<<
>>

powers of public authorities of subjects of the Russian Federation on legality maintenance in activity of bodies and officials of local government

By the current moment time of power of subjects of Federation on control of work of municipal bodies can consolidate in two groups which have raznonapravlennye development tendencies. The first direction of development is an actual duplication of control powers of federal bodies at regional level.

Now it is possible to establish, that the state control at regional level has no basic differences from the control at federal level neither on means and control methods, nor on powers of bodies, its carrying out. The second tendency is an increase in a role of subjects of Federation in the course of attraction of municipal bodies and their officials to responsibility.

For achievement of the purposes of the given dissertational research it is represented to us expedient to investigate these tendencies of development of the legislation. According to item 2 of the Federal act from October, 6th, 1999 № 184-FZ «About the general principles of the organisation legislative (representative) and executive powers of the government of subjects of the Russian Federation» system of public authorities of subjects of the Russian Federation constitute: representative (legislative) bodies of subjects of Federation; the higher executive powers of subjects of Federation; other bodies of subjects, obrazuemye on the basis of constitutions (charters) of subjects of Federation [183]. For disclosing of powers of public authorities of subjects of Federation on legality maintenance at local level we will be guided by the given classification established by the legislation.

The first subject having control powers on maintenance of legality in activity of municipal bodies, representative (legislative) bodies of subjects of Federation act. The control over execution of the current legislation regulating local government, and the financial (budgetary) control concern the basic directions of control activity of representative bodies at local level.

Despite the fact that what the basic function of representative (legislative) body of subjects of the Russian Federation consists in acceptance of legal acts, they are allocated by powers under the control over execution of the subject of Federation of the legislation operating in territory by all participants of legal relations. Bodies and officials of local government are not an exception. So, for example, the Charter (Organic law) of the Amur region from December, 13th, 1995 № 40-OZ fixes following position: «the House of Assembly in limits and the forms established by the present Charter and laws of area, along with other representatives on that bodies

Carries out the control for:

1) observance and execution of the Charter of area, laws and other standard legal acts of area accepted by the House of Assembly »[184].

The same position is fixed by constitutions (charters) of other subjects of the Russian Federation. However some regions directly specify in representative body possibility to supervise local government. For example, in the Charter (Organic law) of Tomsk area from July, 26th, 1995 № 136 also it is fixed, that «the Duma has the right to supervise execution by local governments of laws of area» [185].

Besides the control of execution of the legislation representative bodies of subjects of the Russian Federation spend also the financial control.

Basically the given kind of the control is carried out by consideration (statement) of the budget or at the report on its execution, and also it is spent by corresponding committees of representative bodies according to regulations of their work.

Along with the control which is carried out by deputies, a legislature of subjects of Federation creates special bodies of the financial control with which are schetnye chambers of subjects of Federation [186]. Powers under financial control Schetnoj of chamber extend on a wide range of subjects, including on activity of local governments if they receive, list or use means of the regional budget, and also use or operate the property of subjects of the Russian Federation, have tax, other privileges and advantages. Thus regional kontrolno-schetnye bodies of subjects

Federations are not more rare than time in two years spend external financial check of the annual reporting about execution of the local budget [187].

For realisation of the appropriate control over activity of municipal bodies representative (legislative) bodies of subjects of the Russian Federation are allocated by corresponding powers, and also have methods and control means. The analysis of the normative acts regulating activity of given bodies, shows, that their powers are similar to powers of Federal assembly of the Russian Federation. Thus regional normative acts consider specificity of the concrete subject of the Russian Federation and focus attention on those or other features of activity of deputies.

Representative (legislative) bodies of subjects of Federation can spend parliamentary hearings, deputy investigation [188], send deputy inquiries [189]. Deputies have right prime reception by officials, including local bodies [190], the right to reception and distribution of the information on activity of local governments [191], the right to demand elimination of law-breaking and attraction guilty to responsibility [192] etc.

Thus, we can carry representative (legislative) bodies of subjects of the Russian Federation to number of the independent subjects, capable to provide legality in work of municipal bodies.

Heads of the higher executive office of the government of subjects of the Russian Federation too are allocated by powers (the rights and duties) on legality maintenance in work of municipal bodies. For example, the legislation of some subjects of the Russian Federation provides norms according to which the governor or the head of republic can offer local bodies or officials to correct certificates of local government contradicting the legislation, and in case of disagreement - to challenge it in court [193]. Along with it constitutions (charters) of some subjects of Federation grant to the head of the subject of Federation the right to create consultative (advisory) and coordination bodies for the organisation of interaction of the state bodies with local governments, and also to render to municipalities assistance and the methodical help [194]. In some subjects of the Russian Federation creation of a post of the representative of the governor (the head of republic) in municipality [195] is provided.

In our opinion, the main functions of the governor or the head of republic in sphere of maintenance of legality at municipality level are reaction to infringement of the current legislation and attraction of bodies and officials of municipal union to responsibility. The governor (the head of the subject of the Russian Federation) can leave with the initiative of dissolution of a legislature of municipalities and dismissals from a post of the head of municipal union or the head of local administration, besides, it makes the decision on time realisation by the state bodies of subjects of Federation of powers of local bodies.

Along with representative (legislative) body the higher official of the subject of the Russian Federation also is allocated by powers (the rights and objazanostjami) on legality maintenance in work of bodies and officials of local government. As it is provided by constitutions or charters of subjects of the Russian Federation, they carry out the control over that municipal legal acts did not contradict the federal and regional legislation, and in case of infringement revealing offer bodies and officials of local government to bring municipal certificates into accord with the legislation [196].

Executive powers of subjects of the Russian Federation use similar methods with federal bodies and means of an establishment and legality maintenance at municipal level. In our opinion, it is caused by unity of system of enforcement authorities. However it is necessary to note two features of control activity of executive powers of subjects of Federation.

First, the list of the bodies having regional submission, not so is extensive, as the list of federal executive powers. So, for example, in structure of enforcement authorities of the Saratov area it is possible to allocate

The ministry of building and housing and communal services of the Saratov area; the Ministry of affairs of territorial formations of the Saratov area; the Ministry of transport and a road economy of the Saratov area; Committee of an investment policy and property relations of the Saratov area; Committee of state regulation of tariffs of the Saratov area; Kontrolno-analytical committee of the Saratov area; Committee of the hunting economy and fishery of the Saratov area; Committee on maintenance of activity of world judges of the Saratov area; Management of veterinary science of the Government of the Saratov area; Management on interaction with law enforcement bodies and to counteraction of corruption of the Government of the Saratov area; Protection department of objects of a cultural heritage of the Government of the Saratov area; the State housing inspection of the Saratov area; The state inspection on supervision of a technical condition of self-propelled cars and other kinds of technics of the Saratov area [197].

Secondly, the basic loading lays down on enforcement authorities of subjects of the Russian Federation under the control over execution by municipal bodies of the transferred state powers. The given kind of the control is led both behind legality, and behind expediency. It is caused by that in the Russian legislation the tendency of narrowing of powers of municipal bodies and increase in the state powers transferred to municipal level is traced, especially subjects of Federation.

Carrying out the control over realisation of the separate transferred

The state powers, the state bodies of all subjects of Federation keep account states of affairs, collect and analyze the information in corresponding fields of activity of local governments. The state bodies have possibility to react to illegal and inexpedient actions of bodies and officials of local government, to restore the broken norms of the legislation.

The analysis of laws of subjects of Federation about investment of municipal bodies with the state powers gives the chance to us to allocate forms of the state control: carrying out of legal examinations and checks of certificates of the municipal bodies accepted in connection with execution by them transferred state powers; carrying out of audits and checks of activity of municipal bodies; a summer residence of written instructions on elimination of infringements; a summer residence of instructions to municipal bodies concerning realisation of the transferred separate powers; reception of documents (information) and a direction of inquiries concerning realisation of the transferred state powers; zaslushivanie reports of municipal bodies; appointment of the authorised officials for regular supervision over realisation of the transferred separate state powers [198].

The indispensable component of the control which are carried out in full, possibility to involve guilty to responsibility is, therefore at revealing of infringements supervising state bodies of subjects of Federation can apply certain measures of compulsory character. The legislation fixes such measures of negative character, as stay or cancellation of the local certificates accepted for realisation of the state powers; the state officials can suggest to involve to corresponding municipal bodies in a disciplinary responsibility of guilty municipal employees; the termination or stay of realisation of separate state powers and some other.

So, for example, in the Kaliningrad area the state bodies at control of execution of the separate powers transferred by the state are allocated by the right:

- To instruct municipal bodies concerning realisation of the transferred separate powers;

- To adjust decisions on realisation of the state powers;

- To direct inquiries and to receive the documentation and other information;

- To hear reports of municipal bodies;

- To spend checks and audits of activity of municipal bodies;

- In case of detection of infringements of laws by local governments or officials of local government to give written instructions on elimination of such infringements, obligatory for execution by local governments and officials of local government.

Performance of the transferred (delegated) separate state powers can be ceased or suspended in following cases:

- Failure of justice or inadequate realisation of powers;

- Revealings of the facts of infringements of the legislation;

- Inexpediency of realisation of separate state powers [199].

According to ch. 1 items 21 of the Federal act from October, 6th, 2003 № 131-FZ government executive powers can carry out the control as behind realisation by local governments of the delegated separate state powers, and behind use given on these purposes material and financial resources.

Financial bodies of subjects of the Russian Federation provide carrying out of a uniform budgetary, tax, financial and currency policy. Thus local governments regarding observance financial and tax laws fall under their jurisdiction. For example, in the Rostov area the Ministry of Finance is the state body which carries out functions on is standard-legal regulation tax, budgetary and financial spheres, spending a uniform state policy, and also co-ordinating activity of the state and municipal bodies of the Rostov area in the given spheres [200]. The regional Ministries of Finance carry out financially-budgetary to the policy in the subject of the Russian Federation by means of acceptance of legal acts, carrying out of checks and rendering of the methodological and financial help to municipal unions.

The subordinate legislation normative acts financial bodies of subjects of Federation can regulate activity of municipal bodies. So, for example, in Stavropol Territory the Ministry of Finance, proceeding from the competence, issues orders, instructions, methodical materials, and also supervises their execution and makes explanations on their application, including in this process for development of the joint decision other enforcement authorities [201].

Along with standard regulation the state financial bodies can supervise activity of local governments, and the control is led in full, i.e. From the point of view of legality and expediency [202]. The Ministry of Finance of subjects of Federation carries out the control regarding observance of the budgetary legislation and other legal acts regulating tax and budgetary legal relations. For these purposes they can carry out monitoring and an estimation of quality of management of the budget in municipal unions [203]; to enquire and receive from the state and municipal bodies, legal both physical persons necessary materials and the information [204]; to receive from municipal unions reports on execution of the consolidated budget and registers of account obligations of municipalities [205]; to carry out the control over performance by local bodies of the state powers transferred to it [206].

Thus following the results of the control financial bodies of subjects of Federation can apply measures of administrative character, such as attraction to administrative responsibility [207], realisation of separate powers of municipal bodies in budgetary process at introduction of time financial administration [208] or stay (reduction) of granting of budgetary transfers from the regional budget to local budgets [209].

Thus the regional Ministries of Finance carry out not only nadziratelnye functions, they still render the methodical and financial help. For example, the Ministry of Finance of the Kirov area on the basis of agreements with local governments takes necessary measures on increase of efficiency of an expenditure of budgetary funds and increases in receipts of tax and not tax incomes of the local budget [210]. In other regions financial bodies working out of standards of the external state financial control [211], render the methodical and consulting help to financial bodies of municipal unions [212], carry out

Methodological management and coordination of activity of the state and municipal bodies [213], participate in consideration of data on level of professionalism of candidates for appointment to posts of heads of financial bodies of municipal areas [214], and also give budgetary credits to local budgets within budgetary appropriations [215].

The following independent subject providing legality in work of local bodies, authorised and constitutional courts of subjects of Federation are. According to statei 27 FKZ «About the judiciary of the Russian Federation» they consider questions on conformity to the constitution (charter) of the subject of Federation of the legal acts accepted by the state bodies of subjects of Federation and municipal bodies, it grants the right to interpret the constitution (charter) of the subject of Federation [216]. Besides, the legislation of some subjects of Federation allocates with their additional powers.

The constitutional (authorised) courts of subjects can solve disputes on the competence (powers) between bodies of subjects of Federation and municipal bodies, and also between municipal bodies [217]. These courts can draw the conclusions about conformity of bills to the constitution (charter) [218], and also official interpretation of the constitution or the charter of the subject of Federation [219]. Some subjects of Federation allocate the courts with the power to initiate legislation and possibility to consider the complaint to infringements of the rights and freedom of citizens [220].

Moreover, according to some scientists [221], for the decision of questions on responsibility of municipal bodies and officials before the state it is necessary to involve authorised (constitutional) courts of subjects of the Russian Federation in the given process. Foreign experience shows, that the constitutional court can draw the conclusion concerning discharge (dismissal) from a post of the head of municipality or local administration [222]. In our opinion, realisation of the given offer will allow to lift decision-making level on higher step and to raise trust to the accepted decisions.

According to item 72-74 of the Federal act from October, 6th, 2003 № 131-FZ to carry out dissolution of a representative body of local government or dismissal (discharge) from a post of the head of municipal union or the head of local administration it is necessary two decrees.

Originally the court should recognise the municipal legal act mismatching the legislation. At the given stage of the decision should accept the constitutional (authorised) courts of subjects of Federation, consideration of questions on conformity to the legislation of standard legal acts concerns their powers. They have the right to give official interpretation of the constitution or the charter of the subject of Federation. To check up legality of the local legal act, to define all legally significant circumstances and establish terms for correction of errors more kvalifitsirovanno in territory of the subject of the Russian Federation any court cannot.

In the second process the court should investigate questions on acceptance of measures on execution of the decision of the constitutional or authorised court, including on cancellation of the illegal standard legal act. In the decision of the given question general jurisdiction courts should be engaged.

Division of powers between vessels will allow to increase security and independence of local government and to raise legality at local level.

Regardless of the fact that the constitutional (authorised) courts are created only in two tens subjects of Federation, they are a component of the machinery of government providing legality at regional level. According to D.V.poljubina, in subjects of Federation where such courts are created, legality level above, therefore it is necessary to create the constitutional (authorised) courts in all subjects of Federation [223].

The analysis of powers of public authorities of subjects of the Russian Federation on creation and legality maintenance in work of municipal bodies shows, that these bodies have no basic differences from federal level. Thus special loading lays down on the given bodies regarding impeachment of officials and local governments. Though the analysis of experience of foreign countries shows, that local governments are made accountable by the central public authorities, and regions are not involved in the given process [224]. In our opinion, such position does not promote legality increase. From the centre it is practically impossible to estimate objectively a state of affairs in municipal union, and it is necessary, when the municipal official or body is made accountable.

The federal act from October, 6th, 2003 № 131-FZ allocates following kinds of responsibility of municipal bodies and their officials: responsibility before the municipal union population, the state, physical and legal bodies. In turn, responsibility at local level before the state is expressed in the form of dissolution of legislative municipal body, dismissal from a post of the head of municipal union or the head of local administration and time realisation by public authorities of separate powers of local governments. In all given cases the decision on impeachment is accepted by the state bodies of subjects of the Russian Federation.

Article 73 of the Federal act from October, 6th, 2003 № 131-FZ

Provides two bases for responsibility of a representative body of municipal union before the state: this unwillingness to cancel the accepted illegal legal act and not carrying out within 3 months of on end session of representative (legislative) body of municipal union. In both cases for initsiatsii dissolution procedures the decree, the basis establishing presence for dissolution is necessary

The representative body provided by the legislation. After that the higher official of the subject of the Russian Federation (the head of the higher executive office of the government of the subject of the Russian Federation) brings the bill of dissolution of municipal legislative (representative) body in legislative (representative) body of the subject of Federation. Following the results of its consideration the legislature of the subject of the Russian Federation has the right to pass the law on dissolution of legislative municipal body.

Apparently, all bodies are involved in dissolution procedure at level of the subject of the Russian Federation (legislative, executive and judicial). Connection three branches of the regional power creates at once necessary guarantees from wrongful impeachment of local governments. However the analysis pravoprimenitelnoj shows to activity, that exist "nesostykovki" in the current legislation.

The first basis for dissolution of local representative (legislative) body is acceptance by the given body of the legal act contradicting the legislation, and unwillingness it to cancel even in the presence of the judgement which has entered validity (ch. 1 items 73 of the specified Law). On sense of given article legally significant circumstance is acceptance by representative municipal body of the legal act contradicting the legislation, the decree, establishing the given fact, and also nonacceptance of measures on decree execution, including on cancellation of the illegal standard right certificate.

On the basis of a part of 1 article 73 of the Law from October, 6th, 2003 № 131-FZ it is dismissed more than ten representative bodies of municipal unions. In the given plan dissolution of a representative body of Yelets Lipetsk area is indicative. By the decree of Yelets from January, 19th, 2006 it has been recognised, that some articles of the Charter of a city contradict requirements of the federal and regional legislation. Besides, the decree recommended to representative body Eltsa to bring within one month the city Charter into accord with the legislation [225]. The Decree from March, 21st, 2006 established, that the instruction has not been executed [226], and a representative body of Yelets has been dismissed by the law of Lipetsk area [227]. The similar situation is and with other municipal unions. Attracts attention, that the illegal legal act (the municipal union Charter) has been accepted by the previous structure of a representative body. Besides, at the moment of acceptance the municipal union Charter corresponded to current legislation requirements. Discrepancy has resulted from change of the federal legislation, instead of actions of deputies of a representative body of municipal union.

As the developed judiciary practice shows, the fault of a representative body in occurrence of the illegal legal act has no value. The court only establishes presence of the illegal legal act. The fault of a representative body is absorbed by the objective party and in this connection the court does not prove its presence.

Thus from sense ch. 1 item 73 of the Federal act from October, 6th, 2003 № 131-FZ is traced an imperative need in an establishment by fact court, «that the municipal union representative body accepts the regulatory legal act contradicting...». According to the given formulation, according to structure of konstitutsionno-legal responsibility it is necessary to find out the reasons of acceptance of the illegal certificate. In this connection the Supreme Court of the Russian Federation has specified, that at the preschedule termination of powers of municipal officials and bodies on the bases of discrepancy of their actions it is necessary for legislation to consider the reasons (motives) of the edition of illegal certificates: complexity and an ambiguity of legal relations or neglect the law [228]. However responsibility of a representative body comes not for the edition of the illegal legal act, i.e. Not for those actions which are specified in ch. 1. Law item 73, and in case of nonacceptance of measures for decree execution, i.e. For inactivity.

On the basis of the above-stated we believe expedient to make change in ch. 1 item 73 of the Law from October, 6th, 2003 № 131-FZ and to fix it in offered edition:

«1. In case the corresponding court establishes presence of the standard legal act contradicting the Constitution of the Russian Federation, to federal constitutional laws, federal acts, the constitution (charter), laws of the subject of the Russian Federation, the municipal union charter, and in the term established by court the representative body of municipal union within the powers has not accepted measures on decree execution, including has not cancelled the corresponding standard legal act, the higher official of the subject of the Russian Federation (the head of the higher executive office of the government of the subject of the Russian Federation) within one month after coming into force of the decree which have established the fact of default of the given decision, Brings in legislative (representative) public authority of the subject of the Russian Federation a bill of the subject of the Russian Federation about dissolution of a representative body of municipal union ».

The exception of the bases of responsibility of a representative body of local government of the formulation about acceptance of the illegal legal act by it will create a legal design according to which responsibility comes not for the edition of the illegal legal act, and for unwillingness the illegal legal act to bring into accord with the legislation. Thus given change will allow to bring norm structure into accord with the developed practice of application ch. 1 items 73 of the Federal act from October, 6th, 2003 № 131-FZ.

The second basis of dissolution of local legislative (representative) body is not carrying out within three months on end competent session at acknowledgement of the given fact by the decision of corresponding court (ch. 2.1, 2.2 items 73 of the Federal act from October, 6th, 2003 № 131-FZ).

The reasons for not carrying out of competent session there can be a set. As practice shows, representative body session breaks in the absence of quorum. On political or personal motives separate deputies do not visit session or, being engaged in internal dismantlings, break it [229].

There are also other reasons not visitings by deputies of sessions of a representative body. For example, in Barjatinsky municipal area of the Kaluga area in regional council structure enters fifteen deputies, from them four live far outside of the regional centre. They do not visit session. No transport have, and to come on sessions on passing transport inconveniently as it nobody pays travelling and living expenses. The deputies voluntary do not hand over mandates, since. They contain for them certain guarantees [230]. It is necessary not to come to several more deputies, and the quorum will not be.

Sessions can not be spent also because of inactivity of the chairman of legislative (representative) body. For example, chairman Konstantinovsky of rural settlement of Tutaevsky area of the Yaroslavl area did not assemble Council more than three months. After acknowledgement of the given fact by the decree by the Law of the Yaroslavl area from February, 28th, 2008 № 11-z «About dissolution of municipal council of Konstantinovsky of rural settlement of the Yaroslavl area» [231], Council has been dismissed.

As judiciary practice shows, in case of dissolution of local legislative (representative) body on the basis not carrying out within three months on end competent session courts find out only the fact of carrying out or not carrying out of competent session, instead of the reason [232].

Despite presence of the mechanism of dissolution of a representative body of local government, 67 % of the municipal employees interrogated within the limits of given research, have answered, that public authorities should not have possibility to dismiss the local representative

(Legislative) body, deputies of municipal union. Thus on a question, whether should the head of the subject of the Russian Federation (the governor or the head of republic) to have possibility of discharge from a post of the head of local administration or the head of municipal union, only 27 % of respondents have answered negatively, and 70 % have declared, that the higher official of the subject of Federation should have possibility to send in resignation of officials of executive powers of municipal union, and 2 % of respondents were at a loss to answer [233]. According to respondents,

Representative bodies of subjects of the Russian Federation cannot make municipal structures accountable, and the head of the subject is obliged

To have such possibility.

The similar tendency is traced and in the legislation. Along with powers in the course of dissolution of a representative body of municipal union the governor or the head of republic can release to (discharge) of a post the head of municipality or the head of local administration. The law from October, 6th, 2003 № 131-FZ establishes two bases of discharge from a post of the head of municipal union and the head of local administration: first, the edition of the illegal standard legal act and not acceptance in time, established by court, measures on cancellation of the given certificate (ch. 1 items 1 of item 74 of the Law); Secondly, fulfilment of actions or acceptance of the legal act having not standard character, the rights attracting infringement and freedom of the person and the citizen, threat to unity and territorial integrity of the Russian Federation, national safety of Russia and its defensibility, to unity of legal and economic space of the Russian Federation, a no-purpose expenditure of subventions from the federal budget or regonalngo the budget (ch. 2 items 1 of item 74 of the Law).

In case one of the given circumstances is established by the decree and when due hereunder measures on execution of the decree by the head of local administration or the head of municipality are not taken, the higher official of the subject of Federation is obliged to release them from a post.

Considerable role the governor or the head of republic in removal procedure in resignation (plays dismissals from a post) heads of municipality a local legislature, on the basis of item 74.1 of the Federal act from October, 6th, 2003 № 131-FZ. According to given article the local representative (legislative) body has the right to send in resignation the head of municipality, being based on own initiative, or at the initiative of the higher official of the subject of the Russian Federation. Besides, even if removal in resignation occurs at the initiative of a representative body, deputies are obliged to notify on the given initiative of the governor (the head of region) and at voting to consider its opinion. And on occasion the head of municipality can be sent in resignation only at the consent of the higher

The official of the subject of the Russian Federation.

Studying of given article regarding participation of the governor or the head of republic in removal procedure in resignation of the head of municipal union causes set of questions.

Undoubtedly, that fact is evident, that for removal initiation in resignation of the head of municipal union the decree is not required. According to specified article the personal belief (opinion) of the governor or the head of republic that the head of municipal union has made one of the actions provided by the legislation is required only. It is enough of it for state intervention in activity of bodies and officials of municipal union. In our opinion, it is not admissible, provided that item 74.1 fixing the basis of removal of the head of municipal union in resignation, contains many estimated concepts.

For example, ch. 2 items 2 of given article are established by the liability for nonperformance within three and more months of duties on maintenance of realisation with local governments of separate state powers. Article contains not clear formulation of the basis of responsibility «default.... Duties on maintenance of realisation with local governments of separate state powers». From article formulation not clearly, what local government should execute the state powers, whether there is a fault of the head of municipal union what the conferred powers have not been executed? If literally to interpret given article, the head of municipal union himself should not execute power, it should provide their execution only. What means to provide execution? To organise work, to provide with accommodation or shots, probably, to allocate sufficient financing, but the head of municipal union the budget does not approve also receipt of the grant from means of the higher budget does not supervise.

Many questions cause and ch. 5 items 2 of item 74.1 of the Law from October, 6th, 2003 № 131-FZ. It provides responsibility for mass infringement of the state guarantees of equality of the rights and freedom of the person and the citizen depending on race, nationalities, language, the relation to religion and other circumstances. What means concept «mass infringement of the state guarantees», especially in an ethnic question? There can be at once a question with republics where internal dialogue and correspondence between employees goes on a national language that is supposed by the legislation, and two municipal employees do not understand a national language, do not understand colleagues and sense of the documents written on a national language. Whether there will be it infringement of their rights? And if such employees will be ten, whether this infringement will have mass character? Who will define the fact of infringement and mass character? On sense of given article the governor or the head of republic should solve the given questions independently.

It is thought, removal in resignation of the head of municipal union on the basis of estimated judgements of the governor (the head of republic) is inadmissible. As also the responsibility bases are formulated not accurately enough. In our opinion, the personal estimation (opinion) of the state official is not the basis for intervention in work of local governments.

According to item 4 of item 74.1 removal in resignation of the head of municipal union by members of a representative body of municipal union is carried out taking into account opinion of the higher official of the subject of Federation. The given position causes set of questions. What means to consider opinion of the governor or the head of republic? Easier to sound at session of a representative body the letter of the higher official of the subject of the Russian Federation or to make still any actions? Not clearly, whether there will be consequences if the opinion of deputies does not coincide with opinion of the higher official of the subject of Federation, and they will vote differently.

Disputable position of item 5 of item 74.1 of the Law from October, 6th, 2003 № 131-FZ according to which in some cases without approval of the governor (the head of republic) deputies of a municipal representative body cannot send the head of municipal union in resignation also is. For example, without the consent of the governor or the head of republic it is impossible to send the head in resignation

Municipal union even if deputies two times successively unsatisfactorily estimated its activity (ch. 3 items 1 of item 74.1). In this case for the head of municipal union has no value as its work is estimated by local deputies and the population, more important criterion considers an estimation given by the higher official of the subject of the Russian Federation. Vysheoznachennaja the measure is aimed at strengthening of influence of the higher official of the subject of the Russian Federation, on personnel selection in municipal unions that breaks the basic constitutional principle

Organizational independence of local government, allowing the state to interfere with procedure of clearing of a post of officials of municipal bodies.

Influence on personnel questions, consent on appointment or dismissal is an obligatory element of the centralised system of bodies. The head in relation to subordinates can carry out these actions only. On the basis of article 12 of the Constitution of the Russian Federation local governments are not included into system of public authorities, and, in a consequence of it, and the coordination of dismissal of the higher official of municipality the state officials of the power is inadmissible.

In our opinion, individual intervention of the governor (the head of republic) in procedure of dismissal (discharge) from a post of the head of municipal union does not strengthen legality in activity of local bodies. For restoration of a mode of legality at local level already there are the mechanisms fixed by item 73 and 74 Laws from October, 6th, 2003 № 131-FZ.

Consider expedient to change the maintenance of item 74.1 of the Federal act from October, 6th, 2003 № 131-FZ, having excluded from it all powers (the rights and duties) the higher official of the subject of the Russian Federation (the head of the higher executive office of the subject of the Russian Federation) at all stages of removal of the head of municipal union in resignation local legislative body. We suggest to leave the decision of the given question at local level, not involving to this process of officials of the government.

Following kind of responsibility of municipal bodies and their officials before the state it is necessary to consider responsibility for appropriate time realisation by public authorities of separate powers of local governments. In article 75 of the Federal act from October, 6th, 2003 № 131-FZ for the first time provides possibility of compulsory withdrawal of powers at bodies and officials of municipality, and also execution of these powers (the rights and duties) the state bodies. Given article names three bases for time realisation by the state bodies of local powers: absence and impossibility of formation of local governments for the reasons of acts of nature or other extreme situations; presence at municipal union of the delayed debts under debt and budgetary obligations over the determinate sum; Assumption of infringement of the legislation at realisation of the separate transferred state powers. In all cases the basic loading on withdrawal and time execution of separate powers of municipal bodies lays down on the state bodies of subjects of the Russian Federation.

At absence and impossibility to generate local governments because of spontaneous (natural) disasters or extreme situations the higher official of the subject of the Russian Federation on the basis of the decision of a representative body of municipal union or the decision of legislative (representative) body of the subject of Federation publishes the decree (decision) about time realisation by executive powers of the government of the subject of the Russian Federation of powers of local governments.

When there are delayed debts at municipal union on execution of debt and budgetary obligations over the determinate sum, at the initiative of the higher official of the subject of Federation, a representative body of municipal union or the head of municipal union, being guided by the decision which has been taken out by arbitration court, the time financial administration is established.

In case of an assumption of infringements of the legislation at realisation of the separate transferred state powers and establishments court of the given fact ought, the decision on time realisation of separate powers of local governments by enforcement authorities of the subject of the Russian Federation is accepted by the higher executive office of the government of the subject of the Russian Federation.

Following the results of the analysis of powers of regional officials and the bodies, capable to provide in activity of local governments, it is possible to establish legality, that they have no basic differences from federal level. Public authorities of subjects of Federation use similar means with federal bodies and methods of maintenance of legality. However it is necessary to notice, that special loading lays down on subjects of Federation regarding impeachment of municipal bodies and officials. At the same time a legislature of subjects of the Russian Federation and the higher officials of subjects of the Russian Federation has powers on dissolution of municipal representative bodies and discharge from a post of heads of municipalities and administrations.

2.3.

<< | >>
A source: Arzhanov Vladimir Vladimirovich. is administrative-LEGAL WAYS of MAINTENANCE of LEGALITY In ACTIVITY of LOCAL GOVERNMENTS. The dissertation on competition of a scientific degree of the master of laws. Saratov.

More on topic powers of public authorities of subjects of the Russian Federation on legality maintenance in activity of bodies and officials of local government:

  1. of Power of federal public authorities on maintenance of legality in activity of municipal bodies
  2. Article 7. The rights and duties of public authorities, local government, the organisations which are carrying out publicly significant functions, and also their officials at acceptance, registration and consideration of references
  3. 3.2 Problems of an establishment of additional guarantees of suffrages of citizens in the legislation on elections in public authorities of subjects of the Russian Federation and local governments
  4. the Chapter II. Powers of the subjects providing legality in activity of local governments
  5. § 2. Transformation of an elective principle of bodies and officials of local government
  6. §3.4. Features of classification and legal regulation of internal state financial audit (control) over account obligations public authorities of subjects of the Russian Federation and territorial bodies of Federal exchequer
  7. 2.3. Public authorities of subjects of the Russian Federation in the organisation-legal mechanism of maintenance of constitutional laws and freedom of the person and the citizen
  8. § 2. A modern condition of differentiation of powers between public authority levels in local government sphere:
  9. powers of local governments on legality maintenance in municipal union
  10. CHAPTER 3. PROBLEMS of the LEGAL STATUS of EXECUTIVE POWERS of the GOVERNMENT of SUBJECTS of the Russian Federation