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§ 3. Public associations as subjects of a constitutional law.

The federal act from May, 19th, 1995 «About public associations» allocates seven forms of public associations, including associations (unions) (item 8 - 13) 1. Simultaneously with it article 51 of the specified federal act assumes creation possibility gosudarstvennoobshchestvennyh and the socially-state associations.

However these associations in the law are not called as independent organisation-legal forms.

G.N.Mitin considers, that such associations should have the independent organisation-legal form as the state cannot create public associations as forms of self-organising of citizens. But in the course of the state activity there is [106] necessity of creation of public organisations with the assistance of the state. From here the legislator has provided creation of the noncommercial organisations voluntary and under control to the state created at the initiative of citizens and the state and with the assistance of the state. The last, in the name of the bodies, can take part in work such объединений1. Meanwhile, it is represented to us, that state-public and socially-state associations are not that other, as forms of interaction of public associations with the state. A major principle of their organisation is the voluntariness principle. Both those, and others are quite entered in those seven organisation-legal forms of public associations which are defined by the federal act. The difference only that these public associations are under control to the state, can be transferred to them in using the state-owned property, they can be financed by the state directly, instead of through grantovuju support. In all the rest they have signs of public association of this or that organisation-legal form.

The state-public and socially-state organisations, as a rule, set as the purpose patriotic and voennopatrioticheskoe education of citizens, physical training and sports development, preparation of youth for service in ranks of the army, development of technical creativity, etc. These organisations are presented by sports and defensive societies, societies of rationalizers and young technicians, other associations.

The difference between state-public and obshchestvennogosudarstvennymi associations, in our opinion, consists in the one who became the initiator of creation of public association - the state or citizens. There can be and so, that a state, considering the special importance of activity of this or that public association [107]

Citizens, will take part in its work, will start to render from the budget to it financial, organizational, material and other support. Anyway, has ripened necessity of more accurate definition of a legal status of such associations by means of acceptance of the special federal act.

Thereupon it is separately necessary skazatob Public chamber of the Russian Federation and public chambers of subjects of the Russian Federation. It is easy to notice, that the specified public chambers are is state - public formations. The public chamber of Russia speaks on behalf a name of all civil society, and public chambers of subjects of the Russian Federation - on behalf of the population and public organisations of subjects of the Russian Federation. The initiative of their creation proceeded from the state.

Financing of public chambers is carried out at the expense of means of corresponding budgets. Formation of public chambers is carried out on an equal footing by the state bodies and public organisations. It specifies in state-public character of such formations.

Whether it is possible to consider public chambers public and the organisations or, on the contrary, the state bodies? In jurisprudence the opinion that they cannot be carried, neither to public organisations, nor to the state bodies as an overall objective of such formations is interaction of a society and public власти1 was expressed. It is represented to us, that it is necessary to agree with this position. As additional arguments in its substantiation it is possible to result that fact, that public chambers are not entered in one of the organisation-legal forms of public associations of citizens defined by the federal act, and absence of accurate differentiation in the legislation of public associations and is state - [108]

Public formations to lead to uncertainty of a legal status of public chambers., In our opinion, it is possible to consider these formations as legal bodies with the special status, significant state functions carrying out a number. Anyway, powers of public chambers specify in their state nature when their organisation-legal form is not defined.

Various forms of public associations are connected with their features. However there is also a general line which consolidates all public associations. According to V.V. Lysenko, the general consists that all public associations, being the form of realisation of fundamental laws and freedom, simultaneously represent itself as one of organizational forms демократии1. Agreeing basically with V.V. Lysenko's position, it is necessary to notice, that this line not unique, consolidating all forms of public associations. All of them are created on the basis of community of interests, ideas, the values, people professing by groups. All of them also are created for protection of those or other rights of citizens.

The legislation on public associations in the Russian Federation has appeared rather recently, in 1990. Till this time, in the conditions of one-party system existence at legislative level the organisation and activity of public associations was not regulated. In 1990 there were two laws of the USSR «About public

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Associations »from October, 9th, 1990 and« About trade unions, the rights

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And guarantees of their activity »from December, 10th, 1990.

In the law on public associations the concept of public association which was understood as the voluntary formation which has resulted [109 [110] [111] free wills of citizens, consolidated on the basis of community of interests for the first time has been formulated. Public associations had been recognised political parties, mass movements, trade unions, the female, veteran organisations, the organisations of invalids, the youth and children's organisations, scientific, technical, cultural - educational, fizkulturnosportivnye and other volunteer societies, the creative unions, zemljachestva, funds, associations and other associations of citizens.

Public associations were created and operated on the basis of voluntariness, equality of their members, self-management, legality and publicity. Participation or nonparticipation of the citizen in activity of public association could not form the basis for restriction of its rights and freedom. Intervention of the state bodies and officials in activity of public associations was not supposed. Public associations had the right to be consolidated on a voluntary basis in the unions of public associations. Registration of charters of public associations was carried out by the state bodies.

For realisation of the purposes and the problems defined in charters, program documents public associations had the right to extend freely the information on the purposes and activity, and in cases and an order, provided by the legislation, had also following rights:

Participated in formation of state governing bodies;

Carried out the legislative leadership;

Participated in development of decisions of state governing bodies;

Represented and protected legitimate interests of the members in the state and public bodies.

The law of the USSR has given for the first time classification of public associations: political parties, mass social movements, trade unions.

Parties expressed political will of the members. They put the primary goals participation in formation of state governing bodies, in power realisation through the representatives selected in Councils of People's Deputies.

The right to put forward candidates for People's Deputies was given to parties, to lead pre-election campaign, to make out groups of the supporters - deputies in corresponding Councils of People's Deputies.

Mass social movements could pursue political or other aims and not have the fixed membership.

Trade unions had the right to represent and protect interests of the members in the field of manufacture, is social - economic and cultural areas.

Political parties and trade unions have been obliged to have only the fixed individual membership.

The law of the USSR on trade unions has established, that the trade union is voluntary public

The organisation consolidating workers, connected by common interests on a sort of their activity, both in industrial, and in non-productive spheres, for protection of the labour and social and economic rights and interests svih members. Independence of trade unions in the activity from state bodies, economic bodies, political and other public organisations was fixed. Any intervention, capable to limit the right of trade unions was forbidden or

To prevent their realisation. Allied and republican associations of trade unions possessed the power to initiate legislation in the corresponding supreme bodies of the government of USSR, allied and autonomous republics, participated in working out of acts on work and is social - to economic questions.

Apparently, the legislator had been undertook successful enough attempts of classification of forms of public associations. However the specified allied laws did not contain accurate criteria of differentiation of this or that form of public association. Especially it concerns differentiations political and nepoliticheskih to their activity. In the specified laws the power to initiate legislation of public associations has been vaguely enough fixed. It has been given them the Constitution of the USSR in edition from December, 26th, 1990 Its article 114 has established, that the power to initiate legislation public organisations in the name of their all-union bodies and Academy of sciences of the USSR possess. The mechanism of realisation of this right should find the fastening in the given allied laws. However the legislator has not established such norms.

The modern Russian legislation on public associations began to develop in the nineties the XX-th centuries with acceptance in 1995 of the federal act «About public associations» 1. Its first edition established five forms of public associations: public organisation; social movement; public fund; a public institution; body of public amateur performance.

Public organisation the public association based on membership created on the basis of joint cooperation for protection of common interests and achievement of the authorised purposes of consolidated citizens admitted.

Social movement was consisting of participants and the mass public association not having membership pursuing social, political and other socially useful purposes, supported participants of social movement. [112]

The public fund was one of kinds of noncommercial funds and represented the public association not having membership which purpose consisted in formation of property on the basis of voluntary payments, other receipts not forbidden by the law and use of the given property on socially useful purposes.

Public institution the public association not having membership which are setting as the purpose rendering of a concrete type of service, participants equitable to interests and corresponding to the authorised purposes of the specified association admitted.

Body of public amateur performance was the public association not having membership the joint decision of the various social problems arising at citizens on a residence was which purpose, works or the studies, directed on satisfaction of requirements of an unlimited circle of persons, whose interests are connected with achievement of the authorised purposes and realisation of programs of body of public amateur performance in a place of its creation.

The political party as the independent form of public associations of citizens has been recognised by the amendment to the federal act «About political parties» from March, 12th, 2002 the Same amendment has been brought and in article 7 of the federal act from May, 19th, 1995 «About public associations». Till this time the political party was considered only as a public organisation version. However, till this time on July, 19th, 1998 in the law on public associations changes in a part concerning term introductions «political public association» have been made. In 2002 in connection with federal act acceptance «About political parties» term «political public association» has been withdrawn from the legislation.

From May, 25th, 2015 «About modification of a part of 1 Civil code of the Russian Federation and of the federal act« About political parties »the specified amendment to federal act article 3« About political parties »has been formulated by the federal act as follows:« the Political party is a public organisation kind as organisation-legal form of legal bodies ». According to a part of 3 articles 50 GK the Russian Federation the legal bodies who are the noncommercial organisations, can be created in organisation-legal forms of public organisations which concern, including political parties and the trade unions created as legal bodies (the trade-union organisations), bodies of public amateur performance, territorial public self-management.

Necessity of entering of such amendments speaks presence of features of political parties as public organisations. They can be deduced from the current legislation. So the political party, unlike other public organisations, necessarily should have individual membership. Citizens of the Russian Federation can be party members only. Foreigners, stateless persons here are excluded, while they can enter other organisations. Parties are created only at federal level. Other public organisations on territory can be federal, regional, inter-regional, local (municipal). Party as the public organisation, should be without fail registered and get the corporate franchise. Other public organisations can not be registered. In this case they will not be legal bodies. And, at last, the citizen of the Russian Federation can be a member only one political party. This rule does not extend on public associations of other organisation-legal forms.

The listed features of political parties as public organisations have given the chance to the legislator to allocate them in the form of the separate organisation-legal form. At the same time political party allocation as independent organisation-legal form of public associations can give the ambiguous answer to a question on, whether political parties can enter into the unions (associations) of public associations. Federal act article 13 «About public associations» establishes, that public associations irrespective of their organisation-legal form have the right to create the unions (associations) of public associations on the basis of articles of incorporation and (or) the charters accepted by the unions (associations), forming new public associations. The legal capacity of the unions (associations) of public associations as legal bodies arises from the moment of their state registration. Hence, this rule should extend and on political parties. However the federal act «About political parties» supposes possibility of the introduction of political parties in the international unions (associations). As to the unions with other political parties and other public associations article 26 of the specified federal act allows to do it, but only without formation of the legal person. Hence, the legal personality of political parties concerning the introduction into associations (unions) is limited by the legislator.

Here the legal collision between two federal acts is available. In this case the legal leadership under the general rule belongs to the law which is accepted by the last, namely to the law on political parties. Besides the specified federal act, unlike the law on public associations, regulates narrower sphere of public relations, is specialised and concerns not all public associations, but only their separate organizatsionnopravovoj forms - to political party.

Requirements of the law on public associations about the state registration of the unions (associations) is not imperative as according to article 18 of the specified federal act the decision on creation of public association, on the statement of its charter and on formation supervising and kontrolno-auditing bodies are accepted at congress (conference) or general meeting. From the moment of acceptance of the specified decisions public association is considered created: carries out the authorised activity, gets the rights, except for corporate franchises. The legal capacity of public association as legal person arises from the moment of the state registration of the given association. Therefore not registered unions, associations have all rights of public association, except corporate franchises.

The told allows to draw a conclusion that the legal status of public associations depends on its organisation-legal form and from presence of the status of the legal person.

Activity of public associations in the Russian Federation gets various forms. Quite often they remain insufficiently legislatively settled. As an example it is possible to result activity of ecological public organisations.

Public organisations which set as the purpose preservation of the environment, have the right to carry out public examination in sphere of ecology which is spent on the basis of the federal act from November, 23rd, 1995 «About ecological examination» 1.

Among principles of ecological examination the specified federal act (article 3) has established a principle of participation of public associations and the public opinion account. Law article 9 has carried the organisation of public discussions, carrying out of interrogations, referenda to powers of local governments among the population about planned economic and other activity which comes under to ecological examination.

Public ecological examination according to law article 20 is spent at the initiative of citizens and public associations, and also at the initiative of municipal bodies those public [113] organisations, authorised which directions of activity, environment protection and which are officially registered is. It can be carried out before carrying out of the state ecological examinations or simultaneously with it.

Article 23 of the law demands obligatory state registration of the statement of public organisation (organisations) about carrying out of public ecological examination.

Article 25 of the law demands, that the conclusion of public ecological examination has been directed federal enforcement authority or public authority of the subject of the Russian Federation, carrying out the state ecological examination, to the customer of the documentation, bodies of municipal authority and other interested persons.

Apparently, this federal act has not fixed the right of public associations to address in courts of justice following the results of public film logic examination. But, addressing in these bodies, public associations exceed the powers established by the federal act.

At level of subjects of the Russian Federation public coordination bodies for work of public associations can be created. V.V. Komarova specifies in work of the Public ecological council at the Republic Burjatija1 Government.

Insufficient legislative uregulirovannost activity of public organisations that they quite often falls outside the limits their powers influences. Here as an example activity of the public associations which are engaged in protection of the rights of consumers can serve. Plenum has paid attention to them pravoprimenitelnuju to practice Supreme [114]

Vessels of the Russian Federation, accepted the decision from June, 28th, 2012 «About consideration by vessels of civil cases on disputes on protection of the rights of consumers» 1.

Occasion to removal of such decision various judiciary practice, but also modification of federal act article 45 «About protection of the rights of consumers» as the federal act from July, 18th, 2011 has served not only developed in different subjects of the Russian Federation, according to which at public control realisation public associations of consumers (their association, the unions) have not the right to demand from manufacturers (executors, the sellers, the authorised organisations or

The authorised individual businessmen, importers) representation of documents (performance of actions), a duty

Which representation (performance) at the customer's request it is not statutory [115 [116].

The explanatory note to the project of the specified Law has noticed, that separate public organisations on protection of the rights of consumers as a unique and priority direction of the activity define control functions, organizuja checks of managing subjects on the questions which are not concerning their competence, misinterpreting thus the principles of the public (not state) control taken as a principle of article 45 of the Law of the Russian Federation "About protection of the rights of consumers. As a result« in the consumer market there was a steady illegal practice of assignment and realisation by many public associations of consumers of imperious powers of the federal public authorities which are carrying out

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The control and supervision in the field of protection of the rights of consumers ".

However and after modification of article 45 of the law on protection of the rights of consumers of separate subjects of the Russian Federation public associations continued to submit numerous legal actions to protection of the rights of an uncertain circle of persons, being based on public control certificates. One courts refused in satisfaction of such claims as considered, that public control over observance of the rights of consumers has the right to carry out public associations only and by its results should address not in court, and in body of the state control and local government which are obliged to inspect the facts stated by public association.

Other courts, on the contrary, satisfied claims of public associations, referring that taking formal note of check by public organisation is the form of public control of citizens behind observance by the legal body of requirements of the law on protection of the rights of consumers. As article 46 of the federal act from February, 7th, 1992 «About protection of the rights of consumers» has established a rule according to which body of the state supervision, (their associations, the unions) have the right to make local governments, public associations of consumers claims in courts about the termination of wrongful acts of the manufacturer (the executor, the seller, the authorised organisation or the authorised individual businessman, the importer) concerning an uncertain circle потребителей1.

However, submitting claims for protection of the rights of an uncertain circle of persons in court, public associations could not count on indemnification of a legal cost as owing to article 38 GPK the Russian Federations were not claimants on business in connection with absence of material interest, and were only remedial claimants. Such public associations are only representatives of citizens.

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Plenum of the Supreme Court of the Russian Federation has come to conclusion, that the certificate of check of activity of the respondent presented by public association is not the absolute proof of infringement of the rights of an uncertain circle of consumers. Therefore supervising and supervising state bodies owing to article 40 of the law about protection of the rights of consumers should make explanations concerning application of laws and other standard legal acts of the Russian Federations regulating the relations in the field of protection of the rights of consumers. These explanations, not creating new rules of law, carry out specification and a concrete definition of operating legal acts with a view of their realisation by which should be guided both courts, and public organisations.

Concerning public associations of citizens it is necessary to pay attention to one, a question discussed in jurisprudence on possibility of the introduction into structure of public association of other public associations. S.A.Avakjan considers, that it is inexpedient, as such public association supposing collective membership of legal bodies, ceases to be association of physical persons and to reflect them интересы1. Argument in favour of it it is possible to result and that fact, that accepting in the structure of collective members - other public associations, substantially change those initial purposes and problems of public association which have involved earlier in its structure of physical persons. Such public organisation this step actually would break a constitutional law of citizens on association.

At all importance of legislative regulation of the organisation and activity of public associations and realisation of the right of citizens on association the basic place in this process in the Russian Federation and in the world countries nevertheless belongs to constitutions. In them the various rules of law, concerning the specified sphere contain. So, [117]

For example, the Constitution of Ireland fixes the right of citizens to formation of associations and the unions. Thus state laws can establish in public interests the control over realisation of the granted right and during its realisation should not enter discrimination on political, religious or class основаниям1.

The constitution of Belgium also provides the right of citizens to association, underlining, that the granted right cannot be subjected

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To any precautionary measure. Actually the Constitution of Belgium does not put any restrictions in realisation of the right to association.

Unlike the Constitution of Belgium the Constitution of Kingdom of the Netherlands, fixing the right to creation of public associations, contains instructions on possibility of its restriction by the parliament Certificate in

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Interests of a public order.

Apparently, in resulted above the constitutional norms legal regulation of the right of citizens on association is fixed in the general view, and, in one constitutions the instructions on restriction of this right contain, in others such instructions are absent.

At the same time there is a group of constitutions in which the right to association is in detail enough regulated. So according to the Organic law of Germany all Germans have the right to create the unions and societies. The right to create association for protection and improvement of working conditions and economic conditions is guaranteed to everyone and representatives of all trades. Agreements with a view of restriction of this right or difficulty of its realisation are void, and directed on it

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Measures are illegal. [118 [119] [120] [121]

Article 21 of the Organic law of Germany is devoted political parties as to public associations. According to it parties promote formation of political will of the people. They can freely be formed. Their internal organisation should correspond to democratic principles. They should render the public account on sources and an expenditure of the means, and also on the property. Parties which on the purposes or actions of the supporters aspire to cause a damage to bases of a free democratic system or to eliminate it or to threaten existence of Federal Republic G ermanii, antikonstitutsionny. The question on illegality solves Federal constitutional court.

Hence, the Organic law of Germany contains legal regulation both public associations as a whole, and political parties as one of their forms.

According to article 12 of the Constitution of Greece Greeks have the right to create the unions and the societies which do not have for an object extraction of profit, observing thus laws which cannot cause realisation of this right by preliminary reception of the permission. The society cannot be dismissed for law-breaking or essential position of the charter differently as under the decree.

Simultaneously with it the specified article of the Constitution of Greece has established for civil servants possibility of restriction by the law of their right to association. Restriction of this right can be rasprostranenno and on employees of local governments, or other legal bodies of the public law, or state предприятий1.

From the resulted text it is possible to conclude, that Constitution G retsii not only declared the right to association, but also has established legal [122]

Reference points for the current legislation, regulating the specified sphere. Among them: the unions and societies should not have for an object profit extraction, they obrazovyvajutsja in a notifying order, can be dismissed only on the basis of a judgement, on state and municipal serving by the law restrictions in their right to associations can be established.

The constitutional law on association is regulated by two articles of Constitution Испании1. Constitution article 22 recognises the right of citizens to association. Dissolution or stay of activity of associations are possible only owing to the proved judgement. Registration of associations it is carried out only in the advertising purposes.

Article 28 of the Constitution of Spain proclaims the right to free association in trade unions. The law can limit this right or provide an exception in its realisation concerning Armed forces, and also the military or other departments subordinated to military discipline. The law defines also features in realisation of this right concerning civil servants. Freedom of trade-union activity includes the right to create trade unions and to enter them, no less than the right of trade unions to be consolidated in confederation both to create the international trade unions and to join them. Nobody can be forced to the introduction into a trade union.

Hence, the Constitution of Spain, also as well as the Constitution of Greece, recognised the right to association with an establishment of corresponding restrictions for creation of associations, has fixed the legal process of the termination of their activity, has specified in possibility of restriction or an exception the law of the right of civil servants and military men on association in trade unions. [123]

Similar rules of law are contained also by the Constitution of the Italian Republic. Its article 18 fixes, that citizens have the right freely, without the special permission, to be consolidated in the organisation with a view of, not forbidden private persons by the criminal law. Secret societies and such associations which at least indirectly pursue political ends by means of the organisations of military character are forbidden.

Article 39 of the Constitution of Italy establishes bases of the organisation and activity of trade unions. According to it the organisation of trade unions is free. It any obligations, except their registration in local or central establishments according to rules, statutory cannot be made. A condition of registration of trade unions is fastening in their charters of rules of the internal organisation which are based on democratic principles. The registered trade unions have corporate franchises. Being a representative with a poll proportional to number of the members, they can conclude collective employment contracts, binding for all persons belonging to those categories of workers whom these concern dogovory.

Apparently, at all similarity of the resulted rules of law with the Constitution of Spain, the Constitution of Italy in addition concerning trade unions has established necessity of their registration for the purpose of corporate franchise reception, has established requirements to charters of the trade-union organisations and has defined procedure of the conclusion of collective employment contracts.

Detailed enough regulation of the right to association is presented to Constitutions of the Portuguese Republic. In it citizens have the right freely and without any permission to found association if these associations do not support violence and their purposes do not contradict the criminal law. Associations are free in achievement of the purposes without intervention of public authorities and cannot

To be dismissed the state, and their activity cannot be suspended differently as in cases, statutory, and on the basis of a judgement; nobody can be forced to become a member of any association or to remain its member; the armed associations, no less than the associations of military type militarised or kvazivoennye, and also the organisations preaching fascist идеологию1 are forbidden.

Apparently, the Constitution of the Portuguese Republic concerning the right of citizens to association and public associations has fixed following norms-principles: the right of citizens to association in public organisations; free, without compulsion membership in public associations; notifying character of establishment of public associations; an interdiction for activity of public associations in case of its contradiction to the criminal law; an interdiction of the militarised, public associations professing fascist ideology; the legal process of stay of activity of public association.

The carried out analysis of fastening of the right of citizens on association in constitutions of some countries of the world shows, that, first, in one constitutions the right of citizens to association only is mentioned without an establishment of the constitutional principles of its realisation; secondly, in those constitutions where the specified right of citizens the basic forms of associations of citizens are in detail enough regulated, established: the unions, associations, associations, societies; thirdly, the principle of freedom of participation of citizens in public associations and a notifying order of their opening is established; fourthly, the principle of non-interference of the state in activity of public associations is fixed; fifthly, the bases of restriction of the right of citizens on association are listed.

Thus, various forms of public associations are connected with their features. The modern Russian legislation fixes [124]

Seven forms of public associations: public organisation, social movement, public fund; a public institution; body of public amateur performance, political party, the unions (associations) of public associations. The legal status of public association depends on its organisation-legal form and from presence of the status of the legal person.

Necessity of rather recent allocation of political party as the independent organisation-legal form of public association speaks its features which can be deduced from the operating Russian legislation: the political party necessarily should have individual membership; citizens of the Russian Federation can be party members only; parties are created only at federal level; the party should be without fail registered and get corporate franchises; the citizen of the Russian Federation can be a member only one political party.

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A source: STARKIN Nikita Jurevich. THE CONSTITUTIONAL LAW OF CITIZENS ON ASSOCIATION AND PROBLEMS OF ITS REALIZATION IN THE RUSSIAN FEDERATION. THE DISSERTATION On competition of a scientific degree of the master of laws. Penza 2018. 2018

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