For a civil servant, special restrictions and prohibitions on service are established (Articles 16 and 17 of the Federal Law “On the State Civil Service Russian Federation"). A civil servant cannot be accepted into the civil service, and a civil servant cannot be in the civil service if:
1) recognition of him as incapable or partially incapacitated by a court decision that has entered into legal force;
his conviction to a punishment that excludes the possibility of performing official duties in a public service position, by a court verdict that has entered into legal force, as well as in the event of a conviction that has not been expunged or not canceled in accordance with the procedure established by federal law;
refusal to go through the procedure for issuing access to information constituting a state or other secret protected by federal law, if the performance of official duties in the position of the civil service for which the citizen is applying, or in the position of the civil service being occupied by a civil servant, is associated with the use of such information;
the presence of a disease that prevents entry into the civil service or its passage and is confirmed by the conclusion of a medical institution;
close relationship or property (parents, spouses, children, brothers, sisters, as well as brothers, sisters, parents and children of spouses) with a civil servant, if the replacement of a civil service position is associated with direct subordination or control of one of them to another;
renunciation of citizenship of the Russian Federation or acquisition of citizenship of another state;
the presence of citizenship of another state, unless otherwise provided by an international treaty of the Russian Federation;
submission of false documents or knowingly false information when entering the civil service;
failure to provide established by law or submission of deliberately false information about income, property and obligations of a property nature.
For a civil servant, there are prohibitions related to the civil service. A civil servant, for example, is prohibited from:
participate on a paid basis in the activities of the management body of a commercial organization, except for cases established by federal law;
replace a civil service position in the event of:
a) election or appointment to public office;
b) election to an elective position in a local self-government body;
c) election to a paid elective position in a body of a trade union, including in an elected body of a primary trade union organization established in a state body; a civil servant is obliged to fully devote himself to public service, which ensures its effectiveness. A civil servant is not entitled to hold another position, be a deputy of the legislative (representative) body of the Russian Federation, legislative (representative) bodies of the constituent entities of the Russian Federation, local governments. This ban is due to the requirement from a civil servant of the utmost dedication, being in the service constantly during the entire working time;
carry out business activities. Entrepreneurial activity is any independent initiative activity of civil servants, which is carried out on an ongoing basis through both personal performance of work and investment in the enterprise in the forms prescribed by law, and aimed at obtaining personal cash income;
acquire, in cases established by federal law, securities on which income can be received;
be an attorney or representative for third parties in the state body in which he replaces the position of the civil service, unless otherwise provided federal laws. Representation is expressed in the activities of the representative, performed on behalf of the represented. The representative acts on behalf of and in the interests of the person represented (Article 182 of the Civil Code of the Russian Federation);
receive in connection with the performance of official duties remuneration from individuals and legal entities (gifts, monetary rewards, loans, services, payment for entertainment, recreation, transportation costs and other remuneration). This prohibition does not deprive civil servants of the possibility of receiving symbolic signs of attention in accordance with generally recognized norms of courtesy and hospitality, symbolic souvenirs during protocol or other official events;
travel in connection with the performance of official duties outside the territory of the Russian Federation at the expense of individuals and legal entities;
use for purposes not related to the performance of official duties, means of material and technical and other support, other state property, as well as transfer them to other persons;
disclose or use for purposes not related to the civil service, information classified in accordance with federal law as confidential information, or proprietary information that became known to him in connection with the performance of official duties;
accept awards, honorary and special titles (with the exception of scientific ones) of foreign states, international organizations, as well as political parties, other public associations and religious associations, without the written permission of the representative of the employer, if in his official duties includes interaction with the indicated organizations and associations;
terminate the performance of official duties in order to resolve an official dispute. Thus, a civil servant is not entitled to participate in strikes as a way to resolve problems that arise in the civil service system. The state and its organs daily have many external enemies", with which they are called upon to "fight": disasters, earthquakes, fires, floods, military conflicts, crime, diseases, etc. If civil servants are allowed to go on strike, then the state will have an “internal enemy” capable of destroying statehood in an instant and bringing disharmony into social and economic relations. A civil servant is warned upon entering the civil service about such a right restriction and thus accepts it voluntarily;
use his official position in the interests of political parties, public, including religious, associations. This prohibition is directly related to the principle of non-partisan civil service. But it does not mean that civil servants are deprived of the right to join political parties and hold leadership positions in it. They may follow different political views. One of the most important legal conditions that ensure compliance with the prohibition of a civil servant on the use of his official position in the interests of political parties is the prohibition on education in government bodies structures of political parties, religious, public associations, with the exception of trade unions and some other bodies of public amateur performance.
Thus, the state imposes restrictions and prohibitions on a civil servant related to the fact that a civil servant more effectively uses his official time in the interests of the state and society.
"HR officer. Labor law for a personnel officer", 2010, N 3
Restrictions Associated with the Public Civil Service: Issues of Fairness and Reasonability
The restrictions provided for by the current legislation related to entering the state civil service and its passage are imperative. The author of the article considers the defects of these norms.
Civil Service Law Art. 16 establishes a list of circumstances in the presence of which a citizen cannot be accepted into the civil service, and a civil servant cannot be in the civil service. Beyond Restrictions this Law establishes a wide list of prohibitions related to public service (by the way, in the Law on the Fundamentals of Public Service they were called not prohibitions, but restrictions). Within the meaning of Art. 17 of the Civil Service Law, prohibitions, unlike restrictions, are addressed exclusively to a civil servant, and not to a person entering the civil service. In this regard, in practice, there may be some problems associated with the application of these rules.
For example, paragraph 1 of part 1 of Art. 17, a civil servant is prohibited from participating on a paid basis in the activities of the management body of a commercial organization, with the exception of cases established by federal law. Violation of this prohibition, in accordance with paragraph 14 of Part 1 of Art. 33, is the basis for the dismissal of such a civil servant. However, imagine the reverse situation, i.e. when a person participating on a paid basis in the activities of the management body of a commercial organization submits documents to participate in a competition for replacement vacant position state civil service. The current legislation does not contain grounds for refusing such a citizen.
So, according to clause 10 of the Competition Regulations, a citizen (civil servant) is not allowed to participate in the competition due to his non-compliance with the qualification requirements for a vacant civil service position, as well as due to restrictions established by the legislation of the Russian Federation on the state civil service for civil service entry and completion. In other words, neither the Law itself nor the above Regulations provide for a refusal to be admitted to the civil service due to non-compliance with the prohibitions provided for in Art. 17 of the above law. Accordingly, such a citizen must be admitted to the state civil service, after which the question of violating the ban associated with the passage of civil service, and, accordingly, the dismissal of such a citizen, will naturally arise.
Note. Prohibitions and restrictions of the civil service in the regulations:
Federal Law No. 119-FZ of July 31, 1995 "On the Fundamentals of the Public Service of the Russian Federation" (not in force, in the text - the Law on the Fundamentals of Public Service).
Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ (as amended on June 28, 2009, in the text - Code of Civil Procedure of the Russian Federation).
Civil Code of the Russian Federation (part one) dated November 30, 1994 N 51-FZ (as amended on December 27, 2009, in the text - the Civil Code of the Russian Federation).
Criminal Code of the Russian Federation of 06/13/1996 N 63-FZ (as amended on 12/27/2009, in the text - the Criminal Code of the Russian Federation).
Code of Criminal Procedure of the Russian Federation of December 18, 2001 N 174-FZ (as amended on December 27, 2009, in the text - Code of Criminal Procedure of the Russian Federation).
Federal Law No. 131-FZ of 06.10.2003 "On general principles organizations of local self-government in the Russian Federation" (as amended on November 28, 2009, in the text - the Law on the principles of local self-government).
Law of the Russian Federation of July 21, 1993 N 5485-1 "On State Secrets" (as amended on July 18, 2009, in the text - the Law on State Secrets).
Federal Law of July 29, 2004 N 98-FZ "On Trade Secrets" (as amended on July 24, 2007, in the text - the Law on Trade Secrets).
Decree of the President of the Russian Federation of November 30, 1995 N 1203 "On approval of the List of information classified as state secrets" (as amended on September 30, 2009, in the text - Decree on the List of information classified as state secrets).
Decree of the President of the Russian Federation of March 6, 1997 N 188 "On approval of the List of confidential information" (as amended on September 23, 2005, in the text - the List of confidential information).
Decree of the Government of the Russian Federation of October 28, 1995 N 1050 "On approval of the Instruction on the procedure for admitting officials and citizens of the Russian Federation to state secrets" (as amended on May 18, 2009, in the text - Instruction on admitting to state secrets).
Decree of the Government of the RSFSR of December 5, 1991 N 35 "On the list of information that cannot constitute a commercial secret" (as amended on October 3, 2002, in the text - the List of information that does not constitute a commercial secret).
Decree of the Plenum of the Supreme Court of the RSFSR of 04.05.1990 N 4 "On the practice of consideration by the courts of the Russian Federation of cases on limiting the legal capacity of citizens who abuse alcohol and drugs" (lost force).
This situation is by no means unique. All of the above fully applies to such prohibitions associated with the passage of civil service, such as:
Replacing a civil service position in the event of:
a) election or appointment to public office;
B) election to an elective position in a local self-government body;
C) election to a paid elective position in a trade union body, including in an elected body of a primary trade union organization established in a state body;
Carry out business activities;
Acquire, in cases established by federal law, securities on which income can be received;
To be an attorney or representative for third parties in the state body in which he replaces the position of the civil service, unless otherwise provided by federal laws.
In this regard, it seems to us that it is necessary to provide for the obligation of a citizen admitted to the civil service, to eliminate the existing violations of the prohibitions associated with its passage, and to establish the deadlines for the fulfillment of this obligation.
Restriction: incapacity
Let us consider in more detail the restrictions associated with entering the state civil service and its passage, the list of which is provided for in Art. 16 of the Civil Service Law. It must be said that this list has practically not undergone any changes compared to the one established in Art. 21 of the Law on the fundamentals of public service. The objectives of the legislative consolidation of such restrictions are:
Ensuring effective professional activity on the execution of the powers of state bodies;
Establishment of an obstacle to possible abuse of official position;
Creation of conditions for the independence of performance from pressure groups;
Implementation by civil servants of their rights and legitimate interests, etc. .
Let us analyze the restrictions established by the legislator in terms of their compliance with the specified tasks.
First of all, a citizen may be denied admission to the state civil service due to his incapacity or limited legal capacity. According to Art. 29 of the Civil Code of the Russian Federation, a citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be recognized as legally incompetent by a court decision. The procedure for recognizing a citizen as incompetent is fixed by civil procedural legislation, namely Ch. 31 Code of Civil Procedure of the Russian Federation.
In accordance with Art. 281 of the Code of Civil Procedure of the Russian Federation, a case on recognizing a citizen as legally incompetent can be initiated in court solely on the basis of an application from members of his family, close relatives (parents, children, brothers, sisters), a guardianship authority or a psychiatric or neuropsychiatric institution. It should be noted that, according to the Regulations on the competition, a citizen entering the civil service, among other documents, is required to submit a certificate of the absence of a disease that prevents him from performing the civil service.
In other words, such a citizen must undergo a mandatory medical examination (although the Civil Service Law itself does not contain such a requirement). However, such a medical examination does not include a psychiatric examination, which is carried out in accordance with the Psychiatric Care Act.
In the Russian Federation, the Law of the RSFSR of October 18, 1991 N 1761-1 "On the Rehabilitation of Victims of Political Repressions" (as amended on July 1, 2005) officially recognized that placement for compulsory treatment in psychiatric hospitals in Soviet period of our history was used by the state for political reasons, that is, it was political repression. In this regard, the current legislation strictly regulates the grounds and procedure for a psychiatric examination of a citizen. In addition, it should be noted that the presence of a mental illness in itself cannot be grounds for refusing admission to public service. The court may recognize a citizen as legally incompetent only when the citizen, due to mental illness, is deprived of the ability to understand the meaning of his actions or to control them.
A somewhat different meaning is the institution of disability, provided for by civil law. According to Art. 30 of the Civil Code of the Russian Federation, a citizen may be limited in legal capacity if, due to the abuse of alcohol or drugs, he puts his family in a difficult financial situation. This provision is primarily aimed at protecting the rights and legally protected interests of family members of persons who abuse alcohol or drugs.
The legislator does not make the possibility of limiting the legal capacity of a citizen dependent on recognizing him as a chronic alcoholic or drug addict. The abuse of alcoholic beverages or narcotic drugs, which gives grounds for limiting the legal capacity of a citizen, is such excessive or systematic use that is in conflict with the interests of his family and entails unbearable expenses of money for their acquisition, which causes material difficulties and puts the family in difficult situation.
In this regard, the restriction of the legal capacity of a citizen involves depriving him of the right to perform the following actions without the consent of the trustee:
Sell, donate, bequeath, exchange, buy property, as well as make other transactions for the disposal of property, with the exception of small household ones;
Directly receive wages, pensions and other types of income (author's fees, remuneration for discoveries, inventions, earnings on the collective farm, amounts due for the performance of work under a contract, all kinds of benefits, etc.).
In other words, this rule is designed to protect the interests of the family, but not the public service. And although it is far from the most actual problem related to the realization of the right to equal access to public service, this restriction should be recognized as little justified. The dismissal of a citizen from the state civil service in connection with the recognition of his limited capacity, on the contrary, infringes on the interests of his family, since it deprives such a citizen (and, consequently, his family) of earnings. The interests of the public service in this case another rule is designed to protect, which provides for the possibility of terminating a service contract with a civil servant due to the appearance in the public service (even once) in a state of alcohol, drugs or other intoxication (Article 37 of the Civil Service Law).
In connection with all of the above, it seems to us appropriate to amend the current legislation, excluding the restriction of a citizen's legal capacity from among the restrictions associated with public service.
Restriction: condemnation to punishment
Another circumstance in the presence of which a citizen may be denied admission to public service is his conviction to a punishment that excludes the possibility of performing official duties, according to a court verdict that has entered into legal force, as well as in the event that there is an outstanding or unpaid in the established federal criminal record by law. The law on the fundamentals of public service contained a slightly different rule: a citizen could not be accepted into the public service and be in the public service if he was deprived of the right to hold public positions in the public service for a period of certain period a court decision that has entered into force.
Note that according to Art. 44 of the Criminal Code of the Russian Federation, penalties that exclude the possibility of performing official duties include deprivation of the right to hold certain positions or engage in certain activities; arrest for a period of 1 to 6 months; restriction of freedom; deprivation of liberty. When these types of punishments are imposed, a citizen cannot be accepted into the civil service, and the civil servant is dismissed from the civil service.
Only a court verdict that has entered into force can serve as grounds for refusing to be admitted to public service. For example, the involvement of a person as an accused in a case cannot give rise to the indicated consequences. According to the Code of Criminal Procedure of the Russian Federation, the verdict of the court of first instance enters into force upon the expiration of the period for its appeal, if it has not been appealed by the parties (part 1 of article 390). An appeal against the verdict of the court of first instance may be filed with a higher court within 10 days from the date of pronouncement of the verdict, and by convicted persons held in custody - within the same period from the day they were handed a copy of the verdict (part 1 of article 356). At the same time, it cannot be ignored that, in accordance with Art. 402 of the Code of Criminal Procedure of the Russian Federation, a court verdict that has entered into legal force can be appealed in the supervisory procedure.
It should be noted that paragraph 2 of Art. 16 of the Civil Service Law, in contrast to the previous legislation, calls the presence of an unexpunged or outstanding criminal record as the basis for refusing admission to the civil service. In accordance with Art. 86 of the Criminal Code of the Russian Federation, a person convicted of a crime is considered to be convicted from the day the conviction of the court enters into legal force until the cancellation or removal of the conviction. Judgment expires:
In relation to persons conditionally convicted - after the expiration of the probationary period;
In relation to persons sentenced to milder types of punishment than deprivation of liberty - after one year after serving or executing the punishment;
For persons sentenced to deprivation of liberty, the conviction is canceled after 3 to 8 years after serving the sentence (depending on the gravity of the crime committed).
Thus, a conviction to a punishment that does not exclude the possibility of performing the duties of the public service is also the basis for refusing admission to the public service or dismissal from the public service. As noted in the specialized literature, in fact, any guilty verdict that has entered into legal force is a restriction for the admission of a citizen to the state civil service and the presence of a state civil servant in the civil service. In this regard, it is not entirely clear why to separately indicate as a circumstance preventing entry into public service, conviction to a punishment that excludes the possibility of performing official duties. In other words, the first part of this rule is special case the second part, which, in our opinion, demonstrates the lack of legal technique.
In addition, this rule seems to be highly debatable on its merits. It should be noted that a similar provision of the Law on the principles of local self-government in relation to the heads of local administrations caused an ambiguous attitude on the part of specialists. In particular, as one of the grounds for the early termination of the powers of the head of the local administration, the aforementioned Law named the entry into force of a court conviction against him (clause 6, part 6, article 36).
In this regard, some authors noted that this rule should take into account the gravity of the committed act, since the crimes provided for by the Criminal Code of the Russian Federation vary greatly in terms of the degree of public danger. It is quite logical, for example, that the head of the municipality, convicted under Art. 285 of the Criminal Code of the Russian Federation (abuse of official powers) or under Art. 159 (fraud), can no longer perform his duties. On the contrary, it seems that the commission of a crime of minor gravity, especially through negligence, if it is not punished in the form of deprivation or restriction of liberty, should not interfere with the exercise of the powers of the head of the municipality. We believe that this argumentation is quite applicable to this case as well.
In addition, as some authors rightly point out, this restriction is not consistent with the requirements of Art. Art. 32, 55 of the Constitution of the Russian Federation and the provisions of the Criminal Code of the Russian Federation. So, S. V. Naimushin believes that the prohibition of filling a civil service position can be directly related to the application of only such punishment as deprivation of the right to hold certain positions or engage in certain activities (Article 47 of the Criminal Code of the Russian Federation). When applying a number of other types of punishment, the prohibition of filling a civil service position is not a goal, but a consequence of the restriction of other rights and freedoms of a person and a citizen (for example, imprisonment). With other types of punishment, the ban on filling a civil service position is neither an end in itself nor a consequence of the restriction of other human rights and freedoms. So, when imposing such punishments as compulsory work, which consists in the execution by the convict in his free time of the main work or study of free socially useful work, a fine, the presence of work for a civil servant in the form of performing duties in the position of the state civil service in accordance with the official regulations is decisive factor in determining the type of punishment.
In connection with all of the above, it seems to us appropriate to amend the Federal Law "On the State Civil Service of the Russian Federation", either by excluding the presence of an unexpunged or outstanding conviction from the list of restrictions related to public service, or by linking this restriction with the degree of public danger of the crime committed.
Note. I suggest...
Amend the Federal Law "On the State Civil Service of the Russian Federation".
Supplement Art. 16 "Restrictions related to the civil service", stating it as follows:
"1. A citizen cannot be accepted into the civil service, and a civil servant cannot be in the civil service if:
2) his conviction to a punishment that precludes the possibility of performing official duties in a position of public service (civil service), by a court verdict that has entered into legal force, and also in the event of a conviction for committing a serious or particularly serious crime."
Refusal to accept a citizen for public service
The basis for refusing to accept a citizen for public service or dismissal of a civil servant from public service is the refusal to undergo the procedure for obtaining access to information constituting a state and other secret protected by federal law, if the performance of official duties is associated with the use of such information.
It must be said that the obligation to non-disclose information constituting state and other secrets protected by federal law, and official information in accordance with Art. 24 of the Civil Service Law refers to optional or additional terms of a service contract, i.e. those that can be included in the contract by agreement of the parties. However, in the event that the performance of duties in the relevant position involves working with information constituting a state or other secret protected by law, access to such information becomes a prerequisite for filling the corresponding position.
According to Art. 2 of the Law on State Secrets, state secrets are information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational-search activities, the dissemination of which may harm the security of the Russian Federation. List of information constituting state secret, was approved by the President of the Russian Federation. At the same time, within the meaning of the Law on State Secrets, the President of the Russian Federation should prepare a list of positions, the performance of official duties for which is associated with the use of such information. To date, there is no corresponding act.
The Appendix to the Instruction on Admission to State Secrets provides a form model agreement on registration of access to state secrets.
"Other secrets protected by federal law" primarily include official and commercial secrets. The concept and criteria of official and commercial secrets are contained in Art. 139 of the Civil Code of the Russian Federation. Information constitutes an official or commercial secret under the following conditions:
When it has actual or potential commercial value due to its unknown to third parties;
If there is no free access to it legally;
The information owner takes measures to protect its confidentiality.
The Law on Trade Secrets regulates the procedure for establishing a trade secret regime, obtaining access to it, etc., but only within the framework of labor and civil law relations. The question of the applicability of the provisions of this Law regarding the establishment of a trade secret regime in the framework of public-service relations remains open. The literature has repeatedly noted the problems that arise in connection with the attempts of the legislator to create a "labor code for a civil servant" (in particular, to abstract from the terminology of labor legislation, etc.).
Because Art. 73 of the Civil Service Law provides for the subsidiary application of legislation containing labor law norms to public-service relations, then these norms governing the protection of trade secrets in the framework of labor relations should also be applied in this case.
It should be noted that the current legislation establishes a List of information that is not a commercial secret (as a rule, of a public nature).
The current legislation does not contain a list of information constituting an official or other secret protected by law. In this case, one should, apparently, be guided by the List of confidential information. The information included there does not belong to state secrets, but due to their special nature they are not subject to disclosure. In particular, it states:
Information about the facts, events and circumstances of the private life of a citizen, allowing to identify his personality (personal data);
Information constituting the secret of the investigation and legal proceedings;
Official information, access to which is limited by public authorities (official secret);
Information related to professional activities, access to which is limited in accordance with the Constitution of the Russian Federation and federal laws (medical, notarial, attorney-client, correspondence, telephone conversations, postal items, telegraphic or other messages, etc.);
Information related to commercial activities, access to which is restricted in accordance with the Civil Code of the Russian Federation and federal laws (trade secret);
Information about the essence of an invention, utility model or industrial design before the official publication of information about them.
First of all, it should be noted that this restriction as a whole seems to be quite reasonable from the point of view of the goals and objectives of the public service. At the same time, if the procedure for issuing access to state and commercial secrets is provided for by the relevant federal laws, then access to official and other secrets protected by law is not actually regulated by the current legislation.
In addition, as the Constitutional Court of the Russian Federation has repeatedly noted, the introduction of additional restrictions on civil servants is compensated by providing them additional guarantees and benefits, which are designed to compensate for the damage caused to the principle of equality by the introduction of certain restrictions on their rights and freedoms. In this regard, the Law on State Secrets provides for a wide range of social guarantees that are provided to citizens and officials admitted to state secrets (percentage allowances for wages, the preferential right to remain at work in the event of the liquidation of an organization or a reduction in staff, etc.). In relation to persons admitted to trade secrets, the Law on Trade Secrets does not provide for any additional guarantees and compensations.
Bibliography
1. Commentary on the Federal Law "On the State Civil Service of the Russian Federation" / Ed. S. E. Chayanova, E. G. Lipatova. M.: Teis, 2005. S. 22.
3. Commentary to the Federal Law of October 6, 2003 N 131-FZ. "On the general principles of the organization of local self-government in the Russian Federation" / Ed. S. E. Chayanova. M.: Teis, 2005.
7. Presnyakov M. V., Channov S. E. Commentary to the Federal Law of July 29, 2004 N 98-FZ "On Trade Secrets" (item-by-article) // SPS "ConsultantPlus", 2006.
It tells about the shortcomings of legal norms that carry prohibitions and restrictions for civil servants, as well as those entering the civil service.
Limitation: disease
A circumstance that prevents a citizen from entering the civil service, and in relation to a civil servant - from performing the civil service, is the presence of a certain disease, confirmed by the conclusion of a medical institution. The list of such diseases, the form of a medical report, as well as the procedure for undergoing a medical examination must be established by the Government of the Russian Federation. Currently, there is no such act of the Government of the Russian Federation. Lists of diseases that prevent the performance of certain jobs or the replacement of certain positions are currently adopted on an ad hoc basis (i.e., for a specific case) in relation to narrow categories of workers or employees, for example, the List of diseases that prevent work in a representative office , List of psychiatric contraindications, List of medical contraindications for working with state secrets.
Actually, the very idea of normative fixing of medical contraindications for filling any position in the civil service seems doubtful.
In order to implement this restriction, the Regulations on the competition establish the obligation of a citizen entering the civil service, among other documents, to submit a certificate of the absence of a disease preventing him from performing the civil service.
Note. Prohibitions and restrictions of the civil service in the regulations
Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation" (as amended on December 17, 2009, in the text - the Civil Service Law).
Law of the Russian Federation of July 2, 1992 N 3185-1 "On psychiatric care and guarantees of the rights of citizens in its provision" (as amended on August 22, 2004, as amended on February 27, 2009, in the text - the Law on Psychiatric Care).
Decree of the President of the Russian Federation of 01.02.2005 N 112 "On the competition for filling a vacant position in the state civil service of the Russian Federation" (in the text - Regulations on the competition).
Decree of the Government of the Russian Federation of 10.04.2003 N 208 "On approval of the List of diseases that prevent work in the representative office of the Russian Federation abroad" (as amended on 01.02.2005, in the text - List of diseases that prevent work in the representative office).
Decree of the Government of the Russian Federation of April 28, 1993 N 377 "On the implementation of the Law of the Russian Federation "On psychiatric care and guarantees of the rights of citizens in its provision" (together with the List of medical psychiatric contraindications for certain types of professional activities and activities associated with a source of increased danger) ( edition of 23.09.2002, in the text - List of psychiatric contraindications).
Order of the Ministry of Health of Russia dated March 16, 1999 N 83 "On the List of Medical Contraindications for Working with Information Constituting State Secrets", in the text - the List of Medical Contraindications for Working with State Secrets.
Limitation: joint service of relatives
Clause 5, Part 1, Art. 16 of the Law on the Civil Service establishes a limitation, traditional for the legislation on the civil service, regarding the joint service of relatives, if the replacement of a civil service position is associated with the direct subordination or control of one of them to another.
Previously, such a rule was enshrined in the Labor Code of the Russian Federation in relation to the joint service of relatives at any state or municipal enterprise, institution, organization. current Labor Code does not contain such a restriction, and today it is typical only for the legislation on public service.
In general, from the standpoint of the goals and objectives of the public service, this restriction seems to us to be quite justified. However, in practice, this rule sometimes causes difficulties in enforcement. For example, it is not uncommon for civil servants who are directly subordinated to marry and, accordingly, can no longer fill their previous positions. The current legislation does not contain specific rules for resolving this situation, but paragraph 13 of Part 1 of Art. 33 of the Civil Service Law provides for the possibility of terminating a service contract due to non-compliance with restrictions and non-fulfillment of obligations related to the civil service.
In the situation described, the question arises: which of these civil servants should be fired? Theoretically, it is necessary to terminate the service contract with both of them, but the expediency of such a decision is very doubtful. In addition, in a number of situations, it is possible to transfer a civil servant to another position in the civil service, which will no longer be associated with direct subordination to a relative.
In our opinion, these and many other issues related to this restriction should be legally regulated in a special by-law. For example, in the Republic of Turkmenistan, the Law "On Restriction of the Joint Service of Relatives in the Bodies of State Power and Administration" has been adopted and is in force. This Law establishes the rules for the transfer and dismissal from the public service of the Republic of Turkmenistan of persons who are closely related or related to each other (parents, spouses, brothers, sisters, sons, daughters, as well as parents, brothers, sisters and children of spouses), if their service associated with the direct subordination or control of one of them to another.
Paragraphs 6 and 7 of Part 1 of Art. 16 allow denial of admission to the civil service (and in relation to a civil servant - dismissal from the civil service) in case of renunciation of the citizenship of the Russian Federation or acquisition of citizenship of another state. This restriction was considered by us when discussing the conditions for entering the civil service.
false information
As a restriction associated with the passage of the state civil service, the Law calls the submission of forged documents or knowingly false information when entering the civil service. It must be said that the previous Federal Law of July 31, 1995 N 119-FZ "On the Fundamentals of the Public Service of the Russian Federation" did not provide for such a restriction (just as a restriction). Some researchers believe that the provision of knowingly false information is not essentially a restriction associated with public service. So, S. V. Naymushin points out that, firstly, when submitting forged documents or false information that relates to age, citizenship of the Russian Federation, qualification requirements, refusal to enter the civil service should primarily be based on non-compliance with qualifications requirements for a vacant position in the civil service, in the presence of restrictions established by the legislation of the Russian Federation on the state civil service, objectively preventing entry into the service or being in it, etc. to the civil service or the conclusion of a service contract in relation to a person already in the service, the subsequent termination of the service contract, the release of the employee from the position to be replaced and the dismissal from the state civil service are carried out at the discretion of the representative of the employer, i.e. e. it is obvious that this fact in itself is not a circumstance that objectively prevents entry into the civil service or being in it. We will return to this second argument below (in particular, we believe that the Law, due to low legal technique, contains a number of repetitive and intersecting grounds for terminating a service contract).
In our opinion, the main drawback of this norm is the possibility of its broad interpretation: the Law does not indicate exactly what deliberately false information is meant. In that case when we are talking on information affecting the appointment of a person to the relevant position, this restriction will be unconditionally justified. If we are talking about insignificant information or information that is not important for admission to the public service (the presence of children, place of birth, etc.), a refusal to be admitted to the public service on this basis should hardly be considered appropriate. I would like to note that the submission of forged documents or knowingly false information when applying for a job as a basis for terminating an employment contract at the initiative of the employer was previously provided for in clause 11, part 1, art. 81 of the Labor Code of the Russian Federation. It is significant that in the new version (dated June 30, 2006) the Labor Code provides for the possibility of dismissal only for the submission of false documents, but not for the provision of deliberately false information.
Finally, the Civil Service Law enshrines the traditional for the legislation governing public-service relations, the restriction associated with the failure to provide or the submission of knowingly false information about income, property and obligations of a property nature. A citizen, upon entering the civil service and then annually, is obliged to provide the specified information to the representative of the employer. Interestingly, the Law does not provide for denial of admission to the civil service (or dismissal from the civil service) due to the provision of incomplete information about income or property.
Thus, the restrictions provided for by the current legislation related to entering the state civil service and its passage are very far from perfect and are not always due to the peculiarities of this type of professional activity. Given that these norms are mandatory, the presence of the defects noted above can seriously and not always justifiably restrict the constitutional right of citizens to equal access to public service.
Bibliography
1. Commentary on the Federal Law "On the State Civil Service of the Russian Federation" / Ed. S. E. Channova, E. G. Lipatova. M.: Teis, 2005. S. 22.
2. Naimushin S. V. Restrictions and prohibitions on the state civil service (legal issues) // Official. 2005. N 4 (38).
3. Commentary to the Federal Law of October 6, 2003 N 131-FZ "On the General Principles of the Organization of Local Self-Government in the Russian Federation" / Ed. S. E. Channova. M.: Teis, 2005.
4. Ivanov S. A., Ivankina T. V., Kurennoy A. M., Mavrin S. P., Khokhlov E. B. Legal regulation of relations in the civil service // Ezh-Jurist. 2004. N 6. S. 10.
5. Chikanova L. A. Legal regulation of official relations in the state civil service: questions of theory and practice // Journal of Russian law. 2005. N 4.
6. Presnyakov M. V., Channov S. E. Problems of legal regulation of public service relations // Labor Law. 2005. N 3.
7. Presnyakov M. V., Channov S. E. Commentary to the Federal Law of July 29, 2004 N 98-FZ "On Trade Secrets" (item-by-article).
M. Presnyakov
Chairs of Civil Procedure,
Labor and environmental law
Volga Academy
public service
Them. P. A. Stolypin
Signed for print
Article 16Civil service restrictions
GUARANTEE:
See comments to Article 16 of this Federal Law
1. A citizen cannot be admitted to , and a civil servant cannot be in the civil service if:
1) recognition his legally incompetent or limited legal capacity by a court decision that has entered into legal force;
2) his conviction to a punishment that excludes the possibility of performing official duties in a position of public service (civil service), according to a court verdict that has entered into legal force, as well as in the event that there is an unremoved or unpaid in the prescribedfederal law criminal record;
3) refusal to go through the procedure for issuing access to information constituting state and other protectedfederal law secrecy, if the performance of official duties in the position of the civil service, for which the citizen claims, or in the position of the civil service occupied by a civil servant, is associated with the use of such information;
Information about changes:
federal law No. 317-FZ of November 25, 2013 Paragraph 4 of Part 1 of Article 16 of this Federal Law was amended
4) the presence of a disease that prevents entry into the civil service or its passage and confirmed by the conclusion of a medical organization.Order passing medical examinations,scroll such diseases andthe form the conclusions of a medical organization are established by the federal executive body authorized by the Government of the Russian Federation;
Information about changes:
federal law No. 329-FZ of November 21, 2011 Paragraph 5 of Part 1 of Article 16 of this Federal Law was amended
5) close relationship or property (parents, spouses, children, brothers, sisters, as well as brothers, sisters, parents, children of spouses and spouses of children) with if the replacement of a civil service position is associated with the direct subordination or control of one of them to another;
6) renunciation of citizenship of the Russian Federation or acquisition of citizenship of another state;
7) citizenship of another state (other states), unless otherwise provided by an international treaty of the Russian Federation;
8) submission of forged documents or deliberately false information when entering the civil service;
Information about changes:
federal law No. 329-FZ dated November 21, 2011 Paragraph 9 of Part 1 of Article 16 of this Federal Law was amended
9) failure to submit the established information or submission of deliberately false information about income, property and obligations of a property nature when entering the civil service;
Information about changes:
federal law dated December 3, 2012 N 231-FZ amendments were made to paragraph 10 of part 1 of article 16, coming into force since January 1, 2013
10) loss by the representative of the employer of confidence in the civil servant in cases of non-compliance with restrictions and prohibitions, requirements for the prevention or settlement of conflicts of interest and failure to fulfill obligations established in order to combat corruption by this Federal Law, Federal Law of December 25, 2008 N 273-FZ "On combating corruption" and otherfederal laws ;
Information about changes:
Item 11 modified from August 6, 2017 - the federal law dated July 26, 2017 N 192-FZ
Changesspread for legal relations that arose from January 1, 2014.
11) recognizing it as not passed military service on conscription, without legal grounds, in accordance with the conclusion of the conscription commission (with the exception of citizens who have completed military service under a contract) - within 10 years from the date of expiration of the period established for appealing against the said conclusion to the conscription commission of the corresponding subject of the Russian Federation, and if the said conclusion and (or) the decision of the draft commission of the corresponding subject of the Russian Federation on the citizen’s complaint against the said conclusion were appealed to the court, - within 10 years from the date of entry into force of the court decision, which recognized that the rights of the citizen when issuing the said conclusion and (or) the decisions of the draft commission of the corresponding subject of the Russian Federation on the citizen's complaint about the said conclusion were not violated;
Information about changes:
federal law No. 224-FZ of June 30, 2016, Part 1 of Article 16 of this Federal Law was supplemented by Clause 12, coming into force from July 1, 2016
12) failure to provide information provided for of this federal law.
2. Other restrictions associated with entering the civil service and its passage, with the exception of the restrictions specified in of this article are establishedfederal laws .
3. Responsibility for non-compliance with the restrictions provided for of this article is established by this Federal Law and other federal laws.
Article 17Prohibitions related to civil service
GUARANTEE:
See comments to Article 17 of this Federal Law
1. In connection with the passage of civil service prohibited:
1) expired from January 1, 2015;
Information about changes:
see textparagraph 1 of part 1 of Article 17
2) fill a position when:
Information about changes:
federal law No. 1-FZ of January 29, 2010, subparagraph "a" of paragraph 2 of part 1 of Article 17 of this Federal Law is reworded
a) election or appointment to a public office, with the exception of the case established bypart two of Article 6 Federal Constitutional Law of December 17, 1997 N 2-FKZ "On the Government of the Russian Federation";
b) election to an elective position in a local self-government body;
c) election to a paid elective position in a body of a trade union, including in an elected body of a primary trade union organization established in a state body;
Information about changes:
Item 3 changed from January 1, 2019 - the federal law dated July 29, 2017 N 217-FZ
3) engage in entrepreneurial activities personally or through proxies, participate in the management of a commercial organization or in the management of a non-profit organization (with the exception of participation in the management of a political party; participation on a gratuitous basis in the management of a trade union body, including an elected body of a primary trade union organization established by in a state body; participation in a congress (conference) or general meeting of another public organization, housing, housing construction, garage cooperatives, partnerships of property owners; participation on a gratuitous basis in the management of these non-profit organizations (except for a political party and a body of a trade union, including an elected body of a primary trade union organization established in a state body) as a sole executive body or joining their collegiate management bodies with the permission of a representative of the employer, received in the manner prescribed by a regulatory legal act of a state body), except for participation on a gratuitous basis in the activities of a collegial body of an organization on the basis of an act of the President of the Russian Federation or the Government of the Russian Federation; representation on a gratuitous basis of the interests of the Russian Federation or a constituent entity of the Russian Federation in the management bodies and the audit commission of an organization whose founder (shareholder, participant) is the Russian Federation or a constituent entity of the Russian Federation, in accordance with the regulatory legal acts of the Government of the Russian Federation or regulatory legal acts of a constituent entity of the Russian Federation that determine the procedure for exercising, on behalf of the Russian Federation or a constituent entity of the Russian Federation, the powers of a founder of an organization or managing federally owned or owned by a constituent entity of the Russian Federation shares (stakes in authorized capital); other cases stipulated by federal laws;
4) acquire, in the cases established by federal law, securities on which income may be received;
5) be an attorney or a representative for third parties in the state body in which he replaces the position of the civil service, unless otherwise provided by this Federal Law and other federal laws;
Information about changes:
federal law No. 280-FZ of December 25, 2008 Paragraph 6 of Part 1 of Article 17 of this Federal Law was amended
6) receive in connection with the performance of official duties remuneration from individuals and legal entities (gifts, monetary remuneration, loans, services, payment for entertainment, recreation, transportation costs and other remuneration). Gifts received by a civil servant in connection with protocol events, business trips and other official events are recognized as federal property and the property of a constituent entity of the Russian Federation, respectively, and are transferred by a civil servant under an act to the state body in which he replaces the position of the civil service, with the exception of cases establishedCivil Code Russian Federation. A civil servant who has handed over a gift received by him in connection with a protocol event, business trip or other official event may redeem it in the manner established by the regulatory legal acts of the Russian Federation;
Information about changes:
federal law No. 329-FZ of November 21, 2011, Clause 7 of Part 1 of Article 17 of this Federal Law is reworded
7) travel in connection with the performance of official duties outside the territory of the Russian Federation at the expense of individuals and legal entities, with the exception of business trips carried out in accordance with the legislation of the Russian Federation, by agreement of the state bodies of the Russian Federation, state bodies of the constituent entities of the Russian Federation or municipal bodies with state or municipal bodies of foreign states, international or foreign organizations;
8) use for purposes not related to the performance of official duties, means of material, technical and other support, other state property, as well as transfer them to other persons;
9) disclose or use for purposes not related to the civil service, information classified in accordance with federal law as confidential information, or proprietary information that became known to him in connection with the performance of official duties;
GUARANTEE:
For the constitutional and legal meaning of the provisions of Clause 10 of Part 1 of Article 17 of this Federal Law, seeDecree of the Constitutional Court of the Russian Federation of June 30, 2011 N 14-P
10) allow public statements, judgments and assessments, including in the media, regarding the activities of state bodies, their leaders, including decisions of a higher state body or state body in which a civil servant replaces a civil service position, if this is not included in his official duties;
11) take without written permission awards, honorary and special titles (with the exception of scientific ones) of foreign states, international organizations, as well as political parties, other public associations and religious associations, if his official duties include interaction with these organizations and associations;
GUARANTEE:
Cm. Position on the procedure for the acceptance by persons holding certain state positions of the Russian Federation, certain positions of the federal state service, honorary and special titles, awards and other insignia of foreign states, international organizations, political parties, other public associations and other organizations, approvedDecree of the President of the Russian Federation of October 10, 2015 N 506
12) use the advantages of their official position for pre-election campaigning, as well as for campaigning on referendum issues;
13) use official powers in the interests of political parties, other public associations, religious associations and other organizations, as well as publicly express their attitude towards these associations and organizations as a civil servant, if this is not part of his official duties;
14) create structures of political parties, other public associations (with the exception of trade unions, veterans and other bodies of public amateur performance) and religious associations in state bodies or facilitate the creation of these structures;
15) terminate the performance of official duties in order to resolve an official dispute;
Information about changes:
federal law No. 24-FZ of March 2, 2007 Part 1 of Article 17 of this Federal Law was supplemented by clause 16, coming into force official publication
16) be a member of the governing bodies, boards of trustees or supervisory boards, other bodies of foreign non-profit non-governmental organizations and their structural subdivisions operating on the territory of the Russian Federation, unless otherwise provided by an international treaty of the Russian Federation or the legislation of the Russian Federation;
Information about changes:
federal law No. 24-FZ of March 2, 2007 Part 1 of Article 17 of this Federal Law was supplemented by clause 17, coming into force thirty days after the day official publication named federal law
17) engage in paid activities, financed exclusively at the expense of foreign states, international and foreign organizations, without the written permission of the representative of the employer, foreign citizens and stateless persons, unless otherwise provided by an international treaty of the Russian Federation or the legislation of the Russian Federation.
Information about changes:
federal law No. 505-FZ of December 28, 2016, Part 1.1 of Article 17 of this Federal Law was amended, coming into force one hundred and eighty days after the day official publication named federal law
1.1. A civil servant, his wife (husband) and minor children are prohibited from opening and having accounts (deposits), keeping cash and valuables in foreign banks located outside the territory of the Russian Federation, owning and (or) using foreign financial instruments in cases provided forfederal law "On the prohibition of certain categories of persons to open and have accounts (deposits), keep cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments." At the same time, the concept of "foreign financial instruments" is used in this Federal Law in the meaning determined by the specifiedfederal law.
Information about changes:
federal law No. 285-FZ of October 5, 2015, Part 2 of Article 17 of this Federal Law was amended
2. In the event that the possession by a civil servant of securities (participatory interests, shares in the authorized (share) capital of organizations) leads or may lead to a conflict of interest, the civil servant is obligedhand over securities belonging to him (participation shares, shares in the authorized (share) capital of organizations) in trust management in accordance withcivil law Russian Federation.
Information about changes:
federal law No. 329-FZ of November 21, 2011 Part 3 of Article 17 of this Federal Law is reworded
3. A citizen after dismissal from the civil service is not entitled to disclose or use in the interests of organizations or individuals information of a confidential nature or official information that became known to him in connection with the performance of official duties.
Information about changes:
federal law No. 329-FZ of November 21, 2011, Article 17 of this Federal Law was supplemented with part 3.1
3.1. A citizen who has filled a civil service position included in the list of positions established by Russian Federation, within two years after dismissal from the civil service, is not entitled, without the consent of the relevantcommissions on compliance with the requirements for official conduct of public civil servants and the settlement of conflicts of interest, to fill positions in the organization under the terms of an employment contract and (or) perform work in this organization (provide services to this organization) under the terms of a civil law contract (civil law contracts) in cases provided by federal laws, if certain functions government controlled This organization was part of the official (service) duties of a civil servant. The consent of the relevant commission on compliance with the requirements for official conduct of civil servants and the settlement of conflicts of interest is given in the manner established bynormative legal acts Russian Federation.
4. Responsibility for non-compliance with the prohibitions provided for by this article is established by this Federal Law and other federal laws.
Article 18Requirements for official behavior of a civil servant
GUARANTEE:
See comments to Article 18 of this Federal Law
Cm. General principles official conduct of civil servants, approvedDecree of the President of the Russian Federation of August 12, 2002 N 885
Cm. model code ethics and official conduct of federal state civil servants of the apparatuses of federal courts of general jurisdiction and departments (departments) of the Judicial Department in the constituent entities of the Russian Federation, approved civil servant must:
1) perform official duties conscientiously, at a high professional level;
2) proceed from the fact that the recognition, observance and protection of the rights and freedoms of man and citizen determine the meaning and content of his professional service activities;
3) to carry out professional service activities within the framework of the competence of the state body established by the legislation of the Russian Federation;
Information about changes:
federal law No. 284-FZ of October 22, 2013, Clause 4 of Part 1 of Article 18 of this Federal Law is reworded
4) ensure equal, impartial treatment of all individuals and legal entities, do not give preference to any public or religious associations, professional or social groups, citizens and organizations and not allow bias against such associations, groups, citizens and organizations;
5) not to take actions related to the influence of any personal, property (financial) and other interests that impede the conscientious performance of official duties;
6) comply with the restrictions established by this Federal Law and other federal laws for civil servants;
7) observe neutrality, which excludes the possibility of influencing their professional service activities by the decisions of political parties, other public associations, religious associations and other organizations;
8) not to commit acts discrediting his honor and dignity;
9) show correctness in dealing with citizens;
10) show respect for the moral customs and traditions of the peoples of the Russian Federation;civil service categories , is obliged to prevent cases of coercion of civil servants to participate in the activities of political parties, other public associations and religious associations.