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§ 1. Structure and internal structure of local electoral commissions

The major element of a konstitutsionno-legal status of joint subjects of legal relations is their structure and internal structure [65]. Without definition of the given components in the constitution, the law or the subordinate legislation standard legal act about the status of the corresponding person, it is difficult to present its any functioning directed on realisation of the established competence [66].

So, the State Duma consists of deputies in number of 450 national representatives, the Federation Council includes members on two representatives from each subject of Federation, members of the Government of the Russian Federation are the chairman, its assistants and federal ministers. Similarly the legislator defines structure of legislative (representative) bodies of subjects of the Russian Federation, representative bodies of municipal unions, the higher executive powers of subjects of the Russian Federation (if they are joint) etc. In this connection to the legislator it is assigned publichnopravovaja a duty of regulation of structure and internal structure of electoral commissions, including divisionals [67].

The term "structure" has the plural maintenance. According to S.I.Ozhegova's explanatory dictionary, the structure in a context analyzed by us is understood as set of people or the subjects forming whole (for example, occurrence of persons in presidium structure). In jurisprudence the term "structure" is used not only concerning a konstitutsionno-legal status of bodies and the organisations. The structure of the Russian Federation is understood as set of subjects of Federation entering into it - republics, edges, areas, cities federal

Value and independent formations. Under offence structure - object, the subject, the objective and subjective parties. It is accepted to speak about structures of transactions, documents, claims also; about element structure, subject structure, personal structure, a social composition, the set of facts (in the legal regulation mechanism) etc. With reference to the status of the collegiate bodies the category "structure" characterises set of persons, its forming [68].

Other konstitutsionno-legal category is closely connected with the term "structure" - «internal structure» [69] («internal organizational structure» [70], «the internal organisation» [71]). For difficult subjects on the internal structure of the constitutional relations the concept of internal structure is wider in comparison with the term "structure". So, the State Duma consists of 450 deputies; its internal structure includes set of internal bodies (Duma council, committees and the commissions, fractions and deputy groups), officials (the chairman of chamber, its assistants, chairmen of committees, the commissions, fractions, deputy groups, their assistants), the mechanism of their interaction etc. In more simple on an internal structure subjects of the constitutional relations of concept "structure" and «internal structure» are quite often used in identical value. However and in this case it is necessary to consider, that concept «the internal structure» covers in bolshej to a measure dynamics of public relations, while the term "structure" - mainly their statics, i.e.

an actual condition for the certain moment of time.

The problematics of structure and the internal organisation of electoral commissions includes, at least, following questions: what numerical structure of the commission; whether members of the commission possess the equal status or their status is various; whether there are as a part of the commission officials or internal bodies with the competence; whether the auxiliary device of the state or municipal employees is created in commission structure. As a rule, higher electoral commissions have more developed internal structure, and the subordinate commissions - smaller on number and a structural saturation.

The quantitative structure of electoral commissions should be optimum from the point of view of several, frequently - the mutually exclusive purposes of legal regulation. The purpose of maintenance of publicity, a transparency, independence, impartiality of electoral commissions dictates necessity of inclusion for their structure as it is possible bolshego numbers of members [72]. On the other hand - excessively high number of members of electoral commissions complicates the organisation of their work, reduces efficiency of their activity, generates additional expenses at the expense of means of the state and municipal budgets [73].

With reference to local electoral commissions the great value has also number of the voters living in territory of corresponding sites; functional duties of members of the commission on the organisation of process of voting, vote tabulation and definition of results of will of citizens. At insufficient quantity of members of local electoral commissions there can be a situation of turns of voters, be tightened on time process of primary calculation of ballots, become complicated a voting procedure by means of a portable selective box. The kind of spent elections and quantity of the combined elections matters. At elections to a representative body it is required bolshee quantity of members of the local commission, than at the organisation of elections of officers. At combination of several elections (especially - referenda) requirements to quantitative structure of members of local electoral commissions also increase [74].

The stated circumstances allow to formulate a conclusion about necessity of optional legal regulation of quantitative structure of local electoral commissions. The body authorised on definition of quantity of members of local electoral commissions, should have rather wide diskretsiju to have possibility to vary numerical structure of the commissions depending on the above-named circumstances. According to norms of the Federal act «About the basic guarantees...» (Item 27 item 3), number of members of the local commission is in dependence from quantity of voters on polling district, however is established by the law not "firm" figure, and a range of quantity of members (to 1001 voters - from 3 to 9; from 1001 to 2001 voters - from 7 to 12; over 2001 voters - from 7 to 16).

The given legislative decision as a whole corresponds to methodology of optional legal regulation. However it is possible to subject it to criticism on following bases. First, it is difficult to explain logic of the legislator at whom the "bottom" threshold of quantity of members of the local commission is identical at number of voters from 1001 to 2001 and from above 2001 (in both cases - 7 members). Secondly, at combination of several elections and referenda, use of difficult electoral systems, - it can be demanded bolshee number of members of the local commission, than 9, 12 and 16 accordingly. Thirdly, it is necessary to consider, that local electoral commissions have the fixed term of appointment. It means, that if necessary the body authorised on appointment of members of the local commissions, is deprived possibility in addition to enter into structure of the commissions of new members or, on the contrary, to deduce them from commission structure. Fixing a term of appointment of the local commissions, the legislator thereby inevitably enters dependence of quantity of members of the local commission only from number of voters, excepting other factors (combination of elections, complexity of an applied electoral system).

Besides, it is necessary to consider mobility of number of voters in connection with migratory processes, achievement by minors of selective age essential fluctuations of number of voters about threshold values (less than 1001 and more 1001, less than 2001 and more 2001) during a term of appointment of the local commission etc. are As a result possible. Under such circumstances number of members of the local commissions can enter into the contradiction with law requirements (despite strict observance of the law at the moment of formation of personal structure of the local commission). And it is the basis for a recognition judicially structure of the local commission illegal (hence, there can be doubts and in legality of elections as a whole).

In connection with the above-stated, we believe expedient item 3 of item 27 of the analyzed Federal act to state in the following edition:

«3. The number of members of the local commission with the right to vote is defined forming by its territorial commission or the official depending on number of voters, the participants of a referendum registered in territory of corresponding polling district, a referendum site, as a rule, in following limits:

To 1001 voters - 3 - 9 members of the local commission;

From 1001 to 2001 voters - 6-12 members of the local commission;

More than 2000 voters - 9-15 members of the local commission ».

Further the structure and internal structure of local electoral commissions are defined by a parity of equality and an inequality of their members. The legislator repeatedly mentions equality of members of electoral commissions of all levels, however in electoral commissions the institute of officials (the chairman, the vice-president, the secretary of the commission) is observed, that testifies to an actual inequality of their status [75]. On the one hand, officials of electoral commissions as members of the commissions have the equal rights and perform equal duties along with the rights and duties of other members of the commissions. But with another - in itself allocation by the legislator of institute of officials testifies to deviation from a principle of equality. Moreover, the legislator assigns the additional rights and duties which are not present at other members of the corresponding commission on officials.

The given problem is characteristic not only for the status of electoral commissions. Practically in all other cases when we observe legal regulation of the organisation and activity of joint subjects of the public law, the legislator varies positions about equality of the status of members of the collegiate body and simultaneous allocation of the additional rights and duties of corresponding officials [76]. So, the Federation Council, the State Duma, a legislature of subjects of the Russian Federation and representative bodies of municipal unions are headed, as a rule, by their chairmen. The exception is constituted by cases when according to the Federal act «About the general principles of the organisation of local government in the Russian Federation» the actual management of a representative body from the head of the municipal union selected by means of direct or indirect elections is supposed.

Comparing the organisation of representative bodies and the executive authority collegiate bodies, it is possible to note essential distinctions from the point of view of the status of corresponding officials. If in system of national representation officials are «the first among equal», they do not have special powers of imperious character in the executive authority heads of joint structures possess the right of the actual decisions involving legal effects. So, the chairman of the Government of the Russian Federation with konstitutsionnopravovoj and the is administrative-legal points of view cannot be put in one number with its assistants and the federal ministers who are a part of the Government of the Russian Federation. In this sense the actual status of the chairman of the Government of the Russian Federation above, than a legal status of chairmen of chambers of Federal assembly in comparison with the status of deputies and the members who are a part of given chambers. Similar reasons extend on the organisation legislative and the executive authority in subjects of the Russian Federation if by the constitution (charter) or the law of the subject of Federation it is established, that the higher executive office is joint, makes of the decision by voting etc. In local government system local administrations, as a rule, are individual subjects of the constitutional legal relations.

In modern Russia it is observed, if it is possible so to be expressed, a little exaggerated approach to understanding and institutsionalizatsii the actual status of heads of the collegiate bodies. It the Russian practice considerably differs from the foreign. In many foreign parliaments and other bodies of national representation, as a rule, speakers carry out rather limited functions and often enough vary, including - during term of the state legislature [77]. The Russian practice prefers "stabler" model [78]. Chairmen of the collegiate bodies are usually selected at the first (constituent) session of corresponding body after its formation, for all term of appointment. The preschedule response of these officials is supposed, as a rule, on extraordinary circumstances. As a result the collegiate body is put in certain dependence on will, methods, principles and approaches to public activity of the corresponding head of the collegiate body [79]. From the formal legal point of view the collegiate bodies are free in the choice at acceptance of those or other imperious decisions. However actually they operate in coordination with the chairman of the collegiate body [80] who also adjusts the position with the political management, interested power structures, etc.

The given set of circumstances extends on structure and the internal organisation of electoral commissions. Chairmen, assistants to chairmen and secretaries of electoral commissions actually supervise over selective process while according to legislation requirements the given management is assigned to joint electoral commissions on the structure which should operate independently, independently, impartially and unbiassedly, especially - if it concerns any "instructions" from officials of the commissions, especially - private installations, nepravlenyh on support of the concrete candidate, political party, etc.

In modern publicism, political science and journalism this phenomenon often name «an administrative resource» [81]. We will underline, that the term «an administrative resource» is not strictly legal or, especially, legislatively established [82]. Moreover, in legal effect (if to refuse the treatment offered by publicism, political science and journalism), the given term has also a "positive" orientation: it is possible to understand system of co-operating elements as an administrative resource in the mechanism of the state and municipal management, directed on the decision of the Russian Federations established by the Constitution and the law of problems. But the term «an administrative resource» to such degree was included into a modern political lexicon of Russia in a negative context, that it is difficult for using in any other sense [83].

The essence of "an administrative resource» consists in unconstitutional and illegal intervention of executive organs in process of free, democratic elections [84] that assumes creation of unreasonable preferences to one candidates or parties for a counterbalance another, refusal stimulation in registration of candidates or lists of candidates on the far-fetched bases, cancellation of already taken place registration of candidates, excitation of litigations against political opponents, active use of mass-media under control to the state with a view of restriction of a selective competition [85], etc. All specified kinds of illegal activity can be carried out by executive organs not directly (it is not included into their competence), but indirectly, through influence on activity of electoral commissions. And to make it by means of stimulation of behaviour of officials of electoral commissions is much easier, than to influence their "ordinary" members. The last can appear "pig-headed", appeal against illegal intervention in the authorised bodies, including degrees of jurisdiction, inform the facts undesirable to distribution etc.

The mentioned forms of "interaction" of executive organs and officials of electoral commissions in the course of election campaign have not simply illegal, unconstitutional nature. In most cases they come within the purview of the criminal legislation (the item

141-142 UK the Russian Federation). Especially it concerns activity of local electoral commissions, from which party such wrongful acts, as hindrance to realisation of suffrages (by means of unreasonable restrictions of the right of voting, delivery of bulletins of not established form), falsification of selective documents and actions completely are not excluded. In ch. 3 items 141 UK the Russian Federation are specially reserved such corpus delicti as «intervention with use official or the official position in realisation by electoral commission» its powers on purpose to affect its decisions, namely «the requirement or the instructions of the official concerning registration of candidates, lists of candidates, vote tabulation of voters» and on other questions which are within the exclusive competence of electoral commission.

In the criminal legislation the most widespread forms of application of "an administrative resource», leading falsifications of results of voting which include are accurately allocated: inclusion of not considered bulletins in number of the bulletins used at voting; representation of obviously incorrect data on voters; obviously wrong drawing up of electoral registers expressed in inclusion in them of persons, not possessing the active suffrage or invented persons; replacement of the valid bulletins with marks of voters or the damage of bulletins leading to impossibility to define will of voters; illegal destruction of bulletins; obviously wrong vote tabulation; signing by members of electoral commission of the report on results of voting before vote tabulation or an establishment of results of voting; obviously incorrect (mismatching the valid results of voting) executing a process-verbal about voting results; Entering into the report on results of voting of changes after its filling; obviously wrong establishment of results of voting or definition of election returns [86].

Thus, the criminal legislation rather reliably protects a society from any actions of executive organs and their illegal intervention in activity of electoral commissions [87]. Anyway, the most typical forms of socially dangerous forms of application of "an administrative resource» are not simply revealed by jurisprudence: they have found accurate expression at level of the criminal code of the country (in earlier operating editions of the criminal law, i.e. to the law on amendment in UK the Russian Federations from 04.07.2003 № 94-FZ, general words about illegality and criminal punishability of "hindrance" to realisation of suffrages and "falsification" of results of voting and elections contained only) [88].

Despite the given circumstances, it is impossible to exclude latentnost similar criminal actions [89]. To avoid it, as the important stimulating factor development of equality of members of local electoral commissions and the greatest possible restriction of a role of their officials can serve. Functions of the chairman of electoral commission, for example, can be assigned to members of the commission serially on the basis of a toss-up, remaining during one election campaign. Preside in sessions of electoral commissions can not only chairmen of the commissions, but also serially members of the commissions. Till now in the legislation intervention of officials of electoral commissions in the competence of other members of the commissions, rendering on them of illegal pressure etc. is not criminalised Criminalisations on the basis of the federal act about modification of the criminal code № 94-FZ came under from 04.07.2003 only aforementioned actions from executive organs "from the outside" while the criminal legislation, as a matter of fact, has not forbidden the same actions with storo -

ny chairmen, assistants to chairmen and secretaries of electoral commissions concerning other members of the commissions.

At the same time, the resulted judgements can be subjected criticism from the point of view of managerial process by election campaign [90]. To provide observance of the legislation on elections (in modern Russia - rather difficult, volume, containing in various sources, including the legislation of subjects of the Russian Federation and standard legal acts of local governments), certain qualification is required. Similar qualification concerning officials of electoral commissions to provide easier, than kasaemo all other members of electoral commissions. As a rule, in intervals between election campaigns the Central electoral commission of the Russian Federation and electoral commissions of subjects of the Russian Federation hold training seminars, acquaint officials of territorial, district and local electoral commissions with changes in the legislation, developed pravoprimenitelnoj practice, check their knowledge and practical experience [91]. To guarantee the same quality of preparation of all other members of the electoral commissions which are not their officials, it is rather inconvenient from the organizational point of view and will entail additional expenses at the expense of means of corresponding budgets.

Besides, individual legal responsibility of officials of electoral commissions shows much bigger efficiency, than responsibility of the collegiate bodies [92]. The chairman of local electoral commission bears personal, personal responsibility for strict and exact observance of norms of the selective legislation in the course of the organisation of voting, vote tabulation of voters and definition of result of their will. If duties of the chairman of the commission are serially assigned to other members, there can be additional complexities with quality of the organisation of public elections.

However these objections, in our opinion, can be eliminated by means of introduction in structure of local electoral commissions as the high-grade participant without the right of voting of the professional lawyers representing the state interests. Taking into account modern structure and public authority system, putting on of similar powers on organs of the Prosecutor's Office is the most preferable. If as a part of each local electoral commission with the deliberative vote right there would be one public prosecutor's worker who has direct submission on a higher line up to G eneralnogo the public prosecutor of the Russian Federation, legality degree in activity of the local commissions could be lifted on higher qualitative level. Public prosecutor's workers, first, have sufficient number to provide scope of all without an exception of the local commissions at carrying out of federal, regional and municipal elections; In - the second, on them the law assigns function of supervision of legislation observance (activity of electoral commissions already podnadzorna to Office of Public Prosecutor owing to operating rules of law); thirdly, the Office of Public Prosecutor substantially is not subject to "regionalism" in the sense that it has the federal status and vertically integrated structure.

Let's notice, that the modern selective legislation not simply avoids similar model of legal regulation of public relations; moreover, it legally forbids membership of public prosecutor's workers as a part of electoral commissions both with the right solving, and with the deliberative vote right (subitem "e" item 1 of item 29 of the Federal act «About the basic guarantees...»). It, ostensibly, provides independence of electoral commissions. Certainly, the given decision of the legislator does not deprive Office of Public Prosecutor of supervising functions [93]. But these functions are carried out selectively, more often - in forms of planned kontrolno-supervising actions or public prosecutor's reaction to references of interested persons (basically - on complaints of citizens) [94].

But the operative, continuous and current control of Office of Public Prosecutor over direct actions of local electoral commission at all its stages of work in ballot day - the effective remedy of maintenance of legality and the law and order, than realisation by Office of Public Prosecutor of its supervising functions in available procedure is ready more. It is represented, that the measure offered by us would allow to achieve bolshego trust of a society to an electoral system, "transparency" of selective process, finally - would guarantee high-grade realisation of the constitutional norm that the carrier of the sovereignty and a unique source of the power in Russia are its multinational people (item 3 of the Constitution of the Russian Federation).

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A source: RYKOVA Larissa Valerevna. LOCAL ELECTORAL COMMISSIONS In the RUSSIAN FEDERATION: KONSTITUTSIONNO-LEGAL GUARANTEES of the ORGANIZATION And FUNCTIONING. D And With With E R T And TS And I on competition of a scientific degree of the master of laws. An eagle - 2017. 2017

More on topic § 1. Structure and internal structure of local electoral commissions:

  1. § 2. An order of formation of structure of local electoral commissions
  2. concept and structure of the competence of electoral commissions of municipal unions, guarantees of their activity
  3. concept and structure of a legal status of electoral commissions of municipal unions
  4. § 2. The Konstitutsionno-legal status of local electoral commissions
  5. § 3. Principles of activity of local electoral commissions
  6. electoral commissions of municipal unions in system of electoral commissions
  7. § 3. Rotation and the preschedule termination of powers of local electoral commissions
  8. § 4. The appeal of decisions and actions of local electoral commissions in system of konstitutsionno-legal guarantees of their functioning
  9. the Chapter II. KONSTITUTSIONNO-LEGAL GUARANTEES of the ORGANIZATION of LOCAL ELECTORAL COMMISSIONS
  10. the Chapter III. KONSTITUTSIONNO-LEGALGUARANTEES of FUNCTIONING of LOCAL ELECTORAL COMMISSIONS