal structure and the development of the federal statehood of Russia at the present stage. As a rule, this issue is studied in conjunction with only certain aspects of the federal structure of Russia, or the Federation Council is analyzed as part of the whole - the Federal Assembly of the Russian Federation.
There are a number of problems in developing the conceptual apparatus and improving the constitutional and legal regulation of the status of the Federation Council. Insufficient theoretical development of such concepts as “status of the Federation Council”, “legal status of the Federation Council”, “constitutional and legal status of the Federation Council”, “basic elements of the constitutional and legal status of the Federation Council” and others cannot but affect the practice of their application . The current federal constitutional legislation does not clearly distinguish between the categories "legal status of the Federation Council" and "constitutional and legal status of the Federation Council", does not define the concept and forms of changing the constitutional and legal status of a subject of the Federation.
Paying tribute to the contribution of domestic scientists to the development of the issues chosen by the author, at the same time it should be noted that the potential of constitutional and legal research in this area is far from being exhausted. In addition, it is necessary to generalize and systematize
2 Among the works devoted to this issue or its individual aspects, one can name, in particular: Avakyan S.A. The Federal Assembly in the system of state power of the Russian Federation // The Constitution of the Russian Federation and the development of legislation in the modern period: Materials of the All-Russian Scientific Conference. M., T.1 2003.; Zenkin S.A. Federation Council: appoint or elect? // Ros. Federation. M., 1995. No. 15.; Mironov S.M. Constitutional and legal status of the Federation Council and its interaction with other public authorities // Journal of Russian Law. M., 2003. No. 1 -S. 3-8.
3 Among the works devoted to this issue or its individual aspects, one can name, in particular: Avakyan S.A. The Federal Assembly is the parliament of Russia. M., 1999.; Barsengov A.S., Koretsky V.A. Federal Assembly of the Russian Federation. M., 1997.; Gorobets V.D. Parliament of the Russian Federation. M., 1998. Legislative and law enforcement practice in the area under study, both at the federal and regional levels.
Thus, the chosen topic of the dissertation research needs in-depth research and comprehensive development.
Goals and objectives of the dissertation research
The objectives of this dissertation research are to comprehend and substantiate the social and legal nature and features of the constitutional and legal status of the Federation Council, its role in strengthening and developing federal relations based on the general theoretical provisions of Russian legal science, as well as an analysis of existing practice.
To achieve the set goals, the following tasks were solved in the work: definition of the concept, content and main elements of the constitutional and legal status of the Federation Council;
Carrying out a systematic analysis of the functions of the Federation Council;
Studying the features of the formation of the Federation Council under the legislation of the Russian Federation, as well as conducting a critical analysis of the current procedure for the formation of the Federation Council;
Disclosure of the features of the powers of the Federation Council as a chamber representing the interests of the constituent entities of the Russian Federation;
Studying and submitting proposals for improving the structure of the Federation Council and the procedure for its activities;
Study of the mechanism of interaction between the Federation Council and the State Duma as a tool for ensuring and developing federal relations in Russia;
Identification of the peculiarities of the relationship of the Federation Council with the President of the Russian Federation and the Government of the Russian Federation in the conditions of the federal statehood of Russia;
Analysis of the current state and tasks of improving the legal and institutional framework for interaction between the Federation Council and the subjects of the Russian Federation.
The object of the dissertation research is public relations regulated by the norms of constitutional law, revealing the content and features of the constitutional and legal status of the Federation Council in the context of the development of federal relations.
The subject of the dissertation research is the constitutional and legal norms governing the general and particular in the constitutional and legal status of the Federation Council, in the context of the development of federal relations.
The theoretical basis of the dissertation research is based on the use of modern scientific concepts parliamentarism and federalism, constitutional and legal doctrines of the state system.
The general theoretical basis of the study was the works of such modern domestic legal scholars as: S.A. Avakyan, A.S. Avtonomov, JI.B. Andrichenko, K.V. Aranovsky, M.V. Baglai, I.N. Bartsits, L.F. Boltenkova, N.S. Bondar, O.N. Bulakov, N.A. Varlamov, V.I. Vasiliev, N.V. Vitruk, G.A. Gadzhiev, I.V. Grankin, M.V. Zolotareva, T.D. Zrazhevskaya, V.V. Ivanov, V.T. Kabyshev, JI.M. Karapetyan, A.N. Kokotov, I.A. Konyukhova (Umnova), E.I. Kozlova, N.M. Kolosova, K.D. Korkmasova, B.S. Krylov, V.A. Kryazhkov, O.E. Kutafin, V.O. Luchin, A.V. Malko, M.A. Mityukov, N.A. Mikhaleva, N.I. Matuzov, V.V. Nevinsky, S.I. Nekrasov, L.A. Nudnenko, Zh.I. Hovsepyan, M.A. Sadykin, G.D. Sadovnikova, V.E. Safonov, B.A. Strashun, E.V. Tadevosyan, Yu.A. Tikhomirov, B.N. Topornin, T.Ya. Khabrieva, V.A. Cherepanov, V.E. Chirkin, S.M. Shakhrai, B.S. Ebzeev and others.
I.P. Ilyinsky, A.I. Kim, M.G. Kirichenko, S.S. Kravchuk, N.Ya. Kuprits, I.D. Levin, A.I. Lepeshkin, A.I. Lukyanov, B.C. Osnovin, V.A. Rzhevsky, Yu.G. Sudnitsyn, Ya.N. Umansky, I.E. Farber, M.A. Shafir, B.V. Shchetinin and others.
Of essential importance for understanding the objectivity of the processes taking place both in the past and at the present time was the study of the works of jurists who specialize in their research on the topics chosen by the dissertation. Among them are: A.I. Abramova, A.S. Adamovich, I.A. Alabastrova, V.V. Balytnikov, O.N. Bulakov, I.V. Grankin, Yu.A. Dmitriev, V.B. Isakov, V.V. Komarova, M.V. Prokhorov, T.S. Rumyantsev, G.D. Sadovnikova, L.V. Smirnyagin and others. Among practitioners, it should be noted A.A. Vikharev, G.E. Burbulis, A.P. Lyubimova, S.M. Mironova, B.V. Miroshina, L.Ya. Poluyan, V.F. Shumeiko, A.M. Yusupovsky.
Methodological basis of the dissertation research
The study of the peculiarities of the constitutional and legal status of the Federation Council was carried out in accordance with a scientifically based methodology that ensures, if possible, the choice of the most appropriate and effective methods.
The dissertation proceeded from the fact that the legal phenomenon considered in the dissertation - a set of substantive and procedural characteristics, has a complex, multi-level character.
In solving the tasks set in order to achieve the goal of the dissertation research, in the analysis of Russian legislation, the formation of definitions, proposals and conclusions, the dialectical method, the method of system analysis, logical, historical, comparative legal, sociological and statistical research methods were used. The author conducted the analysis on the basis of such scientific principles as the unity of the abstract and the concrete, the general and the special, the singular and the unique. Their application allowed the dissertation student to explore the objects under consideration in interconnection, integrity, comprehensively and objectively.
Normative basis and empirical basis of dissertation research
The work studied the provisions of the Constitution of the Russian Federation, federal constitutional laws and federal laws, regulations of the chambers, other regulatory legal acts of the Russian Federation; constitutions (charters), laws and other normative legal acts of the constituent entities of the Russian Federation, decisions Constitutional Court Russian Federation and other courts of the Russian Federation.
In addition to national legislation, the dissertator got acquainted with the constitutions of some foreign countries and their legislative practice, as well as international legal documents in this area in order to identify progressive experience, as well as to establish the level of application of international legal standards in the Russian Federation regarding the issue under study.
The guiding political documents and information and analytical materials used in the work (in particular, the messages of the President of the Russian Federation and reports of the Federation Council), reviews judicial practice, materials of scientific and practical conferences, periodicals, statistical and sociological data made it possible to identify urgent problems related to the object of study and to identify ways to solve them.
The scientific novelty of the dissertation research consists in a comprehensive study of the current state of the constitutional and legal status of the Federation Council in the context of the development of federal relations in Russia in the period after the adoption of the Constitution of the Russian Federation in 1993.
The depth and comprehensiveness of the study are ensured by the use of general theoretical premises and conclusions, the formulation of scientific and practical proposals, the definition of prospects and forecasting the situation in the future.
Basic provisions for defense
The scientific novelty of the dissertation research is reflected in the following conclusions and provisions submitted for defense:
1. In Russia, as a federal state, the Federation Council has a dual nature. On the one hand, as a chamber of the national parliament, the Federation Council is called upon to carry out its activities in the interests of the entire Russian people. On the other hand, this chamber represents the interests of the subjects of the Russian Federation. This causes the Federation Council to have special tasks and functions related to reflecting the interests of both the Federation as a whole and the constituent entities of the Russian Federation, with the search for a balance of federal and regional interests.
The dual nature of the Federation Council affects the content of its constitutional and legal status, which is understood as the principles of organization and activity regulated by the norms of constitutional law, the procedure for the formation, powers, guarantees of the activities of the Federation Council; organizational and legal forms of relations with other state bodies in the Russian Federation.
2. The procedure for forming the Federation Council that is in force in accordance with the Federal Law of August 5, 2000 “On the procedure for forming the Federation Council” is acceptable and, in this regard, it seems more promising in the modern period not to change, but to improve the legislative regulation of the current procedure for forming the Federation Council.
Improving the legislative regulation of the procedure for appointing and electing members of the Federation Council, however, does not remove the possibility of optimizing the method of forming the chamber, which is proved by a wide discussion and the multivariance of proposals. The choice of such a method should be based on the following requirement: the Federation Council cannot be a repetition of the State Duma, the composition of the Council
Federation should adequately reflect the constitutional principle of representation of the constituent entities of the Russian Federation.
3. The Federation Council exercises legislative, representative and control powers.
A wide range of legislative powers of the Federation Council creates favorable legal opportunities for active work on the legislative support of federal statehood. Special responsibility rests with the Federation Council in exercising the powers to obligatory consider federal laws adopted by the State Duma on issues federal budget; federal taxes and fees; financial, currency, credit, customs regulation, 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. It seems important that the Federation Council not only pay special attention to these issues, but also carry out its own legislative work and make more active use of the right of legislative initiative.
The powers exercised within the framework of the representative function of the Federation Council can be classified into several subgroups: a) personnel powers; b) powers to resolve extreme situations; c) resolving issues of the federal structure; d) other powers. The degree of importance and scope of this type of authority of the Federation Council testify to the expansion of the chamber's ability to influence the formation of the personnel of the state power system, ensure federal statehood, and protect the rights and interests of the constituent entities of the Russian Federation. At the same time, when evaluating the activities of the Federation Council in the exercise of these powers, one cannot fail to note the dominance of the role of the President of the Russian Federation as the head of state and the performance by the chamber in some cases of the function of an extra, “approving the will of the President”.
The control powers of the Federation Council include: a) control over the observance and execution of laws; b) budgetary and financial control; c) control over the activities of the executive branch; d) control over the sphere of state administration related to the implementation by the Federation Council of personnel appointments and dismissal from office. The current normative regulation of these powers confirms the importance of their systematization and definition in a special federal law on the control powers of the Federal Assembly of the Russian Federation.
4. At the present stage, the Federation Council shows insufficient active participation in the process of legislative support of the federal statehood of modern Russia. His activities in introducing legislative initiatives, reviewing and approving federal laws, and conducting analytical work in this area are characterized by an unsystematic and inconsistent approach, often contradicting the very idea of upholding federalism as the basis for harmonious relations between the Federation and its subjects.
In order to enhance the role of the Federation Council in the legislative support of the federal statehood of modern Russia, it is necessary to intensify the use of the right of legislative initiative, increase responsibility for approving federal laws and adopting relevant resolutions. Important in planning and implementing legislative activity, taking into account the problems of the federal structure, would be the introduction of the practice of preparing annual special reports of the Federation Council on the state and prospects for the development of federal relations in Russia, organizing and holding annual forums to discuss contemporary problems of Russian federalism.
5. In the context of restricting the activities of a member of the Federation Council by the interests and will of the population and state authorities of the subjects
The Russian Federation, whom he represents, gives no reason to say that a member of the Federation Council has a free mandate. It seems that, both legally and in fact, he is endowed with the so-called "regional representative" mandate, which obliges a member of the Federation Council to always be guided by the tasks of balancing national interests and the interests of the region. Ultimately, a member of the Federation Council has the task of organically combining three types of interests in carrying out his activities: national interests, the interests of the regions as a whole, and the interests of a particular subject of the Federation.
6. It seems important to expand the possibilities of the Federation Council to participate in the formation and direction of the activities of the Government of the Russian Federation, to provide for the need for the President of the Russian Federation to obtain the conclusions of relevant committees and commissions of the Federation Council in order to appoint a number of ministers; assign to the Federation Council the powers to approve the programs of the Government of the Russian Federation concerning the strengthening of federal statehood and regional development; grant the Federation Council the authority to express no confidence in individual members of the Government responsible for ensuring constitutional legality, strengthening and improving the security system and federal relations, and developing regions and local self-government.
7. The fundamentals of interaction between the Federation Council and the constituent entities of the Russian Federation need to be improved. The following areas of priority measures can be identified:
Harmonization of federal and regional legislation in the field of joint jurisdiction in order to reasonably take into account the interests of the subjects of the Federation when adopting federal laws;
Improving the activities of the Federation Council to support the legislative initiative of the subjects of the Federation;
Creation of coordinating bodies formed with the simultaneous participation of representatives of the Federation Council and constituent entities of the Russian Federation and involved in the discussion of both legislative policy in general and specific laws and bills;
Search for new forms of interaction between the Federation Council and state authorities of the constituent entities of the Russian Federation.
Practical significance of the dissertation research The results obtained in the course of the research and the practical proposals formulated on their basis are aimed at improving the regulation of the constitutional and legal status of the Federation Council, increasing its role in strengthening and developing federal relations in Russia. The materials of the dissertation research can be used both in the preparation of bills and in practical activities government agencies.
The practical significance of the results of the study also lies in the fact that the conclusions and proposals outlined by the dissertation can be used in scientific and pedagogical work in universities and other educational institutions for teaching constitutional law and special courses, in the practical activities of federal state authorities and state authorities of the constituent entities of the Russian Federation . Approbation of the results of the dissertation research The main scientific and practical conclusions of the dissertation research are set out in publications, in abstracts and scientific reports, reports at all-Russian, regional scientific and practical conferences, round tables and seminars, including at the I Constitutional Readings "Constitution of the Russian Federations and Development of Legislation in the Modern Period” (Moscow, February 17-21, 2003), at the All-Russian Scientific Conference “Constitutional Foundations of the Judiciary” (October 23, 2003), at interuniversity and interdepartmental round tables of graduate students and students on jurisprudence of the Moscow State Law Academy (2005), at the All-Russian Scientific Conference "Problems of Formation of State Policies in Russia: Status and Prospects" (May 31, 2006), at the II Constitutional Readings "Constitutional Law and International Law: Problems of Interaction in Modern Conditions of Development" (g . Moscow, October 14-17, 2008), between university conferences of young scientists and graduate students.
The conclusions and results of the research were formed and were used to a certain extent in the course of the dissertation work as an assistant to a member of the Federation Council (in 2004-2005), as well as a member of the Expert Council of the Commission on Regulations and Organization of Parliamentary Activities of the Federation Council (in 2006-2008) .
The structure of the dissertation research is determined by the object, goals and objectives of the research. The dissertation consists of an introduction, two chapters, including ten paragraphs, a conclusion and a bibliography.
Similar theses majoring in Constitutional Law; municipal law”, 12.00.02 VAK code
Federation Council in the system of state power of the Russian Federation 2004, Doctor of Law Bulakov, Oleg Nikolaevich
Problems of improving the constitutional and legal regulation of the activities of legislative bodies in the Russian Federation 2007, Doctor of Law Grankin, Igor Vasilyevich
Legal Status of the Chambers of the Federal Assembly of the Russian Federation: Status and Prospects 2006, candidate of legal sciences Tarasova, Ekaterina Pavlovna
Relations between the legislative (representative) body of state power of the republic and the Federal Assembly of the Russian Federation: Problems of interaction and responsibility 2003, candidate of legal sciences Gayzetdinova, Yulduz Rafaelevna
Representation of the subjects of the Russian Federation: doctrinal foundations and features of constitutional and legal regulation 2011, Doctor of Law Filippova, Natalya Alekseevna
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Conclusion
In Russia, as a federal state, the Federation Council has a dual nature. On the one hand, being a chamber of the national parliament, the Federation Council is a federal legislative body designed to carry out its activities in the interests of the entire Russian people. On the other hand, this chamber was established as a public authority representing the interests of the constituent entities of the Russian Federation. This causes the Federation Council to have special tasks that are inextricably linked with the reflection of the interests of both the Federation as a whole and its subjects. Hence, the nature of the activities of the Federation Council should be associated with the search for a balance of federal and regional interests.
The Federation Council plays an important role as the second chamber of the Russian parliament, which ensures the role of the legislative body that considers the laws adopted by the State Duma, firstly, from the point of view of observing an objective compromise of the interests of the nation and regions, and secondly, from the position of ensuring the quality of laws and following the requirements legislative jurisprudence. In the context of the analysis of the place in the system of power hierarchy, both chambers are equal in rights and their competence as national legislative and representative bodies is relatively balanced under the Constitution of the Russian Federation.
Currently, there is no special law that comprehensively determines the constitutional and legal status of the Federation Council at the system level. According to the dissertation candidate, it is expedient to adopt the Federal Constitutional Law “On the Federal Assembly of the Russian Federation”, which determines the status of the Federation Council. This law, following the construction proposed earlier, should include legal norms that reveal the features of the nature and the main elements of the constitutional and legal status of the Federation Council.
The constitutional and legal status of the Federation Council in this work is understood as the principles of organization and activity regulated by the norms of constitutional law, the procedure for the formation, powers, guarantees of the activities of the Federation Council; organizational and legal forms of relations with state bodies in the Russian Federation.
Improving the legislative regulation of the procedure for appointing and electing members of the Federation Council does not, however, remove general question about the possible optimization of the method of forming the chamber, which is proved by a wide discussion and the multivariance of proposals. It seems that the choice of such a method should be based on the following fundamental criteria: the Federation Council cannot be a repetition of the State Duma, either in terms of exercising a representative function or in terms of methods of formation. Its composition should adequately reflect the constitutional principle of representation of the constituent entities of the Russian Federation.
Denoting the functions of the Federation Council, the dissertator considered it appropriate to single out the following main ones: legislative, representative and control.
The purpose of the main - legislative function of this chamber is expressed in the implementation by the Federation Council, firstly, of the role of an effective filter of legislative activity and, secondly, in giving the law the quality of legitimacy.
216 As noted above, the Constitution of the Russian Federation limits the number of cases in which federal constitutional laws are adopted and does not provide for the adoption of a federal constitutional law on the Federal Assembly of the Russian Federation. Hence, the problem can be solved only by expanding this list and indicating directly in the Constitution of the Russian Federation the possibility of adopting other constitutional laws, including on the Federal Assembly of the Russian Federation. The rigid mechanism for amending the current Constitution of the Russian Federation complicates practical solution this task. Perhaps this is the main reason why the discussion on the adoption of a federal constitutional law on the Federal Assembly of the Russian Federation still does not go beyond the scope of scientific circles.
The legislative function is closely connected with the representative function of the Federation Council. When approving laws adopted by the State Duma, the Federation Council examines them not only in terms of quality and compliance with the requirements of legal technique, but seeks to ensure an objective compromise between the interests of the entire Russian people and the interests of the people (population) of the subjects of the Federation.
The control functions of the Federation Council have not been properly reflected in the Constitution of the Russian Federation and have not been systematized at the legislative level due to the lack of a special law regulating legal status Federal Assembly. Summarizing the current constitutional norms, the following main areas of the chamber's control function should be singled out: 1) budgetary and financial control, 2) control over the activities of the executive branch; 3) control in the sphere of foreign policy activity; 4) control over the sphere of public administration.
Based on the functions of the Federation Council, its powers can be divided into three main groups: legislative, representative and control.
The legislative powers of the Federation Council include the right of legislative initiative; consideration of federal laws adopted by the State Duma with subsequent adoption of a decision on their approval or rejection; participation in the procedure for overcoming disagreements that have arisen between the chambers of the Federal Assembly in connection with the rejection by the Federation Council of a federal law adopted by the State Duma; mandatory consideration of federal laws on issues established by Art. 106 of the Constitution of the Russian Federation; reconsideration of the federal law rejected by the President of the Russian Federation and approved by the State Duma in the previously adopted edition in the order of Part 3 of Art. 107 of the Constitution of the Russian Federation; approval of federal constitutional laws (part 2 of Art.
108 of the Constitution of the Russian Federation); consideration and approval of the law of the Russian Federation on the amendment to the Constitution of the Russian Federation (Articles 108, 136 of the Constitution of the Russian Federation).
Such a wide range of legislative powers of the Federation Council creates favorable legal opportunities for active work on the legislative support of federal statehood. Special responsibility rests with the Federation Council in exercising the powers to obligatory consider federal laws adopted by the State Duma on federal budget issues; federal taxes and fees; financial, currency, credit, customs regulation, 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. It seems important that the Federation Council not only pay special attention to these issues, but also carry out its own legislative work and make more active use of the right of legislative initiative.
Within the framework of the representative function, the powers of the Federation Council can be classified into several subgroups: a) personnel (institutional) powers; b) powers to resolve extreme situations; c) resolving issues of the federal structure; d) other powers.
The degree of importance and scale of the exclusive constitutional powers of the Federation Council for the implementation of its representative function testify to the expansion of the possibilities of the Federation Council to influence the formation of the personnel of the state power system, ensure federal statehood, and protect the rights and interests of the constituent entities of the Russian Federation. At the same time, assessing the activities of the Federation Council in the implementation of these powers, one cannot but note the dominance of the influence of the President of the Russian Federation as the head of state and the performance by the chamber in some cases of the role of an extra, “approving the will of the President”.
The control powers of the Federation Council are only partially defined in the Constitution of the Russian Federation. At the same time, based on the practice of their regulation in federal laws and in the Regulations of the Federation Council, the powers of the chamber include the following: control over the observance and execution of laws; budgetary and financial legislation; for the activities of the executive branch; for the sphere of state administration related to the implementation by the Federation Council of personnel appointments and dismissal from office. The disparity in the regulation of these powers confirms the importance of their systematization and definition in the Federal Law on the Federal Assembly of the Russian Federation or in a special federal law on the control powers of the Russian Parliament.
Considering the mechanism of relations between the Federation Council and the President of the Russian Federation, the Government of the Russian Federation, the State Duma of the Russian Federation, and the constituent entities of the Russian Federation, it is important to emphasize both the positive dynamics and the problems associated with the insufficient development of existing forms of interaction.
The subject of special attention on the part of science should be
01 *7 Interaction of the Federation Council with the subjects of the Russian Federation.
Despite the intensive development of federal legislation, which specifies the legal and institutional framework for the interaction of the Federation Council with the constituent entities of the Russian Federation, there are many opportunities for their improvement. The following areas of priority legislative measures can be distinguished:
Harmonization of federal and regional legislation in the field of joint jurisdiction in order to reasonably take into account the interests of the constituent entities of the Russian Federation when adopting federal laws (the adoption of a special Federal
217 Bulakov O.N. Interaction of the Federation Council with state authorities of the constituent entities of the Russian Federation, international and public organizations // Legislation and Economics. M., 2004. No. 9. - S. 19-24. a law that defines the conditions and procedure for coordinating lawmaking on subjects of joint jurisdiction);
Improving the activities of the Federation Council in supporting the legislative initiative of the constituent entities of the Russian Federation (expanding mechanisms for influencing the consideration and adoption by the State Duma of draft legislative initiatives of the constituent entities, organizing their wide discussion; the provision by the apparatus of the Federation Council of services such as preliminary legal and methodological examination of legislative initiatives of the constituent entities of the Russian Federation). It would be expedient to create a methodological department for work with the regions under the Legal Department of the Federation Council, which would be entrusted with the functions of monitoring legislative and law enforcement practice in the constituent entities of the Russian Federation, systematization and examination of regional legislation in terms of the formation of a single legal space in the Russian Federation, accounting and preliminary examination of legislative initiatives of the constituent entities of the Russian Federation.
Development of the legal and institutional framework for the organization and activities of coordinating bodies, formed with the simultaneous participation of representatives of the Federation Council and constituent entities of the Russian Federation and involved in the discussion of both legislative policy in general and specific laws and bills. In this direction, the activities of the Council of Legislators, whose potential can hardly be overestimated, need to be improved. Regular meetings of the heads of the chambers of the Federal Assembly and the heads of legislative (representative) bodies of the constituent entities of the Russian Federation on issues of current legislation would be useful as intermediate forms of cooperation in order to increase the authority of this body.
Development of new forms of interaction between the Federation Council and state authorities of the constituent entities of the Russian Federation.
Based on the foregoing, it can be seen that the role of the Council
The federation has not yet been fully realized in the conditions of modern federalism, given the huge potential that the upper house has. It should be assumed that all the conclusions and proposals that are formulated in this work could be reflected in the near future in legislative and law enforcement practice, which, in turn, would serve as an impetus for the development of all Russian federalism.
List of references for dissertation research PhD in Law Vekshin, Anatoly Andreevich, 2009
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The Federation Council is the upper house of the Federal Assembly (Russian Parliament), which, according to the Russian Constitution, includes 2 representatives from each subject of the Russian Federation - one from the representative and executive bodies of state power.
According to Article 102 of the Constitution of the Russian Federation, the jurisdiction of the Federation Council includes
· Approval of changes in borders between subjects of the Russian Federation;
· approval of the decree of the President of the Russian Federation on the introduction of martial law;
· approval of the decree of the President of the Russian Federation on the introduction of a state of emergency;
appointment of elections of the President of the Russian Federation;
· removal of the President of the Russian Federation from office by way of impeachment after the appropriate accusation is made by the State Duma (a two-thirds majority of the chamber is required to make a decision);
· appointment of judges of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation (appointments are made on the proposal of the President of the Russian Federation);
Appointment to and dismissal of the Prosecutor General of the Russian Federation (also carried out on the proposal of the President);
· Appointment and dismissal of the Deputy Chairman of the Accounts Chamber and half of its auditors.
On issues referred to the jurisdiction of the Constitution of the Russian Federation, the Federation Council adopts resolutions that are adopted by a majority vote of the total number of members of the Federation Council, unless a different decision-making procedure is provided for by the Constitution of the Russian Federation.
In the field of lawmaking, the Federation Council plays a subordinate role in relation to the State Duma. Any laws are first submitted to the State Duma, and only after approval by the lower house are submitted to the Federation Council for consideration.
Both the entire Federation Council as a whole and ᴇᴦο individual members have the right to initiate legislation, however, laws on amendments to the constitution can be introduced either by the Federation Council as a collegial body, or by a group of at least one-fifth of the constitutional composition of the chamber.
When considering laws adopted by the State Duma, the Federation Council does not have the right to make amendments, but can either approve or reject the law as a whole. A federal law is considered approved by the Federation Council if more than half of the total number of members of this chamber voted for it, or if it was not considered by the Federation Council within fourteen days. If a federal law is rejected by the Federation Council, the chambers may create a conciliation commission to overcome the disagreements that have arisen, after which the federal law is subject to re-consideration by the State Duma. If the State Duma does not agree with the decision of the Federation Council, a federal law is considered adopted if at least two-thirds of the total number of deputies of the State Duma voted for it during the second voting. For the adoption of federal constitutional laws, the approval of three-quarters of the votes of the Federation Council is necessary; in the event that the Federation Council rejects a draft federal constitutional law, the veto must not be overcome by the State Duma.
Constitutional and legal status of the Federation Council of the Russian Federation (concept, formation, powers). - concept and types. Classification and features of the category "Constitutional and legal status of the Federation Council of the Russian Federation (concept, formation, powers)." 2015, 2017-2018.
FEDERAL AGENCY OF MARINE AND RIVER TRANSPORT
FEDERAL STATE EDUCATIONAL INSTITUTION
MARITIME STATE UNIVERSITY
named after Admiral G.I. Nevelskoy
Department of Documentation
ESSAY
Federation Council of the Russian Federation: status, formation and organizational structure, work procedure
Completed: 2nd year student
Accepted by: Ph.D., professor
Vladivostok
Introduction………………………………………………………………………………...3
1. Status of the Federation Council and its members...…………………………………4
2. Formation and organizational structure…………………………………...5
3. Procedure for the work of the Federation Council…………………………………………………..9
Conclusion……………………………………………………………………………… 11
List of used literature and sources………………………………...12
INTRODUCTION
Legislative power is the right and opportunity to issue generally binding normative acts of state significance that are of the most general nature, that is, to establish rules that determine the foundations of socially significant behavior and activities of individuals and legal entities, citizens, officials, bodies and institutions of the state, public associations. Legislative power is seen as an expression of the will of the entire people (although in reality this is not always the case), their interests, and people's sovereignty.
Legislative power is exercised, first of all, by the national representative body, which has the generalized name "parliament".
In the Russian Federation, after the adoption of the Constitution of 1993, the Federal Assembly as the parliament of the republic, consisting of the Federation Council and the State Duma, replaced the "two-stage" mechanism of the highest bodies of state power of the Russian Federation, which included the Congress of People's Deputies and the Supreme Council formed by it. Advice.
The Federation Council of the Russian Federation, often referred to as the upper house, consists of members representing all subjects of the Russian Federation. The Federation Council is called upon to express the interests of localities, regional opinions and aspirations. At the same time, the Council of the Federation is a state body of the entire Federation. Its decisions and other expressions of will are addressed not to one or another subject of the Russian Federation, but to the state as a whole, i.e. throughout Russia.
1. Status of the Federation Council and its members
In accordance with the regulations, the Federation Council of the Federal Assembly of the Russian Federation is the "upper" chamber of the Federal Assembly - the Parliament of the Russian Federation - the representative and legislative body of the Russian Federation.
The Federation Council exercises state power in the Russian Federation within the limits established by the Constitution of the Russian Federation.
The Federation Council is subject to the right of legislative initiative.
The Federation Council independently resolves issues that fall under its jurisdiction by the Constitution of the Russian Federation, federal constitutional laws and federal laws, including issues of strengthening federalism, state security and personnel policy.
The Federation Council operates on a permanent basis.
The status of a member of the Federation Council is determined by the Constitution of the Russian Federation, according to which members of the Federation Council have immunity during the entire term of their powers. They may not be detained, arrested, searched, except in cases of detention on the spot, and also subjected to personal searches, except when it is provided for by federal law to ensure the safety of other people.
In addition, the status of a member of the Federation Council is regulated by the Federal Law “On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation” with subsequent amendments.
2. Formation and organizational construction
The Federation Council, in accordance with Part 2 of Article 95 of the Constitution of the Russian Federation, includes two representatives from each subject of the Russian Federation: one from the representative and executive bodies of state power.
The procedure for the formation of the Federation Council until August 8, 2000 was determined by the Federal Law of December 5, 1995 No. 192-FZ "" (Collected Legislation of the Russian Federation, 1995, No. 50, Art. 4869): the chamber consisted of 178 representatives of the constituent entities of the Russian Federation - heads of legislative (representative) and heads of executive bodies of state power (by position). All members of the Federation Council combined the performance of duties in the chamber of the federal parliament with duties in the corresponding subject of the Russian Federation.
On August 8, 2000, the new Federal Law of August 5, 2000 No. 113-FZ "" (Collected Legislation of the Russian Federation, 2000, No. 32, Art. 3336) came into force. Now the chamber consists of representatives elected by the legislative (representative) bodies of state power of the subjects of the Russian Federation, or appointed by the highest officials of the subjects of the Russian Federation (heads of the highest executive bodies of state power of the subjects of the Russian Federation). The term of office of such representatives is determined by the term of office of the bodies that elected or appointed them, however, the powers of representatives may be prematurely terminated by the body that elected (appointed) him/her in the same manner in which a member of the Federation Council was elected (appointed). A citizen of the Russian Federation at least 30 years of age who, in accordance with the Constitution of the Russian Federation, has the right to elect and be elected to bodies of state power, may be elected (appointed) as a member of the Federation Council.
Candidates for the election of a representative in the Federation Council from the legislative (representative) body of state power of a constituent entity of the Russian Federation are submitted for consideration by this body by its chairman, and in a bicameral legislative (representative) body - alternately by the chairmen of the chambers. At the same time, a group of deputies numbering at least one third of the total number of deputies may propose alternative candidates. The decision to elect a representative from a legislative (representative) body is taken by secret ballot and formalized by a resolution of the said body, and a bicameral legislative (representative) body - by a joint resolution of both chambers.
The decision of the highest official of the subject of the Russian Federation (the head of the highest executive body of state power of the subject of the Russian Federation) on the appointment of a representative in the Federation Council from the executive body of state power of the subject of the Russian Federation is formalized by a decree (decree) of the highest official of the subject of the Russian Federation ( head of the highest executive body of state power of the constituent entity of the Russian Federation). The decree (decree) is sent within three days to the legislative (representative) body of state power of the constituent entity of the Russian Federation and enters into force if, at a regular or extraordinary meeting of the legislative (representative) body, two-thirds of the total number of its deputies do not vote against the appointment. -tion of this representative.
The election (appointment) of all members of the Federation Council in accordance with the new Federal Law was basically completed no later than January 1, 2002. At the same time, newly elected (appointed) representatives work in the chamber only on a permanent basis.
The Federation Council elects from among its members the Chairman of the Federation Council, his first deputy and deputies who lead the meetings and manage the internal routine of the chamber. In addition, Chairman of the Federation Council E. S. Stroev, who terminated his powers, was elected Honorary Chairman of the Federation Council (this title is for life). E. S. Stroev, as well as the Chairman of the Federation Council of the first convocation V. F. Shumeiko, were given special places in the meeting room of the Federation Council and working rooms in the building of the chamber, they were issued special certificates and badges, they were endowed with the right of an advisory vote and some other rights.
The Federation Council forms committees, permanent and temporary commissions from among the members of the chamber. The Federation Council has the right to create, abolish and reorganize any committees and commissions.
Committees and standing commissions of the Federation Council are permanent bodies of the chamber. All members of the Federation Council, with the exception of the Chairman of the Federation Council, his first deputy and deputies, are members of committees. A member of the Federation Council may be a member of only one committee of the chamber, while the committee must include at least 7 members of the Federation Council. The composition of the committee, commission is approved by the chamber. The following committees and standing commissions have been formed and operate in the Federation Council:
· Federation Council Committee on Constitutional Legislation;
· Federation Council Committee on Legal and Judicial Issues;
· Federation Council Committee on Federation Affairs and Regional Policy;
· Federation Council Committee on Local Self-Government;
· Federation Council Committee on Defense and Security;
· Committee of the Federation Council on the budget;
· Federation Council Committee on Financial Markets and Money Circulation;
· Commission of the Federation Council for interaction with the Accounts Chamber of the Russian Federation;
· Federation Council Committee on International Affairs;
· Committee of the Federation Council for the Commonwealth of Independent States;
· Commission of the Federation Council on the Rules and Organization of Parliamentary Activities;
· Commission of the Federation Council on the methodology for exercising the constitutional powers of the Federation Council;
· Federation Council Committee on Social Policy;
· Federation Council Committee on Youth Affairs and Sports;
· Federation Council Committee on Economic Policy, Entrepreneurship and Property;
· Federation Council Committee on Industrial Policy;
· Commission of the Federation Council on natural monopolies;
· Federation Council Committee on Natural Resources and Environmental Protection;
· Federation Council Committee on Agrarian and Food Policy;
· Federation Council Committee for the Affairs of the North and Indigenous Peoples;
· Commission of the Federation Council on Information Policy;
· Commission of the Federation Council for monitoring the activities of the Federation Council.
Committees and standing commissions of the Federation Council have equal rights and bear equal responsibilities for the implementation of the constitutional powers of the chamber: they prepare opinions on federal laws adopted by the State Duma and submitted for consideration by the Federation Council, as well as on federal constitutional laws; develop and preliminary consider bills and drafts of other normative legal acts, organize parliamentary hearings, etc.
The activities of temporary commissions are limited to a certain period or specific tasks.
3. Procedure for the work of the Federation Council
The Federation Council is a permanent body. Its meetings are held as needed, but at least twice a month. Meetings of the Federation Council are the main form of work of the Chamber. They are held separately from the meetings of the State Duma, with the exception of hearing messages from the President of the Russian Federation or the Constitutional Court of the Russian Federation, speeches by heads of foreign states.
Meetings of the Federation Council are held in the city of Moscow, from January 25 to July 15 and from September 16 to December 31, and are open. By decision of the Federation Council, the venue of the meetings may be changed, and a closed session may also be held.
The powers of the Federation Council are determined by the Constitution of the Russian Federation. The main function of the chamber is the exercise of legislative powers. The procedure for consideration by the Federation Council of federal constitutional laws and federal laws approved or adopted by the State Duma, respectively, is determined by the Constitution of the Russian Federation and the Regulations of the Federation Council.
Federal laws adopted by the State Duma on the following issues are subject to mandatory consideration in the Federation Council: the federal budget; federal taxes and fees; financial, currency, credit, customs regulation, 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.
A federal law is considered approved by the Federation Council if more than half of the total number of members of the chamber voted for it, and a federal constitutional law is considered adopted if it is approved by a majority of at least three-quarters of the votes. In addition, a federal law that is not subject to mandatory consideration is considered approved if it has not been considered by the Federation Council within fourteen days. If a federal law is rejected by the Federation Council, the chambers may create a conciliation commission to overcome the disagreements that have arisen, after which the federal law is subject to joint consideration by the State Duma and the Federation Council.
The jurisdiction of the Federation Council, in addition, includes:
Approval of changes in the borders between the constituent entities of the Russian Federation;
Approval of the decree of the President of the Russian Federation on the introduction of a state of war or a state of emergency;
Resolving the issue of the possibility of using the Armed Forces of the Russian Federation outside the territory of the Russian Federation;
Appointment of elections of the President of the Russian Federation;
Removal of the President of the Russian Federation from office;
Appointment to the position of judges of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation;
Appointment and dismissal of the Prosecutor General of the Russian Federation;
Appointment and dismissal of the Deputy Chairman of the Accounts Chamber and half of its auditors.
A number of federal laws entrust the Federation Council with other powers not provided for in the Constitution of the Russian Federation.
The Federation Council, like every member of the Federation Council, has the right to initiate legislation.
On matters within the jurisdiction of the Federation Council, the chamber, by a majority vote of the total number of members of the Federation Council, unless otherwise provided by the Constitution of the Russian Federation, adopts resolutions.
The Federation Council adopts, which defines in detail the bodies and procedure for the work of the Federation Council, the chamber's participation in legislative activities, and the procedure for considering issues within the jurisdiction of the Federation Council.
CONCLUSION
The organization of legislative work in the Federation Council is carried out in two main areas:
· The Federation Council, together with the State Duma, participates in the development of draft laws, the consideration of laws and the adoption of decisions on them;
· in order to exercise the right of legislative initiative, the Federation Council independently develops draft federal laws and federal constitutional laws.
But, according to the Chairman of the Federation Council S.M. Mironov, the main goal of the Federation Council is to strengthen the "federal model of the state-legal self-organization of Russia, the unity of its political, socio-economic and cultural space."
List of used literature and sources
1. The Constitution of the Russian Federation. M., "Legal Literature", 1993.
2. Federal Law of August 5, 2000 No. 113-FZ "On the procedure for the formation of the Federation Council of the Federal Assembly of the Russian Federation" / / Assembly of the Legislation of the Russian Federation, 2000, No. 3336
3. State law of the Russian Federation./ Ed. Kutafina O.E. M.: - 1996
480 rub. | 150 UAH | $7.5 ", MOUSEOFF, FGCOLOR, "#FFFFCC",BGCOLOR, "#393939");" onMouseOut="return nd();"> Thesis - 480 rubles, shipping 10 minutes 24 hours a day, seven days a week and holidays
Smolenskaya Alexandra Anatolyevna. The constitutional and legal status of a member of the Federation Council of the Federal Assembly of the Russian Federation: dissertation ... candidate of legal sciences: 12.00.02 / Smolenskaya Alexandra Anatolyevna; [Place of defense: Moskovsky State University them. M.V. Lomonosov].- Moscow, 2014.- 224 p.
Introduction
Chapter 1. Fundamentals of the constitutional and legal status of a member of the Federation Council 16
1. Federation Council - chamber of the Parliament of the Russian Federation 16
2. The concept, elements and evolution of the legal status of a member of the Federation Council 58
3. The main models of the status of members of the upper houses of parliaments in foreign countries 84
Chapter 2 Forms of activity of a member of the Federation Council 111
1. Participation of a member of the Federation Council in the activities of Chamber 111
2. Work of a member of the Federation Council in a constituent entity of the Russian Federation 152
Chapter 3 Guarantees of activity and responsibility of a member of the Federation Council 165
1. Basic guarantees of the activity of a member of the Federation Council: concept and classification 165
2. Constitutional and legal responsibility of a member of the Federation Council 185
Conclusion 193
Bibliography
Introduction to work
The relevance of research. The relevance of this dissertation research is due to the special constitutional position and high mission of the Federation Council in modern Russia. According to Articles 94 and 95 of the Constitution of the Russian Federation, the Federal Assembly is the representative and legislative body of the Russian Federation, consisting of two chambers - the Federation Council and the State Duma. Such a structure is predetermined by the federal state structure, when one of the chambers is the chamber of national representation, and the representation of the subjects of the Federation is realized in the other chamber. At the same time, the role of the chamber of the Federal Assembly, which expresses the interests of the constituent entities of the Russian Federation in their combination with the interests of the whole state, belongs to the Federation Council.
Given the specifics of the federal structure of the state, it is difficult to deny that the adoption of the most important decisions on the scale of the state should be implemented taking into account the opinions of its subjects. In this regard, from 1993 to the present, a special procedure for the formation of the Federation Council of the Federal Assembly of the Russian Federation has been legislatively changed, which is a representative body of power in the truest sense of the word, since it is formed by including representatives from each of the constituent entities of the Russian Federation. Accordingly, changes are being made to the constitutional and legal status of members of the Federation Council.
In this regard, the legal position of the Constitutional Court of the Russian Federation is important, according to which “the federal structure of the Russian Federation determines the bicameral structure of the Federal Assembly and the significant independence of the Federation Council and the State Duma in relation to each other. In their organization and activities, they are called upon to reflect different aspects of popular representation in the Russian Federation.
Direct representation of the population and representation of the constituent entities of the Russian Federation.
The procedure for the formation of the Federation Council and the composition of its members are, first of all, one of the characteristics and a necessary element of the legal status of the Federation Council. Analysis of the procedure for the formation of a state body is an important component of the characteristics of its legal status. The answer to the question of who establishes, forms, forms the personal composition of the state body, helps to identify its legal status.
The Federation Council has a dual nature: it is the body through which the constituent entities of the Russian Federation take part in the affairs of the Federation; it is a part, an intrastructural subdivision of the all-Russian parliament, which performs the functions established by the Constitution.
From the very beginning of its creation to the present, the Federation Council has been in the process of reform. Undoubtedly, the constitutional foundations of the chamber have been laid, but at the present stage, the problem of increasing the efficiency of exercising state powers is acute.
Efficiency largely depends on how the chamber is formed, what method is chosen for this, how it is enshrined in law, to what extent it corresponds to the objective circumstances of the socio-political and national state development Federation, the needs of society and the idea of democratic participation of citizens in government.
According to a number of scientists, the procedure for the formation of the Federation Council and the legal status of its members are very important not only in themselves, but also in the following aspects: the connection between the formation procedure and the representative nature of the parliament, with the formation of parliament, with the principle of separation of powers, with the issue of independence a member of the Federation Council, with the problem of a free or imperative mandate of a member of the Council
1 Resolution of the Constitutional Court of the Russian Federation of April 12, 1995 No. 2-P “On the case of 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 // SZ RF. 1995. No. 16. Art. 1451.
Federations; with the mutual influence of the procedure for the formation and mode of activity of the chamber.
The periodic change in the procedure for the formation of the Federation Council indicates the search for its most optimal and effective model, and the ongoing discussions on this issue, both in the political and legal aspects, indicate its relevance and incompleteness.
Therefore, both from a theoretical and practical point of view, there is a need (and a need) to explore, define and summarize the general theoretical positions related to the formation of the upper houses of the world's parliaments, to reveal the content of the process of their formation and highlight the features of various models, to consider the formation, development and modern legislative consolidation of the procedure for the formation of the Federation Council, the dynamics of changes in the legal status of a member of the chamber.
The experience gained by using various methods of forming the Federation Council requires close and detailed scientific study. The practical situation and existing approaches need to be generalized and evaluated, which may result in conclusions and proposals for improving the formation procedure, which will help to find the most optimal and effective variant of the procedure for forming the upper chamber of the Russian Parliament.
Taken together, these factors indicate the relevance of the topic under study and the need for scientific understanding of the relevant issues.
The degree of scientific development of the topic. The problem of the parliament, the methods of its formation, the legal status of a member of the Federation Council, the forms of its activity are constantly drawn to the attention of academic constitutionalists.
Among the specialists who consider various aspects of the problems of the Federation Council in their works, it should be noted such authors as R.G. Abdulatipov, S.A. Avakyan, K.V. Aranovsky, M.V. Baglai, A.A. Bezuglov, V.D. Gorobets, I.V. Grankin, A. Demishel, E.E. Zaslavsky, Yu.K. Krasnov, E.I.
Kozlova, O.E. Kutafin, L. Locke, N.A. Mikhaleva, B.A. Strashun, V.V. Lazarev, V.O. Luchin, V.E. Chirkin, N.I. Shaklein and others.
Some works laid the theoretical foundations for a modern understanding of the nature and specifics of the parliament, its place and role in the system of public authorities. Others develop the problem in connection with the deep political and socio-economic transformations in
Russia. Interest in it not only does not decrease, but continuously increases, as evidenced by scientific work recent years.
So, for example, V.E. Chirkin in the work "The Upper House of the Modern Parliament: Comparative Legal Research" (M., 2009) in detail
2 Bezrukov A.V. Legislative power: theory and practice of implementation. Siberian Law Institute of the Ministry of Internal Affairs of Russia, Krasnoyarsk, 2010; Varlen M.V. Deputy mandate: constitutional and legal elements and implementation mechanism // Modern Russian constitutionalism: problems of theory and practice. Proceedings of the Department of Constitutional and Municipal Law of Russia, dedicated to the 15th anniversary of the Constitution of the Russian Federation / Ed. ed. S.V. Narutto, E.S. Shugrin. M., 2008; Vaskova L.G. Constitutional and legal regulation of the mandate of a deputy of the modern parliament: Abstract of the thesis. dis. ... cand. legal Sciences. Tyumen, 2007; Vekshin A.A. The constitutional and legal status of the Federation Council of the Federal Assembly of the Russian Federation in the context of the development of federal relations: Abstract of the thesis. dis. ... cand. legal Sciences. M., 2009; Glukhareva A.K. Constitutional foundations of popular representation in the Russian Federation: Abstract of the thesis. dis. ... cand. legal Sciences. M., 2008; Grankin I.V. Problems of improving the constitutional and legal regulation of the activities of legislative bodies in the Russian Federation: Abstract of the thesis. dis. ... doc. legal Sciences. M., 2007; Doronina O.M. Deputy immunity: a means or condition for the existence of parliamentarism // Law and Politics .. 2008. No. 3; Dudko I.A., Khapsirokova E.A. Constitutional and legal status of the Federal Assembly of the Russian Federation. Stavropol: "YURKIT", 2009; Erygina V.I. Study of the essence and signs of parliamentarism in domestic legal science // State power and local self-government. 2010. No. 3; Kazakova A.A. Federation Council of the Russian Federation: constitutional and legal foundations for the formation and activities: Abstract of the thesis. dis. ... cand. legal Sciences. M., 2009; Kivle G.A., Somov M.D. Parler - the word of the masses: empirical justification, political legalization // Constitutional and municipal law. 2010. No. 11; Lukyanov A.I. Parliamentarism in Russia (Issues of History, Theory and Practice). Lecture course. M.: NORMA, INFRA-M, 2010; Melnikov V.I. On the issue of contradictions in the procedure for the formation of the Federation Council of the Federal Assembly of the Russian Federation // Representative power - XXI century. 2010. No. 5-6; Murychev K.V. The system of representative authorities in the Russian Federation: Abstract of the thesis. dis. ... cand. legal Sciences. M., 2009; Nyrkova T.Yu., Petrova N.A. On the issue of changing the procedure for the formation of the Federation Council // Constitutional and municipal law. 2009. No. 9; Paronyan K.M. Political and legal transformation of the institution of popular representation in the system of Russian public authorities: Abstract of the thesis. dis. ... cand. legal Sciences. Rostov-on-Don, 2008; Usanova V.E. Parliamentarism in Russia: constitutional and legal foundations of formation and activity: Abstract of the thesis. dis. ... cand. legal Sciences. M., 2007; Chirkin V.E. The Upper House of the Modern Parliament: A Comparative Legal Study. M.: Norma, 2009; Shaklein N.I. The constitutional and legal status of the federal and regional parliaments of the Russian Federation and the problems of its improvement: a comparative legal study: Abstract of the thesis. dis. ... doc. legal Sciences. M., 2011; Yakushev A.N. The Crisis of the Legitimacy of the Legislative Power of Russia // National Interests. 2010. No. 3 (68); National representation in the modern world: materials of the round table (February 3, 2012) / ed. B.A. Strashun and A.Sh. Budagova. M.: Publishing Center of Moscow State Law Academy named after O.E. Kutafina, 2013.
considers the methods of organization and activities of the upper chambers of parliaments, the powers of their members.
In the monographs of L.A. Nudnenko "Constitutional and legal status of a deputy of the legislative body of state power in the Russian Federation" (St. Petersburg, 2004); N.I. Shaklein "The constitutional and legal status of the federal and regional parliaments of the Russian Federation and the problems of its improvement: a comparative legal study" (M., 2011), special attention is paid to the nature of the mandate and status of members of parliament.
Noting the contribution of scientists to the development of the problem of the formation and functioning of the parliament, however, we have to admit that it remains insufficiently studied. This is primarily due to the fact that scientists often cannot keep up with the dynamics of changes in legislation on the procedure for forming the Federation Council and the status of members of the Federation Council, since this legislation is developing very intensively.
This causes the dissertation to turn to the issue of both the status of the Federation Council in general, the procedure for forming the chamber, and the legal status of a member of the Federation Council in general and in comparison with the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation, members of the upper chambers of a number of foreign parliaments.
Due to the specifics of the topic of the dissertation, the main attention is paid to modern domestic and foreign studies that relate to the whole range of issues related to representative and legislative state power, models of its formation and functioning.
The purpose of this dissertation research is to conduct a comprehensive study of the procedure for the formation and functioning of the Federation Council, all aspects and features of the constitutional and legal status of a member of the chamber, based on an analysis of constitutional norms, provisions of the legislation of the Russian Federation, the law enforcement practice of the Constitutional Court of Russia, as well as domestic and foreign scientific literature, as well as to develop practical recommendations for its improvement.
Based on the goal, main tasks dissertations are:
determination of the factors causing the need to form the upper house of parliament, and on the basis of the science of constitutional law and world practice to analyze its legal nature;
study of the concept, content and evolution of the legal status of the Federation Council and its members as a unity of national and regional interests;
disclosure and analysis of the forms of activity of a member of the Federation Council in the course of the activity of the chamber itself and in the subject of the Russian Federation as a national parliamentarian and representative of the subject of the Russian Federation;
determining the content of the main guarantees for the activities of a member of the Federation Council and their classification;
Identification of the essence, content and features of the constitutional
legal liability of members of the Federation Council;
Rationale for the need to improve the formation process
Federation Council and the constitutional and legal status of its members in order to
improving the efficiency of functional parliamentary activities.
The object of the dissertation research are social relations that develop in the process of forming the composition of the Federation Council, establishing the constitutional and legal status of its members.
Subject of research are constitutional and legal norms that establish the legal status of members of the Federation Council, the procedure and procedures for the formation of its composition, the practice of their implementation, as well as the concepts that have developed in the science of constitutional law and the existing theoretical approaches related to the problems of forming the upper house of the Russian parliament and establishing constitutional and legal position of its members.
empirical base dissertation research are the Constitution of the Russian Federation, federal legislation, resolutions and rulings of the Constitutional Court of the Russian Federation, acts of the Federal Assembly of the Russian Federation, the federal Government, decrees and orders of the President of Russia, normative acts of the constituent entities of the Russian Federation, foreign sources of law.
The conclusions and suggestions contained in the dissertation are based on the use of general scientific research methods in combination with private scientific methods. The study is based on the dialectical method, which allows us to consider legal phenomena in dynamics, to identify cause-and-effect relationships, which is necessary condition efficiency studies. In addition, analysis, synthesis, analogy and classification were widely used in the work. Legal research was also carried out using special legal methods: legal modeling, regulatory analysis, various methods of interpreting legal norms.
Scientific novelty of the dissertation research is that this work is a special comprehensive study that examines the evolution of the constitutional and legal status of a member of the Federation Council and the procedure for the formation of the Federation Council of the Federal Assembly of Russia based on an analysis and assessment of both the evolution of this process and modern Russian legislation, in particular taking into account its renewal in 2012-2014.
The following main provisions are put forward for defense: 1. The necessity of stabilizing the process of improving the procedure for the formation of the Federation Council and the constitutional and legal status of its members in order to increase the efficiency of functional parliamentary activity is substantiated.
In order to end numerous disputes about the constitutionality of one or another model of organization of the Federation Council, it is necessary to amend Part 2 of Article 95 of the Constitution of Russia and remove the provision that
The Federation Council of the Federal Assembly of the Russian Federation must include one representative each from the representative and executive bodies of state power of the constituent entities of the Federation.
The issue of forming the composition of the Federation Council should be attributed to the subject of legal regulation of a separate federal constitutional law, respectively, setting out Part 2 of Article 95 of the Constitution of the Russian Federation as follows: “The procedure for forming the Federation Council is established by federal constitutional law.” It is the law, as a more flexible form of legal act, that would establish the most effective model chambers, depending on certain socio-political conditions and a possible change in the model of the federal structure, ultimately contributing to the strengthening of national principles in the organization of this chamber of the parliament of the Russian Federation.
2.
The mandate of a member of the Federation Council covers his rights, duties and
responsibility due to the constitutional and legal status of a member
the upper house of the Russian parliament and the nature of the relationship of this
parliamentarian with the body of state power that elected (appointed) him
subject of the Russian Federation.
An analysis of the rights, obligations and responsibilities of a member of the Federation Council allows us to conclude that he has a semi-free mandate: on the one hand, while representing the interests of a constituent entity of the Russian Federation as a whole, a member of the Federation Council is not bound by the orders of the body of state power of the constituent entity of the Russian Federation that delegated him to the chamber; on the other hand, the position of a person elected or appointed by this body of a constituent entity of the Russian Federation makes a member of the Federation Council really dependent on the body of a constituent entity of the Russian Federation, which, as the practice of individual constituent entities of the Russian Federation shows, in case of dissatisfaction with the activities of a member of the chamber, seeks ways to early terminate his powers in the Federation Council .
3.
Based on the analysis of Russian and foreign parliamentary experience
concluded that there is a need for fundamental changes in the
formation of the Federation Council.
Members of the Federation Council must be elected by the population of the subject under the majority system of an absolute majority, alternatively, on the basis of universal equal direct suffrage by secret ballot. Candidates for election to this position from the legislative (representative) body of the subject of the Russian Federation can be nominated by both individual deputies and a group of deputies numbering at least 1/3 of the total number of deputies of the legislative (representative) body of the subject, as well as a group of voters of the subject of the Russian Federation .
It seems expedient to introduce a rule providing for the election of the head of a constituent entity of the Russian Federation simultaneously with the election of a representative from the executive branch to the Federation Council. It is proposed that candidates for election to the specified position in the Federation Council could be nominated both by candidates for the position of head of the executive power of a constituent entity of the Russian Federation, and a certain number of voters of a constituent entity of the Russian Federation by collecting signatures.
In each case, it should be provided that the number of candidates for the relevant post should be at least two - by analogy with the election of deputies of the State Duma in territorial constituencies in accordance with the Federal Law on Elections of Deputies of the State Duma of 2014.
4. It seems appropriate, in order to optimize the interaction of the chambers of the Federal Assembly in the legislative process, following the example of European democratic states, to create a permanent conciliation commission of the chambers. The effectiveness of the activities of such a commission is confirmed by the actual practice of a number of countries. On the part of the Federation Council, it would be necessary to transfer the existing Coordinating Meeting of the chamber to the status of a permanent part of the conciliation commission. The discussion of fundamental amendments to bills coming from the Federation Council before the second reading procedure in the State Duma could enhance the role of the Coordinating Meeting.
In addition, it is necessary to make appropriate changes in paragraphs. "b" paragraph 1 of Art. 109 of the Rules of the Federation Council in the part concerning the mandatory motivation in the explanatory note of the reasons for the deviations of the draft laws submitted for consideration.
5.
Enhancing the role of members of the Federation Council in deciding
legislative issues, no doubt, would contribute to their personal and
direct participation in voting.
At present, members of the Federation Council carry out their activities on a permanent basis, participation in voting is their direct responsibility. Therefore, the use of the provision on absentee voting, from our point of view, is inappropriate, since it can lead to the fact that the Federation Council will find itself in a situation where only a few members of the chamber will participate in real voting. Ultimately, this will significantly undermine the authority of the Federation Council and cause a negative attitude of the population towards it.
6.
In connection with the emergence of parliamentary inquiries, there has been a trend towards
reducing the importance and effectiveness of requests from members of the Federation Council.
Often the answers to them are delayed or are of a formal nature, are
actual resignation.
We believe that in order to increase the effectiveness of such requests, especially to federal government structures, a rule should be introduced requiring the announcement of the answer to the request at a meeting of the relevant committee. This will also increase the responsibility of a member of the Federation Council, since in this case it will be more difficult to hide the interest he lobbies in a particular case.
7.
When regulating the issues of immunity of a member of the Federation Council
it must be taken into account that in the conditions of an unstable legal order, speech
can only talk about such measures of responsibility, which, firstly,
comply with constitutional requirements (Article 98 of the Constitution of the Russian Federation),
secondly, they are aimed at blocking the activities of a member of the Council
Federation, contrary to the Constitution of the Russian Federation and a specific law, thirdly,
which would not interfere with the effective and efficient lawful activities of a member of the Federation Council.
At the legislative level, it should be clearly stated that when deciding on the involvement of a person as an accused, who by this time had already lost a special legal status, a special procedure for proceedings should not be applied. Thus, the immunity of members of the Federation Council should not be unlimited.
8. The lack of mechanisms to ensure communication between the members of the Federation Council and the population of the constituent entities of the Russian Federation leads to the absence of direct dependence of the members of the Federation Council on the voters and complete dependence on the leadership of the constituent entity of the Russian Federation. The mechanisms of communication with the population, taking into account the changed nature of the formation of the Federation Council, require deep and comprehensive study.
It is necessary to radically change the existing practice by introducing public reporting of members of the Federation Council to the population of a constituent entity of the Russian Federation - by publishing a report in the regional media, on the official websites of the legislative and executive authorities of the constituent entities of the Russian Federation, and also, in addition to this, speeches by a member of the Federation Council at fairly representative meetings of citizens at their place of work and residence. The electoral corps should also be given the right, by collecting a certain number of signatures, to initiate their recall from the chamber, while, of course, establishing an exhaustive list of grounds for recalling a member of the Federation Council.
The absence at the legislative level of clear, justified criteria for holding members of the Federation Council accountable makes it impossible to hold them accountable for improper performance of their powers.
We consider it necessary to establish at the federal legislative level such legal sanctions as, for example, censure (reprimand) (for systematic, without good reason, failure to fulfill the duties of a member of the Federation Council), recall (for gross violation of the legislation of the Russian
Federation and its subjects, actions discrediting the status of a parliamentarian), deducting amounts from the salary (for example, for absenteeism).
Thus, it is necessary to fix at the legislative level such a mechanism of regional representation in the Federation Council, which will allow, on the one hand, the state authorities of the constituent entities of the Russian Federation to influence decision-making at the federal level, and on the other hand, will provide the members of the Federation Council with the right to independently and responsibly Express ones opinion.
Theoretical significance of the work consists in expanding the scope of scientific knowledge in the constitutional law of Russia regarding the ways of developing domestic parliamentarism, the fate of its bicameral structure, organizing the work of the Federation Council, modernizing the procedure for forming the chamber and strengthening the legal framework for the status of a member of the Federation Council, the ties of national interests with regional interests in the activities of the chamber as a whole and each member of the Federation Council. The practical significance of the work due to the fact that the author's proposals can be used both in lawmaking and in the direct organization of the activities of the Federation Council, state authorities of the constituent entities of the Russian Federation, as well as each member of the upper house of the Russian parliament.
Approbation of the research results. The main results of the study and the developed practical recommendations were published in the author's scientific articles in leading peer-reviewed legal journals. The dissertation was discussed and approved at a meeting of the Department of Constitutional and Municipal Law of the Law Faculty of Moscow State University named after M.V. Lomonosov.
Thesis structure predetermined by the purpose and objectives of the study. The work consists of an introduction, three chapters, seven paragraphs, conclusion, bibliography.
The concept, elements and evolution of the legal status of a member of the Federation Council
“Legal status” refers to a legal position (a set of rights and obligations provided for by law)86. According to N.A. Bogdanova, constitutional and legal status appears in two forms of legal expression: normative and actual. The normative constitutional and legal status fixes the legal status of subjects (participants) of constitutional and legal relations at the appropriate level of legislation. The actual status is understood as the real position of the subject of constitutional and legal relations in connection with the application of the norms of constitutional law in specific socio-political conditions. ON THE. Bogdanova also developed the concept of doctrinal constitutional and legal status, which is defined as a theoretical construct that combines normative characteristics, theoretical ideas and real practice in the implementation of legal provisions87. In the science of constitutional law, there is no consensus on the issue of the structure of the constitutional and legal status of a state body and its members. An overview of different points of view on this issue is given in the article by N.A. Bogdanova "The category of status in constitutional law". Thus, supporters of a narrow approach (N.V. Vitruk) attribute only competence and powers to the structure of the status of a parliamentarian. Other scientists (Yu.A. Dmitriev88) invest in the content of the status of a state body and its members the functions and powers (rights and obligations). In their opinion, in a broad sense, the status of a parliamentarian should be understood as its actual position due to the socio-political essence of society, regulated by legal and other social norms and provided with appropriate guarantees.
In addition, there is an opinion that the constitutional and legal status of a Russian parliamentarian does not include in its structure such an element as guarantees for the activities of a member of the Russian parliament89. According to I.P. Okulich, the content of the legal status should also include such elements as the term of office, relations with voters, control functions in relation to the structures of executive power, deputy ethics90. In accordance with paragraph 1 of Art. 1 of Federal Law No. 3-FZ of May 8, 1999 “On the Status of a Member of the Federation Council and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation”91 a member of the Federation Council is a representative from a constituent entity of the Russian Federation authorized to exercise legislative and other powers provided for by the Constitution of the Russian Federation Federation and federal laws. The Constitution of Russia contains two names: “member of the Federation Council” and “deputy of the Federation Council” (clause 9 of section two “Final and transitional provisions”). It is assumed that the name "deputy" is associated with the method of electing the Federation Council of the first convocation on the basis of universal equal direct suffrage by secret ballot. The term "member of the Federation Council" to a greater extent refers to the procedure for the formation of the upper house in accordance with Part 2 of Art. 95 of the Constitution of Russia. The procedure for the formation of the Federation Council is mixed. It combines the use of two procedures - indirect elections for representatives from the legislature and appointment from the executive. In the first case, it determines the public procedure for the nomination of candidates and their election. In the second case, the legal decision-making mechanism is largely “terra incognita”92. The formation of the Federation Council can be based on two approaches: 1) by the legislative (representative) body of state power of the constituent entities of the Russian Federation; 2) directly by the population of the subjects of the Russian Federation. According to the first approach, only the legislative body of the Russian Federation should send its representative (representatives) to the Federation Council. Such a procedure does not contradict the representative nature of the parliament and will ensure better communication between the legislators of the Russian Federation and its constituent entities93. According to the second approach, elections to the Federation Council are held on the territory of each of the constituent entities of the Russian Federation either on a parity basis, when an equal number of members of the Federation Council is elected from each constituent entity of the Russian Federation (as, for example, in the United States, Switzerland, Brazil), or on a proportional basis - the number elected parliamentarians in proportion to the population of the subject of the Federation (Austria, India).
Since the beginning of the 90s, the legal status of a member of the Federation Council has been constantly evolving, developing along with the development of the Russian state. According to Federal Law No. 229-FZ of 03.12.2012 “On the procedure for forming the Federation Council of the Federal Assembly of the Russian Federation”, which establishes the current procedure for the formation of the upper house, the powers of a member of the Federation Council begin from the day the decision of the relevant state authority of the constituent entity of the Russian Federation enters into force on vesting him with the powers of a member of the Federation Council. A member of the Federation Council, within three days from the day the decision on conferring the powers of a member of the Federation Council on him comes into force, shall send to the Federation Council and the state authority of the constituent entity of the Russian Federation that adopted the said decision copies of the application for release from duties incompatible with the status of a member of the Federation Council. The powers of a member of the Federation Council shall be terminated from the date of entry into force of the decision of the relevant state authority of the constituent entity of the Russian Federation on the empowerment of a new member of the Federation Council - a representative from the same state authority of the constituent entity of the Russian Federation in the manner established by the Law of December 03, 2012.
Analyzing the procedure for the formation of the Federation Council of the Russian Federation, we believe that the most complete guarantee of ensuring the optimal combination of stability and independence in the activities of the Federation Council, with an adequate expression of the interests of the constituent entities of the Russian Federation, can only be achieved with popular participation in the formation of the upper house of the Russian parliament of voters in the constituent entities of the Russian Federation on the basis of universal equal direct suffrage by secret ballot. E. B. Mizulina names two criteria for evaluating the effectiveness of a member of the Federation Council. The first is professionalism, a constant basis of activity. According to the Constitution, the Upper Chamber is a permanent body, so the ability to engage in legislative powers, to represent your region at the level of exercising legislative powers and other powers vested in the Federation Council under the Constitution, is the most important thing; from everything else, a member of the Federation Council must be exempted. It is very important to be able to deal with and focus specifically on the implementation of the constitutional powers of the Federation Council, since other authorities are not endowed with the powers that the Federation Council is vested with. And the second very important criterion for evaluation is the independence, independence of a member of the Federation Council from the executive branch, from other authorities that in one way or another can influence a member of the Federation Council94.
The value of elections lies in the fact that they make it possible to satisfactorily legitimize political, administrative, and public power in general, because elective power, as a rule, is axiomatically recognized as legitimate95. In addition, “with the introduction of elections of parliamentarians by the population of the constituent entities of the Russian Federation, the role of the Federation Council will be brighter”96. In the pre-election article "Democracy and the Quality of the State" President of the Russian Federation V.V. Putin noted that a mechanism is needed for the people to nominate responsible people, professionals, who think in terms of national and state development, and who are able to achieve results, to power at all levels97. During the entire period of its existence, many elective options for the formation of the upper chamber were formulated, but a very small part of these proposals became bills and was submitted to the State Duma for consideration.
The main models of the status of members of the upper houses of parliaments in foreign countries
On the example of models of the statuses of members of the upper chambers of parliaments of foreign countries, one can see which models meet the tasks of parliaments in general and contribute to effective work the parliamentarian himself in particular, and which ones, on the contrary, have a negative impact on their activities. The analysis of the status of foreign parliamentarians in general, including members of the upper chambers, receives some attention in the Russian constitutional and legal literature128. In our work, we would like to draw attention to those aspects of the procedure for the formation of the upper chambers and the status of members of these chambers that could be taken into account when improving the constitutional and legal foundations for organizing the Federation Council. Foreign countries have different legal, political systems and constitutional history, different levels of economic and social development However, today the parliaments of all federal states have a bicameral structure. Thus, the American model, implemented within the framework of the presidential republic, is based on the principle of separation of powers, in which the formation, organization and procedure for the activities of members of the upper houses of parliaments are elements of a system of checks and balances.
The American model is used in most federal states of Latin America (Argentina, Brazil, Mexico, etc.). In countries such as, for example, Canada, Australia, India, the principles of the Anglo-Saxon legal doctrine with the concept of the supremacy of parliament are implemented. In European states (Germany, Austria, Belgium, Switzerland, etc.), based on the continental legal doctrine, there are models of bicameral parliaments that combine, in particular, the principles of federalism, separation of powers and their own unique parliamentary experience. The status of a parliamentarian in foreign countries is established: - in the constitutions (fundamental laws) of these countries (for example, Section 6 of Article I of the US Constitution, Articles 26 and 27 of the French Constitution, Articles 67-69 of the Italian Constitution, Articles 56-59 of the Federal Constitutional Law of the Republic of Austria and others); - in constitutional legislation - in laws on individual elements of the status of a deputy or, much less often, in complex laws on the status of a deputy; – in normative legal acts of the parliament, first of all – in the regulations (rules) of the chambers. For example, the Rules of Procedure of the National Assembly of France contain detailed legal regulation of the rights and obligations of members of the Assembly, as well as, in a separate chapter, their immunity and responsibility.
In the countries of the Anglo-Saxon legal system, in particular, in Great Britain, which, unlike the United States, does not have a written constitution, the status of a member of Parliament is fragmentarily regulated by the norms of many statutes (legislative acts). Among the most important of these are the Parliament Acts of 1911 and 1949, the Ministers of the Crown Acts of 1937 and 1964, the Representation of the People Acts of 1983 and 1985, the House of Commons Disqualification Act of 1975, etc. Some elements of peerage status are regulated in the Life Peerage Act 1958 and the Peerage Act 1963. In addition, in the UK, as in other countries of the Anglo-Saxon legal system, customs and judicial precedents play an important role in regulating the status of a parliamentarian. The order of formation is a very important element of the status of a parliamentarian, since the place and role that the upper house of parliament in the state will occupy, its authority in society and the ability to function normally in the system of government depend on it to a certain extent. The constitutional and legal practice of foreign countries demonstrates an extremely wide range of approaches to the formation of the second chambers of parliaments: formation through indirect elections; formation through direct elections, with some differences from the system that is used in the formation of the lower houses; formation based on inheritance; shaping by appointment; formation in a mixed way, in which elements of electivity, appointment and inheritance are combined. Under the House of Lords Act 1999,129 hereditary membership in the House of Lords was restricted. The Senate of Canada consists of 105 senators appointed by the Governor General on the recommendation of the Prime Minister from the regions of the country130. In the USA, Brazil, Nigeria, members of the upper houses are elected by general elections in the subjects of the federation. In India, for example, members of the upper house are elected by the state legislatures. In Australia and Canada, the Senate is appointed by the Governor General, the German Bundesrat is appointed by the governments of the states. The formation of the upper chambers of parliaments can be carried out on the basis of equal or unequal representation of subjects. Thus, in the US, each state sends two representatives to the Senate, in Pakistan - 14 each. The German Bundesrat is a representation of all 16 lands, consists of members of the governments of the lands, who appoint and recall them. Each land has at least three votes. Lands with a population of over 2 million have four votes, over 6 million have five, and over 7 million have 6 votes. Members of the Bundesrat have no term of office. In addition, deputies from the same land must vote in unison131. To determine the procedure for the formation of the Federation Council, the following experience of foreign countries is of interest: out of 40 second chambers, 21 are elected through direct elections of members of the chamber (Poland, Romania, the Czech Republic, Switzerland, the United States of America, Japan, etc.).
In the constitutional and legal practice of foreign countries, the relations of the federal (national) parliament with the legislative bodies of the subjects of the federation (regions), as a rule, are not of an institutional nature. In cases where the upper house is formed by indirect elections (France), there are certain relationships between the members of this house and the electoral colleges representing regional and local legislatures. However, as a rule, we are not talking about an imperative mandate - the motivation of the members of the Federation Council to take into account regional interests is formed indirectly (by combining elected positions in representative bodies of different levels, political responsibility to the population, etc.).
The relations of the upper chamber and (or) its members with the executive bodies of the regions acquire an institutional character if this chamber is formed by appointment. One of the most striking examples is Germany. The group of members of the Bundesrat representing a particular state is essentially the representation of the respective state government. In addition, under the Bundesrat, on the basis of the regulation of this body, there is a Permanent Advisory Council consisting of authorized representatives of the lands. Its functions include advising the President and the Presidium of the Bundesrat, as well as assisting in holding plenary meetings and making administrative decisions, as well as in organizing the interaction of the Bundesrat with the federal government. The peculiarities of the relationship between members of the Federation Council and the legislative and executive bodies of state power of the constituent entities of the Russian Federation are determined by the direct norm of the Constitution of the Russian Federation and the provisions of the current legislation on the procedure for forming the Federation Council that develop it. Institutional relations between the chambers of the Federal Assembly and the constituent entities of the Russian Federation as authorities arise within the framework of legislative procedures based on the provisions of Article 136 of the Constitution and a number of federal laws (for example, when amending chapters 3-8
of the Constitution of the Russian Federation, consideration of bills on subjects of joint jurisdiction of the Federation and its subjects, when considering draft bilateral agreements between the Russian Federation and subjects of the Russian Federation).
As noted earlier in this work, the Council of Legislators of the Russian Federation under the Federal Assembly of the Russian Federation (Council of Legislators of the Russian Federation) plays an important role in the interaction between the Federation Council and the legislative (representative) bodies of state power of the constituent entities of the Russian Federation ). November 19–22, 2012 at the Moscow State University named after M.V. Lomonosov, for the first time, a seminar was held for members of the Council of Legislators of the Russian Federation under the Federal Assembly of the Russian Federation with the participation of representatives of the Administration of the President of the Russian Federation, the Government of the Russian Federation, the Constitutional Court of the Russian Federation, other federal government bodies, as well as leading experts of the country. The seminar addressed the issue of strengthening the scientific validity of the adopted legislative decisions. The proposals of the state authorities of the constituent entities of the Russian Federation on various issues of improving federal legislation, materials received from federal ministries and departments, were reflected in the decisions of the Council of Legislators and its Presidium. All decisions of the Council of Legislators and its Presidium, adopted at the meetings, were sent to the federal state authorities and state authorities of the constituent entities of the Russian Federation for use in their work. The Federation Council regularly received replies from federal state authorities and state authorities of the regions on the practical implementation of the adopted decisions. December 13, 2012 at the second meeting of the Council of Legislators of the Russian Federation with the participation of the President of the Russian Federation V.V. Putin, for the first time, the discussion of important state problems took place in the form of a free discussion, members of the Council of Legislators of the Russian Federation had the opportunity to ask questions to the President of the Russian Federation. This practice requires regulatory consolidation and expansion. According to the Charters (Basic Laws) of a number of constituent entities of the Russian Federation, members of the Federation Council from the respective region have the right to initiate legislation (for example, the Komi Republic, Mari El, Mordovia; Perm region, Arkhangelsk region, Moscow region, Nizhny Novgorod region, Penza region, Samara region, Saratov region, Tambov region, Ulyanovsk region, St. Petersburg). In his Address to the Federal Assembly of the Russian Federation on December 12, 2012, President of the Russian Federation V.V. Putin pointed out that “I consider it right to give members of the Federation Council and deputies of the State Duma the right to initiate legislation in the legislative assemblies of their subject of the Federation. Thus, we will strengthen the connection of federal legislation with the life of the regions and the legislator as such.
The next element of the status of a member of the Federation Council is responsibility. As is known, several types of legal liability are distinguished in science: constitutional-legal, administrative-legal, civil-law, criminal-legal, disciplinary liability. However, the last four types of responsibility are not directly related to the constitutional and legal status of a member of the Federation Council, since they are applied to a member of the Federation Council as a person, and not as a parliamentarian. In this regard, within the framework of this work, we consider only the first type of responsibility. As noted by S.A. Avakyan, “each branch of law must ensure the implementation of its norms by its own means, including measures of responsibility. The presence of measures of responsibility is the same sign of the industry as “own” social relations, “own” norms that regulate these relations”217. The most important condition for the effectiveness of constitutional and legal responsibility is a clear fixing in legislative acts of the composition of a constitutional offense. There is an opinion in the literature that it is impossible “to give an exact list of circumstances that can serve as the basis for constitutional responsibility”218. Fixing such a list is necessary, since a prerequisite for the onset of legal liability is the presence in the actions of a person of the offense specified in the law. Otherwise, political, moral or other, but not legal, responsibility may arise. Based on the indicated signs, it should be noted that depriving a member of the Federation Council of immunity is not a measure of constitutional and legal liability, since in this case there are no grounds for this type of liability, and Negative consequences for this subject. Deprivation of immunity does not deprive a person of his special status, but only restores the possibility of his unhindered criminal prosecution.
According to Federal Law No. 3-FZ of May 8, 1994 (as amended on July 23, 2012) “On the Procedure for Forming the Federation Council of the Federal Assembly of the Russian Federation”, a member of the Federation Council may be recalled only on the grounds specified in part 1 of Article 4 of the said law: a written statement of resignation, loss of citizenship of the Russian Federation, the entry into force of a guilty verdict of the court, etc. Accordingly, the legislation now lacks a provision on the possibility of early termination of the powers of a member of the Federation Council by the elected (appointed) state authority of the subject, which, of course, will positively affect the quality of the work of the chamber and give greater stability to its work. Article 9 of the Federal Law “On the Status of a Member of the Federation Council and a Deputy of the State Duma of the Federal Assembly of the Russian Federation” refers to the obligation of a member of the Federation Council to comply with ethical standards, while liability for violations of ethical standards is enshrined in the regulations of the Federation Council. In addition, paragraph 12 of Article 30 of the regulations of the Federation Council provides, among the powers of the Committee of the Federation Council on the Regulations and Organization of Parliamentary Activities, the observance of parliamentary ethics in the Federation Council, however, at the legislative level there are no norms regarding the behavior and observance of discipline by members of the Federation Council, ethical rules, as well as a clear legal mechanism for influencing a member of the Federation Council in case of violation of these norms. The code of parliamentary ethics has not yet been adopted, while the moral and ethical aspect occupies an important place in the activities of a parliamentarian. According to the Decree of the Senate of Romania of March 23, 1993,219 a speaker is not entitled to point out to the opponent during speeches or parliamentary debates as an argument about appearance, events from his personal life, his nationality or ethnic origin; it is unacceptable to use insulting expressions in relation to the enemy regarding his beliefs, mentality, origin, social position, profession, education. As practice shows, the level of culture of the members of the Federation Council remains rather low. Thus, at one of the meetings of the Federation Council, it was proposed to continue discussing the issues on the agenda in a closed session due to the use of non-parliamentary expressions in speeches220; On June 29, 2011, State Duma deputy, co-chairman of the "Union of Communists" V. Yurchik appealed to the prosecutor of the Krasnoyarsk Territory with a request to involve a member of the Federation Council V. Oskin to responsibility for desecration of the red flag. At present, the Order of the Chairman of the Federation Council of the Federal Assembly of the Russian Federation dated March 11, 2011 No. 48rp-SF “On the Code of Ethics and Official Conduct of the Federal State Civil Servant of the Office of the Federation Council of the Federal Assembly of the Russian Federation, Assistant Member of the Federation Council of the Federal Assembly of the Russian Federation for Work in the Federation Council of the Federal Assembly of the Russian Federation, filling a position under a fixed-term service contract.
As a result of studying this chapter, the student should:
- know features of the formation of the Federation Council; the procedure for electing deputies of the State Duma; types of acts adopted by the Federation Council and the State Duma;
- be able to disclose the main forms of activity of the chambers of the Federal Assembly; generalize the norms defining the functions and powers of the Federal Assembly;
- own the skills of a systematic analysis of the provisions of the Constitution of the Russian Federation and federal legislation that determine the constitutional and legal status of the State Duma and the Federation Council, deputies of the State Duma and members of the Federation Council.
Constitutional and legal status of the Federal Assembly of the Russian Federation
In the Russian Federation, the representative and legislative body, the parliament is the Federal Assembly (Article 94 of the Constitution of the Russian Federation). The Russian Parliament, in accordance with Art. 99 of the Constitution of the Russian Federation, is a permanent body of state power.
The name "Federal Assembly" emphasizes the conditionality of the status of parliament by the federal nature of the state.
According to Part 1 of Art. 95 of the Constitution of the Russian Federation, the Federal Assembly consists of two chambers - the Federation Council and the State Duma.
The State Duma is formed from deputies representing the interests of the entire population of Russia, and the Federation Council consists of members representing the constituent entities of the Russian Federation. If the State Duma is recognized as a symbol of the direct representation of the Russian people, then the Federation Council is defined as a participant in the system of relations of indirect people's representation.
The main activity of the Federal Assembly of the Russian Federation is the adoption of laws that, after the Constitution of the Russian Federation, have the highest legal force in comparison with other normative legal acts.
The foundations of the constitutional and legal status of the Federal Assembly are determined by the Constitution of the Russian Federation (Chapter 5 "Federal Assembly" and other chapters). There is no special federal law regulating the constitutional and legal status of the Federal Assembly.
The procedure for the formation of the Federation Council and the election of deputies of the State Duma
The procedure for the formation of the Federation Council and the election of the State Duma in the modern period, in accordance with the provisions of Part 2 of Art. 96 of the Constitution of the Russian Federation, established by Federal Laws of February 22, 2014 No. 20-FZ "On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation" and of February 3, 2012 No. 229-FZ "On the Procedure for Forming the Federation Council of the Federal Assembly of the Russian Federation" .
Powers in accordance with Part 2 of Art. 95 of the Constitution of the Russian Federation, the Federation Council includes two representatives from each subject of the Russian Federation: one from the representative and executive bodies of state power. It should be noted that only representatives of these bodies can be members of the Federation Council.
Formation of the Federation Council, a member of the Federation Council may be endowed with a citizen of the Russian Federation who does not have the citizenship of a foreign state or a residence permit or other document confirming the right to permanent residence a citizen of the Russian Federation on the territory of a foreign state, and who has reached the age of 30 years.
A candidate for the election of a representative to the Federation Council from a unicameral or bicameral legislative (representative) body of state power of a subject of the Russian Federation is submitted for consideration by this body by its chairman or chairmen of the chambers. An alternative candidate may also be nominated by a group of deputies numbering at least 1/3 of the total number of deputies of the legislative (representative) body of state power of a constituent entity of the Russian Federation.
The election of a representative of the legislative (representative) body of state power of a constituent entity of the Russian Federation, depending on the structure of this body, can take place in different ways. If a constituent entity of the Russian Federation has a unicameral legislative (representative) body of state power, then a representative from this body is elected by the same body for the term of its powers. If the legislature is bicameral, then such a representative is elected in turn from each house for half the term of office of the respective house.
The decision to elect a representative to the Federation Council is taken by secret ballot and formalized by a resolution of a unicameral legislative (representative) body of state power of a constituent entity of the Russian Federation or a joint resolution of both chambers of a bicameral legislative body of a constituent entity of the Russian Federation.
A representative from the executive body of state power of a subject of the Russian Federation is appointed by the highest official of the subject of the Russian Federation for the term of his powers.
If the highest official of a constituent entity of the Russian Federation is elected by citizens residing on the territory of that constituent entity of the Russian Federation, each candidate for this position submits three candidates to the relevant election commission, one of which, if the candidate who presented it, is elected, will be vested with the powers of a member of the Federation Council. If the constitution (charter), the law of the constituent entity of the Russian Federation provides for the election of the highest official of the constituent entity of the Russian Federation as deputies of the legislative (representative) body of state power of the constituent entity of the Russian Federation, the candidate for the position of the highest official of the constituent entity of the Russian Federation shall nominate a representative from the executive body of state power of the constituent entity of the Russian Federation to the legislative (representative) body of the corresponding subject of the Russian Federation. The decision to empower a member of the Federation Council - a representative of the executive body of state power of a constituent entity of the Russian Federation must be taken by the newly elected highest official of the constituent entity of the Russian Federation no later than the day after the day he takes office. This decision is formalized by an appropriate decree (decree).
The state authority of the constituent entity of the Russian Federation that has made the decision to elect (appoint) a member of the Federation Council, no later than the next day after the day the decision enters into force, posts it on the official website of this state authority of the constituent entity of the Russian Federation on the Internet and sends it to the Federation Council .
The powers of a member of the Federation Council begin from the day the Federation Council makes a decision to confirm his powers, and terminate from the day the Federation Council makes a decision to confirm the powers of a new member of the Federation Council - a representative from the same public authority of a constituent entity of the Russian Federation, which is necessary for the continuity of the exercise of state power.
