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2EMERGENCE, EVOLUTION AND DEVELOPMENT OF PEOPLE'S CONSTITUTIONAL RIGHT TO APPEAL TO PUBLIC AUTHORITIES IN RUSSIA
The author made an attempt to analyze the stages of the emergence, formation and development of the right to appeal in Russia, which allowed the following periodization. Stage I (end of the 15th century - the 17th century) - the institution of conversion under the estate-representative monarchy. Stage II (XVII century, XIX century) - the active development of the institution of appeals, the beginning of which is associated with the period of absolute monarchy (extensive legislative base; bureaucratization of the process of appeals. Stage III (1905 - 1917) - the institution of appeals during the dualistic monarchy (the appearance of orders from voters to representatives in the State Duma; the right to appeal to all classes; an increase in the number of appeals; taking into account the appeals of citizens when making important state decisions).Stage IV (1918 - 1991), the institution of appeals at the Soviet stage of development of the state (work with citizens' appeals was characterized by the collection of various information from citizens, control of all government bodies and should contribute to the construction of a new Soviet state; the concept of "right to appeal" appeared) . Stage V (from 1991 to present) the institute of appeals of modern Russia (the formation of the institution of appeals on the basis of the Constitution of the Russian Federation, federal laws and by-laws).
Keywords
government, public authorities, appeals
AUTHOR
Nikolay G. Maltsev
post graduate of the Chair of Constitutional and Municipal Law, Central Russian Institute of Management, Branch of the Russian Presidential Academy of National Economy and Public Administration, Oryol 5A, Victory Blvd, Oryol, 302028, Russia
1. Introduction
The constitutional goal of public government development in the Russian Federation is currently establishment of a democratic state of law. Traditionally, a state is deemed to be democratic if the people are the source of power and the basic human and civil rights and freedoms are the supreme value and determine the activities of public authorities.
The right to appeal to public authorities and local government bodies as stipulated under Article 33 of the Constitution of the Russian Federation is of utmost importance in the system of basic human rights and freedoms. This is due to the fact that the aforesaid right is, on the one hand, a way to inform the government of people's needs and interests and a way to participate in state affairs management and, on the other hand, a means to protect the human and civil rights and freedoms.
2. Materials and Methods
Based on classical methodology used to resolve issues of emergence, evolution and development of people's constitutional right to appeal to public authorities in Russia,
the author addressed the following objectives:
1) definition of modernization trends in understanding the notion of the „right to appeal to public authorities";
2) to study the formation and development of the constitutional right of citizens to appeal to public authorities in Russia.
3. Results
When examining the issues of exercising the right of appeal to public authorities, we should first define the notion of public authority. The possibility of using the notion under examination in relation to bodies people appeal to is determined by the fact that the said bodies are public as they possess public authority and ensure interests of the society in general, its individual social strata and groups. As A. Kashkarov justly noted, the public authority system is formed by all branches of the government as well as representative and executive branches of the local government [4]. So public authorities are government and local government bodies whose task is to represent people's interests. The public law nature of government bodies is revealed by the fact that regulations prescribe imperative options for people's and other subjects' behavior in certain public law matters.
Analysis of emergence of people's right to appeal to public authorities and its development at different historical stages will enable to fully demonstrate the essence of this legal phenomenon. The right of appeal is closely related to state formation [8] The first form of appeal were popular assemblies (veche) where residents of certain territories resolved the most important public issues. The rule of princes and their representatives (posadnik) was not quite independent as resolutions were made together with the veche and elected leaders. The prince the veche elected received written instructions which were a kind of contract with the prince and if the prince failed to abide by it, the veche would remove him [2].
People's will was expressed immediately at the popular assembly and the public management was performed through elected or appointed princes. B. Chicherin justly characterized that time saying that initially people acted as an indifferent mass that gradually came to realize it's personality and private interests [10]. Thus, as the society and the state developed people came to have the need for protection of their interests expressed as appeal to public authorities. Due to this, at the cusp of the XIV and XV centuries, people felt the need to appeal to government bodies for protection of their rights and for expression of their interests and wants. Respectively, protection of lawful interests when appealing to government bodies determined its form as the right of petition.
The Law Code of 1497 the right of petition is institutionalized including the right of petition to the sovereign. Article 2 of the Law Code describes the exemplary procedure for appeal submission and consideration, however, there was not detailed appeal mechanism. As compared with the Rus Justice, the advantage of this legal act was the fact that all subjects had the right of appeal, however, a duty collected was a kind of a limitation of the right.
Further, the Law Code of 1550 officially defined the powers of government bodies regarding consideration of different types of appeal as well as determined the liability of different officials for failure to perform their duties. More than that, together with officials' liability, art. 7 of the Law Code of 1550 introduces liability of claimants who
complain of judges rejecting a complaint due to its illegal nature.
It should be noted that at the time under examination, the right of appeal to courts was not segregated from appeal to administration as court was not a separate independent government body. Respectively, the right to appeal to public authorities was both a judicial and an extrajudicial remedy, i.e. the notion of complaint and suit were similar. Later, due to separation of courts and administration, complaint and suit were separated. An independent separate right to appeal to public authorities was established. Also, the right to appeal existed not just in the form of complaint as a method to protect violated rights but also in the form of proposal and application as a method of people's participation in state issue management.
The Council Code of 1649 determined a legal hierarchy for petitioning which did not provide an opportunity to fully exercise the right to appeal to public authorities which was limited for that reason. Under chapter 20 of the Council Code, claimants could not directly appeal to the Tsar. The only exclusion was when their petitions were rejected or their cases were not resolved, then they had an opportunity to directly appeal to the sovereign [9].
Great attention was devoted to the right of appeal to public authorities during the reforms of Peter I, on April 9, 1720 a petition management department was established. Peter I established the position of Master of Requests in the Senate in 1722, to accept petitions. His duties also included accepting claims to Collegiums and Offices. In the event of complaints of slow consideration of a petition, the official was obliged to personally request the relevant body to accelerate the case. If the complaint was in respect of injustice of Collegiums and Offices or in respect of the petition management department, then the Master of Requests reported to the Governing Senate after considering the case and making some notes in its respect.
Later, in June, 1763, Catherine II signed a manifesto on the procedure for consideration of complaints and petitions to the attention of the souvereign. Under the complaint consideration procedure, State Secretaries of the Empress's Cabinet were obliged to take complaints from individuals in respect of actions of administrative bodies. It was in this period that administrative and court proceedings of appeals to public authorities were separated [1]. Cases subject to court proceedings were not considered by State Secretaries but were returned to claimants with the obligation to refer the case to the court. The Empress considered only the petitions requiring her resolution.
However, the said Manifesto limited the right to appeal by estates hierarchy. The nobility had preferential rights. They could address representations of their needs to the Governor General or the Governor and their complaints to the Senate and to the Emperor (art. 47 and art. 48). Under a series of acts adopted in 1730-s, peasants could appeal only to local officials and they could not complain of the actions of their owners. The urban population could send representations of their social needs and benefits only to the Governor. Respectively, the right of appeal was not granted to everybody. There was a need for clearer legislative regulation of the procedure for lodging and consideration of appeals to public authorities.
The Manifesto of January 01, 1810 On Establishment of the State Council developed by M.M. Speransky, introduced modifications to the established procedure of appeal to governmental structures. Now, begging letters addressed to the sovereign were admitted for consideration by a designated unit, i.e. the petition commission headed by a member of the established Council. Such documents as complaints, petitions for awards and benefits, projects were admitted [11].
The commission received petitions and different projects (a prototype of today's legislative proposal). Anonymous appeals, repeated appeals that had been rejected already, complaints to decisions that lost their effect were not considered by the
commission. Cases of utmost importance were not submitted to the commission but were admitted for His Imperial Majesty's consideration. Only nobility assemblies could appeal to the Emperor. All other appeals except for those of the nobility assemblies were submitted to senior officials of the administration.
The Manifesto of June 25, 1811 On General Establishment of Ministries provided for lodging complaints to actions of institutions subordinate to the minister. The complaints had to prove the v'olations, the minister could not receive them in circumvention of subordinate instances. The Code of Criminal and Corrective Penalties of August 15, 1845, established criminal liability for unsubstantiated complaints: for writing and distribution of letters, works of offensive nature in respect of officials of different ranks, impermissible judgments on the government's rulings and actions as well as for insulting officials or government institutions. The appeals were not to contain criticism of decisions and actions of public authorities. All these factors prevented demonstration of the full potential of the granted right as a means to reflect personal opinions and make an impact on the government in people's interests.
Since February 19, 1861, the circle of subjects of appeals to public authorities increased through granting that right to peasants. The section on rural public administration mentioned that the competence of rural assembly included consideration of complaints and requests in respect of public affairs.
The next stage of development of the right to appeal is the Decree of March 21, 1890 under which the Commission for Petition Admission was transformed into His Imperial Majesty's Chancellery with admitted petitions to the Emperor [1]. The Decree established the term for consideration of complaints which were to be lodged within four months after people's rights were violated. Taking into account the poor state of transport infrastructure, it was sometimes impossible to lodge a complaint within such short time and the procedure for complaint handling required claimant's high culture which made it even more difficult. However, there were also some positive aspects: complaints were free and claimants were to be notified of the results of their consideration.
The Order also defined the types of complaints not subject to consideration. They included:
- anonymous complaints;
- complaints not accompanied with necessary documents (the text of the disputed decision or allegedly violated law);
- complaints in telegrams;
- complaints lodged upon expiry of the four months' period after declaration of execution of the disputed decision;
- complaints containing several subject with different applicable procedures;
- complaints executed in a disordered or meaningless manner, using obscene languages or on paper fragments.
This procedure for complaint lodging existed till in 1905, Nicolas II signed an Order granting the right to lodge complaints to all social strata of Russia. However, many issues people could appeal on were limited, it was possible to appeal on improvement of „state development and people's well being" which infringed the right to appeal.
After the October Revolution, all acts in respect of the right to appeal to public authorities were repealed.
Under Decree of the All-Russian Central Executive Committee of April 12, 1919 On State Control an authorized government body was established that controlled admission of complaints and applications and their handling supervision. The Bureau for Admission of Claims of Wrongful Actions, Abusive Practices and Violations by Officials for Consideration of Such Claims by the State Control was established [6].
In the same year, regulations were adopted that enables submission of written and
oral complaints for free. People's appeals divided into:
- complaints of abusive actions of Soviet authorities;
- complaints containing information on illegal or erroneous actions of officials;
- complaints on non-performance of decrees in breach of the political basis of the Soviet power.
Although this act provided for detailed control over the work of public authorities with people's appeals, it did not establish the term for complaint consideration.
Under the Decree of the Council of People's Commissars of December 30, 1919 On Delay Prevention, the instance order for complaints lodging was determined. In August, 1927, the new Regulation on People's Commissariat of Workers' and Peasants' Inspectorate of the Russian Soviet Federated Socialistic Republic which, beside previous functions, provided for the opportunity to indicate deficiencies of the state machinery, bureaucracy and disparagement to working people.
Later documents were adopted that summarized the experience of handling people's appeals to public authorities. The Constitution of the USSR of 1936 and constitutions of the republics of the USSR didn't institutionalize the people's right to appeal to public authorities.
On April 12, 1968, the Presidium of the Supreme Soviet of the USSR adopted the Order On the Procedure of Consideration of Proposals, Claims and Complaints of the People that was a complex regulation implementing the right of appeal.
The Constitution of the USSR of 1977 for the first time declared people's right „to make proposals to government bodies and public organizations on improvement of their activities, criticize deficiencies in their work". From that moment, the people's right to appeal to public authorities became a constitutional norm [1], a constitutional right to people's immediate participation in state and public affairs administration. It should be noted that the constitutional right to appeal in respect of improvement of activities of government bodies and public organizations didn't imply the people's right to appeal to protect their own interests [3]. In 1989 and 1990, there were attempts to adopt a law on the procedure for people's appeals consideration but it was not adopted.
In practice, the constitutional legal institute of the people's right to appeal was adequately institutionalized only in the Constitution of 1993, art. 33, declaring that: Citizens of the Russian Federation shall have the right to appeal in person and make individual and collective appeals to State bodies and local self-government bodies. Article 46 of the Constitution of the Russian Federation provided for a special type of appeals i.e. appeals for judicial protection stipulated under cl. 2, Art 46: „Decisions and actio ns (or inaction) of State government bodies, local self-government bodies, public organizations and officials may be appealed against in court".
Only in 2006, after institutionalization of the constitutional right, Federal Law No 59-FZ On the Procedure for Consideration of Appealsby Citizens of the Russian Federation was adopted. This law established the key principles of, procedure for and guarantees of consideration of appeals by people by state bodies, local government bodies and officials.
4. Conclusion
As the society and the state developed people came to have the need for protection of their interests expressed as appeal to public authorities. Protection of lawful interests when appealing to government bodies determined its form as the right of petition. The Council Code of 1649 determined a legal hierarchy for petitioning which did not provide an opportunity to fully exercise the right to appeal to public authorities. Great attention was devoted to the right of appeal to public authorities during the reforms of Peter I, at that time a petition management department was established. However, till 1861, the
circle of subjects entitled to appeal was limited by the estates.
The constitutional right of appeal was institutionalized in the Constitution of the USSR of 1977, however, it did not grant people the right to protect their own interests. And only under the Constitution of Russia of 1993, citizens of the Russian Federation have the right to appeal in person and make individual and collective appeals to State bodies and local self-government bodies. Federal Law of May 2, 2006 No 59-FZ On the Procedure for Consideration of Appealsby Citizens of the Russian Federation established the key principles of, procedure for and guarantees of consideration of appeals by people by state bodies, local government bodies and officials. Under the law, the right to appeal to public authorities is protection of people's rights by government bodies through lodging appeals to them.
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