On the control and supervisory functions of the Ministry of Justice of the Russian Federation

Uvarov Aleksandr Anatol'evich Doctor of Law Professor, Department of State Law Disciplines, Sochi Branch of the All-Russian State University of Justice 354057, Russia, Krasnodar Territory, Sochi, Dagomysskaya str., 42 uvarov.al@mail.ru

Iakovlev-Chernyshev Vasilii Aleksandrovich Graduate student; Department of Theory, History of State and Law; Sochi Branch of the All-Russian State University of Justice 354057, Russia, Krasnodar Territory, Sochi, Dagomysskaya str., 42 basil.yakovlev@mail.ru Other publications by this author

The Ministry of Justice of the Russian Federation (hereinafter – the Ministry of Justice of Russia) occupies a special place in the executive branch of government. This is due to the fact that the Ministry of Justice of the Russian Federation is authorized to solve a wide range of tasks, the key of which is to ensure a unified legal space of Russia. In order to understand what the mechanisms for solving these tasks are, it is necessary to highlight the functions assigned to the Ministry of Justice of the Russian Federation, since they are quite diverse and not concentrated in one legal act, but it is thanks to them that "the impact of a constantly evolving system on public relations" ^{[1, p. 122]}.

If we analyze the Decree of the President of the Russian Federation dated 01/13/2023 No. 10 "Issues of the Ministry of Justice of the Russian Federation", which approved the Regulation on the Ministry of Justice of the Russian Federation (hereinafter referred to as the Regulation), then we can note some problem areas of this legal act. It seems that paragraph 2 of the Regulation is not formulated in the most successful way, since it confuses the concepts of "function", "authority", "subject matter", as well as reaching the level of legal regulation of the federal legislator.

For example, sub-paragraph 9 of paragraph 2 of the Regulation refers to "the activities of the penal enforcement system." But this provision cannot be fixed in any way in a by-law, since the regulation of the activities of the penal enforcement system is carried out on the basis of the Penal Enforcement Code of the Russian Federation, that is, federal law, and not instructions and regulations of the Ministry of Justice of the Russian Federation.

In subsection 10, paragraph 2 of the Regulation, the powers of the Ministry of Justice of the Russian Federation include a provision on the territorial structure of the Russian Federation, which, according to Article 71 of the Constitution of the Russian Federation, is subject to the jurisdiction of the Russian Federation. However, the subject matter cannot be held by a public authority, since it relates to a public legal entity, in this case, to the Russian Federation. As V. V. Elistratova notes, this is due to the fact that the subject matter affecting the spheres of public life "involves the work of state bodies of different levels" ^{[2, p. 213]}. At the same time, issues of territorial structure can be resolved both at the federal and regional levels (in particular, the issue of the administrative-territorial structure of a subject of the Russian Federation belongs to the jurisdiction of the subjects of the Russian Federation), in connection with which, according to current legislation, the role of the Ministry of Justice of the Russian Federation is not visible here. The specified subparagraph also mentions "the delimitation of powers between federal bodies of state power, bodies of state power of the subject of the Russian Federation and local self-government bodies." However, the consolidation of such wording comes into direct conflict with Part 6 of Article 1 of Federal Law No. 414-FZ dated 12/21/2021 "On General Principles of the Organization of Public Power in the Subjects of the Russian Federation", which states that these issues are regulated by the Constitution, federal laws and agreements on subjects of jurisdiction. There is an obvious inclusion of issues regulated by federal law in the powers of the Ministry of Justice of the Russian Federation. At the same time, the inclusion in this subparagraph of the issues of "legal organization of local self-government" does not formally contradict the legislation by virtue of the consolidation in Part 1 of Article 4 of Federal Law No. 131-FZ dated 06.10.2003 "On General Principles of Organization of Local Self-Government in the Russian Federation" of the possibility of regulating the foundations of local self-government, including regulatory legal acts of federal executive authorities. However, along with the Ministry of Justice of the Russian Federation, many other federal executive authorities can claim this, so if it is necessary to leave this wording, the Regulation should specify exactly which of its powers are related to this.

There is a terminological confusion when comparing paragraphs 2 and 19 of the Regulation. So, in the sub-item. 2, 3, 6, 7, 8, 9 Paragraph 2 of the Regulation on Functions refers to the state registration of non-profit organizations, the provision of free legal assistance, legal information, legal education, etc. At the same time, we find similar formulations in the powers of the Ministry of Justice of the Russian Federation in the sub-paragraph. 1, 4, 5, 6, 7, 8 Clause 19 of the Regulation. It remains unclear why, with this approach, there was no place in paragraph 19 for the bar and the notary, which are mentioned in sub-paragraphs 4, 5, paragraph 2 of the Regulation. In our opinion, paragraph 5 of the Regulation, which establishes the range of subjects in respect of which the control and supervisory function is carried out, could be reflected in paragraph 2 of the Regulation. Listing the main areas of activity in one paragraph would look more logical and reduce the risks of "scattering" functions.

It seems that the classification of functions of the Ministry of Justice of the Russian Federation developed by us would be useful to improve the Provision under consideration (see the table).

Table – Classification of functions of the Ministry of Justice of the Russian Federation

In our opinion, due to the complexity and versatility of the implementation, consideration of the control and supervisory function of the Ministry of Justice of the Russian Federation deserves special attention.

This function is carried out by the Ministry of Justice of the Russian Federation in relation to a wide range of subjects of law. Thus, the control functions of the Ministry of Justice of the Russian Federation can be divided into a range of subjects as follows:

Notary office. Notaries are divided into public and private ones. The Ministry of Justice of the Russian Federation influences the notary public by adopting regulatory legal acts jointly with the Federal Notary Chamber (hereinafter also referred to as the FNP). Thus, the fundamental normative legal acts through which the Ministry of Justice of the Russian Federation performs control and supervisory functions are: Order of the Ministry of Justice of the Russian Federation dated 06/29/2015 No. 150 "On Approval of the Regulations on the Qualification Commission" (together with the Regulation, approved by the decision of the Board of the FNP dated 05/18/2015), Order of the Ministry of Justice of the Russian Federation dated 12/14/2022 No. 394 "On approval of the Rules of Notarization office Work" (together with the "Rules of Notarial Office Work", approved by the decision of the FNP Board of 28.11.2022 No. 21/22) and the Code of Professional Ethics of Notaries in the Russian Federation, approved by the Ministry of Justice of the Russian Federation and the decision of the Meeting of the Notary Chambers of Representatives of the Subjects of the Russian Federation on 12.01.2019, 19.01.2016.

The qualification commission on a parity basis consisting of at least six people is formed under the territorial body of the Ministry of Justice of the Russian Federation. The chairman of the qualification commission is the head or deputy head of the territorial body of the Ministry of Justice of the Russian Federation, and the deputy chairman of the qualification commission is the president of the notary chamber or a member of the notary chamber. The secretary of the qualification commission is appointed by one of the members of the qualification commission, namely: a civil servant of the territorial body of the Ministry of Justice of the Russian Federation. Thus, the Ministry of Justice of the Russian Federation exercises control and is able to assess whether a person is worthy of becoming a notary, or to continue this activity.

Within the framework of the approved Rules of notarial Record keeping, the Ministry of Justice of the Russian Federation may carry out scheduled, unscheduled and repeated inspections. A scheduled check is carried out once every four years, unless otherwise provided by the legislation of a constituent entity of the Russian Federation, or if a person has started to carry out notarial activities for the first time, then one year after such a person was granted the powers of a notary (clause 5 of the Rules of Notarial clerical work). The audit is carried out by an emerging commission consisting of at least two people, which includes representatives of the territorial body of the Ministry of Justice of the Russian Federation and members of the notary chamber. Verification can be carried out in relation to the correct registration of nomenclature cases, the correctness of processing incoming and outgoing documents, etc. According to the results of such verification, in accordance with paragraph 191 of the Rules of Notarial Clerical work, four decisions can be made: 1) the notary's work is recognized as satisfactory; 2) the notary eliminates the detected violations within the time period established by the commission; 3) a re-examination is appointed; 4) the inspection materials are sent to the notary chamber to initiate disciplinary proceedings within the framework of the Code of Professional Ethics of Notaries. Based on this, it can be concluded that the Ministry of Justice of the Russian Federation can influence a notary when committing illegal actions, including by initiating disciplinary proceedings in the notary chamber.

As part of the disciplinary proceedings, it is revealed whether the notary has committed illegal actions provided for in clause 10.2 of the Code of Professional Ethics of Notaries. If a notary is brought to disciplinary responsibility, he may be reprimanded in accordance with clause 10.4 of the Code of Professional Ethics of Notaries (removed one year after the announcement), reprimanded (removed two years after the announcement), or severely reprimanded (removed five years after the announcement). Disciplinary proceedings are carried out by the Federal Chamber of Notaries, which has the right to involve the territorial body of the Ministry of Justice of the Russian Federation in accordance with clause 12.3 of the Code of Professional Ethics of Notaries. At the same time, the question arises whether the Ministry of Justice of Russia and the federal Notary Chamber have reached the level of discretion of the federal legislator. So, N.M. Salikhova, E.M. Batukhtina note that if a notary working in a state notary office is an employee from the point of view of labor law and is held accountable in accordance with labor legislation, then a notary engaged in private practice is not an employee either in relation to the notary chamber or to the authorities justice ^{[3, pp. 31-32, 34]}. Moreover, as the authors show, a notary engaged in private practice is an employer, since he hires employees and does not conclude an employment contract with anyone, which excludes the possibility of using the concept of "disciplinary responsibility" ^{[3, pp. 32, 34]}. Thus, we can talk about ethical, corporate, organizational, but not disciplinary responsibility ^{[3, p. 34]}. It is worth noting that in the Letter of the Federal Service for Labor and Employment dated 02/14/2022 No. PG/01665-6-1 "On bringing employees to disciplinary responsibility for non-compliance with corporate ethics requirements on the basis of a local regulatory act providing for rules of conduct for employees in the organization" it is mentioned that the code of corporate ethics is a local legal act of the employer, which cannot It can be used to bring to justice if it contradicts the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). In this case, if we consider the Code of Professional Ethics of Notaries, there are contradictions with the Labor Code of the Russian Federation, because: 1) Part 1 of Article 192 of the Labor Code of the Russian Federation establishes disciplinary penalties in the form of a remark, reprimand and dismissal on appropriate grounds. There is no strict reprimand as a measure of disciplinary punishment in the Labor Code of the Russian Federation, but in the case of the Code of Professional Ethics of Notaries, there is a strict reprimand; 2) according to Part 1 of Article 194 of the Labor Code of the Russian Federation "if an employee is not subjected to a new disciplinary punishment within a year from the date of application of a disciplinary penalty, then he is considered not to have a disciplinary penalty", in Clause 10.5 of the Code of Professional Ethics of Notaries, this period may be set up to five years. This provision obviously does not meet the requirements of Part 4 of Article 8 of the Labor Code of the Russian Federation that the norms of local legal acts that worsen the situation of an employee do not apply; 3) a notary engaged in private activities is in the role of an employer, not an employee. But even if we conditionally take this provision out of brackets, then in this case the Code of Professional Ethics of Notaries contradicts Articles 8, 192, 194 of the Labor Code of the Russian Federation.

The legal profession. A significant difference between the legal profession and the notary is a more significant separation from the Ministry of Justice of Russia and its territorial bodies. Of course, the Ministry of Justice of the Russian Federation approves the forms of the lawyer's certificate and the procedure for filling it out, the requirements for the form, the procedure for processing and sending a lawyer's request, etc., thereby unifying and monitoring compliance with procedural rules. At the same time, the presence of even such powers, which can hardly be considered an encroachment on the independence of the bar, is not always accepted unambiguously by representatives of the legal environment. Thus, A.V. Ragulin, who is critical of various initiatives and proposals in the field of advocacy ^[4], does not agree that the Ministry of Justice of Russia should "indicate how lawyers fill out and execute warrants" ^{[5, p. 26]}. The author believes that the Russian Ministry of Justice can thereby put pressure on lawyers due to formal requirements. In our opinion, this position is controversial, since the Ministry of Justice of the Russian Federation should, first of all, carry out an understandable and reasonable unification of issues related to the warrant, forms of lawyer's request, etc. Without these powers, the Ministry of Justice of the Russian Federation simply would not be able to adequately carry out the control and supervisory function in the field of advocacy. In this regard, the opinion of A. N. Tselovalnik seems justified, who speaks about the ongoing search for a balance in the relationship between the Ministry of Justice of Russia and the bar ^{[6, p. 260]}.

It should also be noted that the influence of the Ministry of Justice of the Russian Federation on the decision-making process of the qualification commission is significantly lower than in the field of notarization. Thus, in accordance with Article 33 of Federal Law No. 63-FZ of 05/31/2002 "On Advocacy and Advocacy in the Russian Federation", the qualification commission is formed of thirteen people, seven of whom belong to the bar chamber, six represent state authorities, two of them are the territorial body of the Ministry of Justice of Russia. The decisions of the qualification commission are made by a simple majority. That is, seven lawyers, with unanimity, will prevail over a different position of representatives of state authorities in any case. It should also be noted that the Ministry of Justice of the Russian Federation, as in the case of notaries, may make a submission, which, by virtue of subsection 3, paragraph 20 of the Code of Professional Ethics of Lawyers (adopted by the first All-Russian Congress of Lawyers on January 31, 2003), is a reason to initiate disciplinary proceedings against a lawyer. According to paragraph 6 of the Code of Professional Ethics of Lawyers, after the initiation of disciplinary proceedings, the person, organization or body that filed a complaint, appeal, or representation becomes a participant in such proceedings. Disciplinary proceedings by virtue of clause 5 are carried out by the qualification commission, i.e. the Commission of the Federal Chamber of Lawyers on Ethics and Standards in accordance with Article 9.1 of the Regulations of the Commission of the Federal Chamber of Lawyers on Ethics and Standards (approved by the decision of the Council of the Federal Chamber of Lawyers dated 04/19/2017, Protocol No. 10) and the Council of the Federal Chamber of Lawyers. In accordance with Article 3 of the Regulations, the Commission of the Federal Chamber of Lawyers consists of sixteen members, ten of whom are lawyers, six represent various state authorities, including two – the Ministry of Justice of the Russian Federation.

Civil registration authorities (hereinafter referred to as registry offices). The Ministry of Justice of the Russian Federation performs control and supervisory functions in relation to registry offices on the basis of Order No. 212 of the Ministry of Justice of the Russian Federation dated 11/20/2012 "On Approval of the Administrative Regulations for the Execution by the Ministry of Justice of the Russian Federation of the State Function of control and supervision in the field of State registration of acts of civil status" (hereinafter - Order No. 212) and Order No. 232 of the Ministry of Justice of the Russian Federation dated 11/22/2018 "On Approval of the Procedure for monitoring the effectiveness and quality of the Implementation by State authorities of the subjects of the Russian Federation of the powers transferred to them for the Exercise of the powers of the Russian Federation for the State registration of acts of civil status" (hereinafter - Order No. 232).

According to paragraph 6 of Order No. 212, the subject of control in the field of state registration of acts of civil status is to ensure the exercise of the powers of the Russian Federation for state registration of acts of civil status. In accordance with paragraph 7 of Order No. 212, the subject of supervision in the field of state registration of acts of civil status is compliance by civil registry offices with mandatory requirements established by legislation on acts of civil status and requirements established by regulatory legal acts of the subjects of the Russian Federation.

In order to exercise control and supervision, the Ministry of Justice of the Russian Federation carries out scheduled and unscheduled inspections to identify, suppress and prevent violations of the Registry Office. Inspection plans are carried out on the basis of Orders from the Ministry of Justice of the Russian Federation and its territorial bodies. The reason for the inclusion of the registry office in the inspection plan is the expiration of a three-year period from the date of the last inspection.

If violations are detected as part of the audit, the Ministry of Justice of the Russian Federation or its territorial bodies, in accordance with paragraph 70 of Order No. 212, make an order to eliminate violations of the law, or send information about the violations to the head of the executive authority of the subject of the Russian Federation and (or) the highest official of the subject of the Russian Federation, or the Ministry of Justice of the Russian Federation prepares a submission on temporary withdrawal by the Government The Russian Federation has the authority to register civil status acts.

The grounds for conducting an unscheduled inspection in accordance with paragraph 37 of Order No. 212 may be: failure by the registry office to comply with the instructions of the Ministry of Justice of the Russian Federation or its territorial bodies; receipt of information from public authorities about violations by the registry office of legislation; complaint about the action (inaction) of the registry office bodies violating the legislation of the Russian Federation or receipt of other information indicating the presence of signs such violations.

Within the framework of Order No. 232, the Ministry of Justice of the Russian Federation and its territorial bodies may also conduct scheduled or unscheduled inspections carried out in the form of a documentary or on-site inspection. Order No. 232, in addition to the purpose of identifying violations of the law, also aims to assess the quality and effectiveness of the registry office, which is based on an analysis of indicators including the number of registered acts of civil status and a number of others.

The Federal Penitentiary Service (FSIN of Russia) and the Federal Bailiff Service (FSSP of Russia). In relation to subordinate bodies, the Ministry of Justice of the Russian Federation acts on the basis of Order No. 361 of the Ministry of Justice of the Russian Federation dated 10/27/2009 "On the organization of inspections in Federal Services Subordinate to the Ministry of Justice of the Russian Federation, coordination and control of their activities" (hereinafter – Order No. 361). This Order is very insignificant in terms of its scope and legal regulation, unlike, for example, the fairly regulated Orders No. 212 and Order No. 232 relating to the control and supervision of registry offices. Order No. 361 refers only to scheduled inspections, which are carried out no more than thirty days and are aimed at identifying regulatory legal acts that may be subject to state registration, compliance of decisions with current legislation, timeliness and quality of execution of instructions from the President of the Russian Federation, the Government of the Russian Federation, the Ministry of Justice of the Russian Federation by federal services. Upon completion of the audit, the Director of the Federal Penitentiary Service of Russia or the FSSP of Russia is obliged to familiarize himself with the final certificate under signature and, if deficiencies are identified, organize work within ten days to eliminate the identified deficiencies and monitor the progress of work.

In general, the Ministry of Justice of the Russian Federation exercises control over a wide range of public authorities, since in accordance with the Regulation (subp.  10, 38, paragraph 20; sub-paragraphs 1, 2, 9, 10, paragraph 23) he may request acts of state authorities for conducting a legal examination on the need for their registration, verify regulatory legal acts and, if they are found to be inconsistent with the Constitution of the Russian Federation and (or) federal laws, send mandatory instructions. The Ministry of Justice of the Russian Federation also registers the charters of municipalities (sub-item 10, paragraph 19 of the Regulation), which ensures control over local self-government bodies.

Non-profit organizations. The Ministry of Justice of the Russian Federation registers and monitors the activities of non-profit organizations (sub-paragraphs 1, 2, paragraph 5 of the Regulations). Special attention in this area is paid to non-profit organizations that are foreign agents. Thus, the Ministry of Justice of the Russian Federation maintains a separate register of organizations and persons who are foreign agents, in accordance with Part 1 of Article 5 of Federal Law No. 255-FZ dated 07/14/2022 "On Control over the activities of Persons under Foreign Influence." At the same time, it is worth noting that control (supervision) The Ministry of Justice of the Russian Federation sometimes assesses the monitoring of non-profit organizations as excessive. For example, M. I. Temurkaev believes that excessive, disproportionate responsibility of non-profit organizations has been established for certain violations, which does not allow them to develop ^{[7, pp. 135-136]}. It seems that this position is ambiguous and controversial. The Ministry of Justice of the Russian Federation exercises fairly strict control (supervision) over non-profit organizations, since they can have a significant negative impact on society and do not perform their originally intended functions. Moreover, the Russian Ministry of Justice has at its disposal various measures to respond to violations in the activities of non-profit organizations. According to sub-item 4, paragraph 13 of the Order of the Ministry of Justice of the Russian Federation dated 12/30/2021 No. 274 "On Approval of the Administrative Regulations for the Implementation by the Ministry of Justice of the Russian Federation of State Control (Supervision) over the compliance of the activities of non-profit organizations with the statutory goals and Objectives, branches and representative offices of international organizations, foreign non-profit non-governmental organizations with the stated goals and objectives, as well as their compliance with the legislation of the Russian Federation Federation", such measures are: 1) issuing a warning (making a submission); 2) suspending the activities of public associations and religious organizations; 3) initiating an administrative offense case; 4) sending an application to the court for the suspension of the activities of a political party and its regional branches, religious organizations or the liquidation of a non-profit organization.

Thus, based on the results of the study, the following conclusions can be drawn:

1) it is necessary to amend paragraph 2 of the Regulations on the Ministry of Justice of the Russian Federation to eliminate confusion between the concepts of "function" and "subject matter";

2) amendments should be made to paragraphs 2 and 19 of the Regulation, since at the moment the concepts of "function" and "powers" are being confused, and also with this approach some functions related to powers are not mentioned (paragraph 19 does not mention the bar, the notary);

3) it is necessary to remove from clause 2 of the Provision norms that go beyond the functions of the Ministry of Justice of the Russian Federation to the level of discretion of the federal legislator;

4) in subsection 10, paragraph 2 of the Regulation, it is necessary to specify exactly which powers of the Ministry of Justice of the Russian Federation are related to issues of "legal organization of local self-government", since along with the Ministry of Justice of the Russian Federation, many other federal executive authorities can claim this;

5) due to the fact that the functions of the Ministry of Justice of the Russian Federation are not concentrated in any one point of the Regulation, the author's classification was proposed within the framework of the study, which makes it possible to improve the Situation on the basis of systematization and clarification of the content of the functions performed by the Ministry of Justice of the Russian Federation;

6) due to the diversity and vastness of the functions of the Ministry of Justice of the Russian Federation, special attention has been paid in this article to one of the main functions of the Ministry of Justice of the Russian Federation – the control and supervisory function. As part of the identification of the content of this function, the peculiarities of control (supervision) in relation to subjects of law controlled by the Ministry of Justice of the Russian Federation were revealed.

Thus, the Ministry of Justice of the Russian Federation exercises strict control over the notary and is able to influence decisions by directly participating in the work of qualification commissions, during inspections of notaries, etc. The study proves that the Ministry of Justice of the Russian Federation, together with the Federal Notary Chamber, should eliminate contradictions between the Code of Professional Ethics of Notaries and the Labor Code of the Russian Federation.

In relation to the bar, the Ministry of Justice of Russia has much less influence than in relation to the notary. At the same time, the possibility of initiating disciplinary proceedings is an important lever of pressure on a lawyer acting in violation of legislation or ethical standards.

With regard to registry offices, the Ministry of Justice of the Russian Federation is endowed with broad powers, primarily related to the possibility of scheduled, unscheduled inspections and evaluation of the quality of the activities of registry offices based on controlled indicators.

The Federal Penitentiary Service of Russia and the FSSP of Russia, subordinate to the Ministry of Justice of Russia, are monitored (supervised) through scheduled inspections. This is due to the fact that the Ministry of Justice of Russia is already endowed with sufficient levers of influence on these federal services.

The Ministry of Justice of the Russian Federation uses a wide range of tools in relation to non-profit organizations. It all depends on which entity is being monitored (supervised) The Ministry of Justice of Russia. If we are talking about non-profit organizations that are foreign agents, then control (supervision) over them is quite tight (for example, reporting forms have been established with a wide list of information that must be provided to the Ministry of Justice of the Russian Federation) to prevent destructive influence from these entities. For other non-profit organizations, control (supervision) is more lenient.

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