Topic 10. Concept and principles of Russian federalism

As one of the foundations of the constitutional order, Art. 1 of the Constitution of the Russian Federation establishes the federal structure of Russia, which reflects the official name of the state. Among the relatively small number of federations in the world, the position of the Russian Federation is unique: it is the largest federation in the world not only in terms of the absolute number of subjects (89), but also in terms of the number of their varieties (6).

The terms "federation" and "federalism" are in high demand in the modern world, and not only in science, but also in such areas of public relations as literature, journalism, sports, culture, trade union and other professional activities, the functioning of various institutions of civil society and public associations (women's, youth, student, children's, veterans', etc.). In the broad sense of the word, a federation (from Latin federare - to unite, strengthen with a union) is understood as any system, structure, consisting of unequal parts.

The terms under consideration also have their own legal meaning. However, they are not identical, but correlate as form and content. Federation is a form of territorial-state structure, in which the constituent parts of the state are relatively independent state formations - the subjects of the federation; federalism, on the other hand, is a manifestation of established federal relations, these are federal relations themselves in all their diversity. Federalism is rightly regarded as an intersectoral concept containing not only legal, but also political, sociological, psychological, historical, economic and other aspects. Thus, federation as a form, the organizational side of the state reflects the statics in state relations, and federalism reflects the dynamics of intrastate relations in a federal state. At the same time, the main thing in the characterization of federalism is not the understanding of the territorial component of the state, but precisely federal relations, that is, the interconnections of the various subjects of these relations. Not being identical, the concepts of "federation" and "federalism" are nevertheless inseparable unity (at least from a purely legal point of view): a federation is unthinkable without federal relations, and federal relations are possible only in a federal state.

It is difficult to draw a clear, insurmountable line between federalism and unitarism. Decentralization of power is inherent not only in a federal, but also in a unitary state, while the degree of autonomy of the constituent parts of some unitary states (regions of Italy, autonomous communities of Spain, the Palestinian Autonomy in Israel, the Republic of Karakalpakstan in Uzbekistan, etc.) may be greater than the degree of autonomy of the constituent parts of certain federal states. states (for example, states in India). Therefore, the essential feature of federalism is not the degree of autonomy of the constituent parts of the state, but the special nature of federal relations, which by definition are impossible in a unitary state, regardless of the scope of rights granted to its territorial units.

Federal states are necessarily characterized by the presence of two levels of state power, and in federal relations the main ones are relations regarding the distribution and exercise of state power. In the exercise of state power, as well as in federal relations in general, there is necessarily an element of agreement (not in the literal legal sense "agreement"), a combination of cooperation and subordination. If in a unitary state power is divided "from above" and also, "from above", at any moment the power and autonomy granted to the constituent parts of the state can be taken away or changed, then in a federal state it is impossible to make such decisions of the central government unilaterally, participation in adoption of such decisions by the subjects of the federation.

10.2. Origins and formation of federalism in Russia

Federalism in Russia is in its infancy. This is due to the fact that Russia does not have its own experience of genuine federal relations: for most of its history, Russia de jure (until 1918) or de facto (during the Soviet period) was a unitary state. Nevertheless, there were elements of federalism in Russia.

The ideas of self-government were enshrined in Russkaya Pravda, the Novgorod and Pskov Judicial Charters, the Sudebniks of 1497 and 1550, the Cathedral Code of 1649, the acts of Peter I, etc. In the process of expanding the Russian Empire, the peoples and territories that were part of Russia (principalities, khanates, kingdoms, provinces, etc.) retained the possibility of self-government and a fairly wide degree of autonomy.

The constitutional drafts of the Decembrists already contain formalized ideas and concepts of a federation (“a republic of a multinational federation of Slavic and some neighboring states of Central and Southern Europe”, “a constitutional monarchy consisting of federal territories”, etc.).

Aggravation of national relations in Russia in the late XIX - early XX century. predetermines the expansion of the anti-imperial movement, the emergence of various platforms of political parties and the expansion of the idea of ​​transition to a federation with the creation of regional and national autonomies.

The Bolsheviks, who came to power in 1917, had a negative attitude towards the federation (“...federation is harmful, federation contradicts the principles of social democracy as applied to Russian reality...”), however, the course of history quickly changed their views, and it was precisely when Soviet power (in 1918) Russia became a de jure federal state for the first time. The transition to federalism was seen as the only way to stop the collapse of the former Russian Empire.

The Russian Federation was originally not contractual or constitutionally contractual (like the federation of the USSR), but constitutional in nature: the federation in Russia was proclaimed, established, and was not the result of a voluntary unification of various territories and peoples. In January 1918, the III All-Russian Congress of Soviets adopted the Declaration of the Rights of the Working and Exploited People, which established Russia as a federation of Soviet national republics. Later, the federal form of the territorial structure was enshrined in the Constitution of 1918 and in all subsequent Russian constitutions. The subjects of the federation in the Soviet period of development were only republics (including autonomous republics), although it was envisaged that the federation would have separate territories (autonomous regions, autonomous districts) with a special national composition, way of life, traditions, which also took part in the work of federal authorities . It is noteworthy that according to the Constitutions of the USSR of 1937 and 1977. autonomous republics of the RSFSR had a direct fixed representation in one of the chambers - the Council of Nationalities of the Supreme Soviet of the USSR. Thus, representatives of most of the constituent parts of the RSFSR (krais and regions) were excluded from participation in solving federal issues. The number, composition, names of the autonomous republics of Russia have repeatedly (often arbitrarily) changed.

Early 1990s in the history of Russian federalism it is noted as the so-called "parade of sovereignties". The 1990 Declaration on State Sovereignty of the RSFSR confirmed the need for a significant expansion of the rights of the autonomous republics. In 1991, four of the five autonomous regions (Adygei, Gorno-Altai, Karachay-Cherkess and Khakass), which were part of the territories, proclaimed themselves republics; The Jewish Autonomous Region, retaining its name, withdrew from the Khabarovsk Territory; The Chukotka Autonomous Okrug in 1992 withdrew from the Magadan Region; there were projects for the formation of new republics on the basis of certain territories, regions (Urals, Far East, etc.).

After the collapse of the USSR in 1991, the collapse of the Russian Federation also became real. To a large extent, it was prevented by the 1992 Federal Treaty. This Treaty was actually a synthesis of three treaties on the delimitation of jurisdiction and powers between the federal center and groups of subjects of the federation: first, the republics; secondly, the territories, regions, cities of federal significance; thirdly, the autonomous region and autonomous regions. The federative treaty was included as an integral part of the Constitution of the Russian Federation of 1978, which predetermined its legal force, significance and place in the legal system of the state. However, the Federal Treaty could not resolve all the negative trends in Russian intra-federal relations, primarily because it fixed the inequality of various subjects of the federation, and this could not satisfy the representatives of most of the subjects - territories and regions. In addition, not all regions signed the Treaty, in particular, Tatarstan, the Chechen-Ingush Republic, many subjects of the Russian Federation signed it with reservations. At present, the Federal Treaty has not been legally canceled, references to it are contained in the current Constitution of the Russian Federation, however, its meaning and place in the legal system have fundamentally changed: in accordance with Part 1 of Sec. 2 "Final and Transitional Provisions" of the Constitution of the Russian Federation, the provisions of the Treaty are valid to the extent that they do not contradict the Constitution of the Russian Federation. Thus, most of the provisions of the Federal Treaty are not actually in force today, and this Treaty has become not so much a valid legal act as a historical document.

Further development of federal relations in Russia is carried out on the basis of the Constitution of the Russian Federation of 1993.

10.3. Constitutional principles of Russian federalism

The federal structure of Russia is devoted to Ch. 3 of the Constitution of the Russian Federation, however, the fundamental principles of the federal structure are enshrined in Art. 4 and 5 ch. 1 "Fundamentals of the constitutional system", which predetermines their significance and immutability in the existence of the current Constitution of the Russian Federation. Most of the enshrined principles underlie the constitutional and legal status of the Russian Federation.

The Constitution of the Russian Federation establishes the following principles of the federal structure of Russia.

state integrity. This principle means, in particular, the unity of the territory of the Russian Federation, the extension of the sovereignty of the Russian Federation to the entire territory, a single economic space, a single legal space, etc.

▪ Unity of the system of state power. This unity is manifested in the unity of the nature of power (source, goals of activity), uniformity in the institutional organization of power at the federal and regional levels, hierarchy and interaction of various government bodies, etc.

▪ Equality and self-determination of peoples in the Russian Federation and the resulting equality of subjects of the Russian Federation. The term “peoples” used in Part 5 of Article XNUMX of the Constitution of the Russian Federation can be interpreted in two meanings: firstly, as representatives of a certain ethnic group living in various constituent parts of Russia (Chechen people, Tatar people, peoples of the Finno-Ugric group, Belarusian diaspora, Azerbaijani diaspora, Germans, Karaites, etc.); secondly, as the entire population living in a certain territory without ethnic, national coloring (the people of Dagestan, the people of the Samara region, residents of Moscow, etc.). In any case, the principle of self-determination of peoples cannot be interpreted as the right of any territory to secede from the Russian Federation: the Constitution directly speaks of the self-determination of peoples in the Russian Federation, therefore, peoples, implementing this principle, can, in particular, change the status of a subject of the Russian Federation on the territory which they live, unite with another subject of the Russian Federation or disunite into several territories, create national-cultural autonomy, etc., but, firstly, within the existing borders of the Russian Federation and, secondly, without encroaching on the foundations of the constitutional system of Russia ( form of government, economic system, ideological, spiritual foundations, etc.). The fundamental novelty of Russian constitutionalism is the provision that all subjects of the Russian Federation (republics, territories, regions, federal cities, autonomous regions and autonomous districts) are equal in rights and have the same legal status.

▪ Delimitation of jurisdiction and powers between government bodies of the Russian Federation and government bodies of the constituent entities of the Russian Federation (between federal and regional government bodies). The measure of division of power between the center and the constituent parts of the state, as noted, is one of the main features of a federal structure. It was this issue that turned out to be key in the formation of Russian federalism, and it needs to be considered in more detail.

When it comes to the delimitation of powers between the federal center and the constituent parts of the state, the terms "delimitation of subjects of jurisdiction" and "delimitation of powers (competencies)" are used. Sometimes these concepts are used as identical, which is not quite accurate. The subjects of jurisdiction (of the Russian Federation, its constituent entities, joint jurisdiction, municipalities) are understood as the spheres of public relations in which the relevant public authorities (local governments) carry out legal regulation, and under the powers - the rights and obligations of the relevant public authority, by which it endowed with the implementation of tasks and functions on the subjects of relevant jurisdiction. Competence is the totality of all the powers of a public authority (local government) in the relevant subject matter. Powers, like competence, are a property that is inherent only to a state body, local government or official.

The fundamental principles of the delimitation of powers between the federal center and the subjects of the Russian Federation are enshrined in the Constitution of the Russian Federation, and the details are contained in the Federal Law of 06.10.1999 No. 184-FZ "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" with amendments . and additional

The delimitation of the subjects of jurisdiction and power is possible in two main ways: normative (constitutional, statutory, legislative) and contractual. At the same time, the contractual method of delimitation is not opposed to the constitutional one, it is not "unconstitutional" and should be applied only within the framework of the current Constitution of the Russian Federation. The difference between these methods lies only in the fact that with the normative method, power is assigned to the relevant subject directly in the normative act (the Constitution of the Russian Federation, the constitution (charter) of the subject of the Russian Federation, federal or regional law), and with the contractual method - in the contract (agreement). It is possible to use any one of these methods, as well as their combinations.

The Constitution of the Russian Federation, proceeding from the principle of three spheres of authority, which is most common in the practice of federal states, establishes:

1) subjects of exclusive jurisdiction of the Russian Federation;

2) subjects of joint jurisdiction (the sphere of the so-called coinciding, competing competence);

3) subjects of own jurisdiction of the subjects of the Russian Federation.

The list of subjects of jurisdiction of the Russian Federation is defined in Art. 71 of the Constitution of the Russian Federation as closed and, therefore, not subject to broad interpretation. The basic criterion for attributing the list of issues to the jurisdiction of the Russian Federation (as in most federal states) is the assignment of rights to it, which together ensure the implementation of state sovereignty, the unity of human and civil rights and freedoms, and a unified state policy. The list of subjects of joint jurisdiction, as well as the list of subjects of jurisdiction of the Russian Federation, is closed under the Constitution of the Russian Federation (Article 72). The list of subjects of jurisdiction of the Russian Federation and joint jurisdiction, as a rule, is reproduced in the constitutions and charters of the constituent entities of the Russian Federation. The subjects of jurisdiction of the constituent entities of the Russian Federation are not clearly defined in the federal Constitution, the Constitution of the Russian Federation establishes only certain areas of legal regulation of the constituent entities of the Russian Federation: the establishment of a system of state authorities (part 2 of article 11; part 1 of article 77), the adoption of constitutions, charters (part 1 of article 2). 66, 2, article 68), the establishment of the state languages ​​of the republics (part 73 of article XNUMX), etc. Therefore, according to the residual principle, this includes all those issues that are not included in the first two areas (article XNUMX of the Constitution of the Russian Federation), and this This means that the scope of legal regulation of the constituent entities of the Russian Federation is quite wide.

The Constitution of the Russian Federation also establishes a hierarchy of normative acts of the Russian Federation and the constituent entities of the Russian Federation: in the subjects of joint jurisdiction, the supremacy has a federal law, and in the subjects of the jurisdiction of the constituent entities of the Russian Federation, normative legal acts of the constituent entities of the Russian Federation have priority over federal laws (parts 5, 6 of article 76 of the Constitution of the Russian Federation ). The priority of federal acts in the sphere of the exclusive jurisdiction of the Russian Federation is obvious, since in this area regional acts, as a general rule, should not be issued (part 1 of article 76). It should be borne in mind that not only federal laws can be adopted on subjects of joint jurisdiction of the Russian Federation and its subjects (such a conclusion may arise based on the literal interpretation of part 2 of article 76 of the Constitution of the Russian Federation), but also federal regulatory legal acts of a by-law nature ( decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation, departmental acts). The legal position on this issue was expressed by the Constitutional Court of the Russian Federation in Resolutions of 09.01.1998 No. 1-P "On the case of checking the constitutionality of the Forest Code of the Russian Federation" and of 27.01.1999 No. 1-P "On the case of the interpretation of Articles "), 71 (part 76) and 1 (part 112) of the Constitution of the Russian Federation".

The ratio of federal and regional legislation on the subjects of joint jurisdiction in Art. 76 (parts 2 and 5) of the Constitution of the Russian Federation is defined as follows: in these areas of public relations, both federal laws and other federal legal acts, and laws and other regulatory legal acts of the constituent entities of the Russian Federation can be adopted. However, the latter must be adopted in accordance with federal laws, but in the event of a conflict between a federal law and a regulatory legal act of a constituent entity of the Russian Federation, the federal law applies.

The absence of a federal law on issues of joint jurisdiction of the Russian Federation and its constituent entities is not an obstacle to the settlement of this issue by a constituent entity of the Russian Federation. However, the possibility of advanced legal regulation in the subject of the Russian Federation is very limited. Firstly, the constitutional prescription on the need for regulatory legal acts of the constituent entities of the Russian Federation to comply with the federal law also implies bringing the legal act of the constituent entity of the Russian Federation into line with the federal law adopted later. Secondly, the Federal Law "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" after the introduction of amendments and additions on July 4, 2003 contains a closed list of powers of state authorities of the subjects on subjects of joint jurisdiction that they can carry out independently.

The contractual way of delimiting power vertically in a federal state should be considered as an auxiliary one, since in all major areas of social relations the subjects of jurisdiction and powers should be delineated normatively.

In the late 1990s in Russia, the "parade of sovereignties" grew into a "parade of concluding agreements", for the constituent entities of the Russian Federation it became "not prestigious" not to conclude an agreement with the center. The contractual process during this period rightly caused ambiguous assessment and anxiety, since the norms of concluded contracts invaded the sphere of federal constitutional and legislative regulation, the contractual model of the Russian Federation ("contract law") began to be actually approved. By the spring of 1999, 42 agreements had already been concluded with state authorities in 46 constituent entities of the Russian Federation and more than 250 specific agreements to them. The subjects of the Russian Federation that signed the agreements occupied most of the country's territory, more than 50% of the population lived in them, and more than 60% of Russia's economic potential was concentrated. At the same time, most of the agreements signed at that time between the federal state authorities and the state authorities of the subjects of the Russian Federation changed the scheme for delimiting the subjects of jurisdiction between the Russian Federation and its subjects, established in the Constitution of the Russian Federation.

The strengthening of the vertical of state power in Russia contributed to the fact that by the end of 1999 the conclusion of new agreements was suspended, and since 2002 the process of termination of the agreements concluded by agreement of the parties began (at present, most of the agreements concluded have been canceled).

The current legislation has also changed the procedure for implementing the contractual method of delimiting the subjects of jurisdiction and powers between federal and regional government bodies. The federal law "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation", firstly, establishes a subject limiter, i.e., the subject of the contract can only be specific powers of federal and regional government bodies, due solely to economic , geographical and other features of the constituent entity of the Russian Federation and to the extent that these features define other than that established in federal laws, the division of powers (the subject of agreements between federal and regional executive authorities can only be the delegation of part of the available powers). Secondly, the Law establishes a time limiter, i.e. the contract (agreement) cannot be unlimited, the deadline for the contract is ten years with the possibility of early termination (termination) both by agreement of the parties and by a court decision. Thirdly, the Law consolidates the concept of a non-self-executing contract in intra-federal relations, which predetermines the complication of the procedure for concluding and entering into force of contracts and agreements - contracts are subject to preliminary (before the signing of the contract by the President of the Russian Federation and the head of the region) approval in the legislative body of the subject of the Russian Federation and approval of the signed contract by the federal by law. Thus, such agreements can be called bilateral with a high degree of conventionality, since in essence there is an agreed (prevailing) will of dozens of subjects of the legislative process, including all subjects of the Russian Federation. Agreements between federal and regional executive authorities come into force after they are approved by resolutions of the Government of the Russian Federation. Such a procedure will make it possible to exclude provisions from contracts and agreements that violate the principle of equality of subjects of the Russian Federation (public authorities of any subject of the Russian Federation have the right, at their request, to receive a draft contract or agreement and express their suggestions and comments).

For contracts and agreements concluded earlier and currently in force, it is established that if they are not approved by federal law or a decree of the Government of the Russian Federation, respectively, by July 8, 2005, they will cease to be valid.

With the delimitation of powers between the center and the regions, the normative meaning of concluding agreements is largely lost. The main purpose of intrastate (as well as intraregional) treaties and agreements is to concretize, clarify, delegate normatively delimited powers of authority with the unconditional priority of the normative way of separating power along the vertical.

Author: Nekrasov S.I.

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