Strasbourg, 19 January 2000

Report on compliance with the principles of th European Charter of local self-government by the constituent entities of the Russian Federation

Expert consultant : Michel Lesage

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Introduction

The violations of federal legislation on local self-government by the constituent entities of the Russian Federation are a subject of concern with regard to the application of the European Charter of Local Self-Government. Relatively speaking, there have been many such violations noted by the Prokuratura (Public prosecution service), the Ministry of Justice, the Ministry of Nationalities and Federal Relations, and the Presidential Directorate for Local Self-Government Affairs. On the basis of this information, on 23 December 1999, the Secretary of the Congress of Municipal Entities of the Russian Federation forwarded to the President of the Congress of Local and Regional Authorities of Europe a 9-page memorandum on “violations of local self-government rights enshrined in the European Charter of Local Self-Government, the Constitution of the Russian Federation and federal legislation”, expressing the view that it would be extremely apposite at the present time for the Council of Europe to pursue its monitoring of the application of its recommendations, paying particular attention to the situation in the constituent entities of the Federation and to have the Bureau of the Congress look into the matter of the honouring by Russia of its international obligations with regard to the application of the European Charter of Local Self-Government.

At its meeting on 22-24 November, the Bureau tasked the consultant, Mr Michel LESAGE, with visiting Moscow in order to ascertain the facts concerning compliance by the constituent entities of the Russian Federation with the principles of the Charter.

This report is based on the information gathered during the talks held in Moscow on 22 and 23 December 1999, and on documents obtained during these talks (see the programme in Appendix I). A fuller report could be presented by the expert at a subsequent stage in the light of the Bureau’s conclusions.

1. Compliance by the Russian Federation with the European Charter of Local Self-Government

The report by the Presidential Directorate for Local Self-Government Affairs “on the problems of compliance by Russian Federation legislation (at both federal and constituent entity level) with the requirements of international treaties ratified by the Russian Federation in the field of local self-government, and the compliance by the legislation of the constituent entities of the Russian Federation with federal legislation” (20-12-99, 43 pages) clearly shows for each article of the Charter, that the federal law on the general principles governing the organisation of local self-government and other laws on local self-government on the whole reflect the provisions of the Charter. At the same time, it notes several gaps which it asks parliament to fill (cf part 3 of this report). In contrast, the situation is totally different as regards the constituent entities of the Federation.

2. Compliance by the constituent entities of the Federation with the European Charter of Local Self-Government and federal legislation on local self-government

The report lists, with examples, the types of violations most frequently encountered:

1) limitation, by means of regional legal acts, on local self-government in relation to matters falling exclusively under the competence of federal regulations;

2) limitation, by means of regional legal acts, of citizens’ rights to exercise local self-government, guaranteed by the Russian Constitution and federal legislation;

3) attribution of powers falling under the specific competence of local self-government to state organs of the territorial administrative units of the constituent entities of the Russian Federation;

4) transfer to local self-government organs of state powers without a corresponding transfer of the requisite material and financial resources;

5) exclusion of certain areas from the scope of local self-government legislation (in particular the stipulation that local self-government may be exercised exclusively within town boundaries.

A concrete example of the difficulties arising from the absence of any rules for appropriate financing of municipal authorities was given to us during our meeting with Mr Chipov by the representative of the municipality of Rylsk in region of Kursk¹.

3. Compliance with the European Charter of Local Self-Government and federal legislation on local self-government by the municipal authorities

In 1997 and the first half of 1998, public prosecutors filed objections to over 300 municipal statutes. They made more than 500 representations to local authority bodies and lodged 60 complaints before the courts at various levels. Following this action taken by the public prosecutors, several hundred statutes were able to be amended while still at the drafting stage.

The report of the Presidential Directorate for Local Self-Government Affairs notes (pp 31-32) that the large number of incompatibilities between federal and regional legislation on local self-government has a serious negative impact: the legal acts of municipal authorities taken on the basis of the provisions of regional legislation in question are among the legal norms which are incompatible with federal legislation.

4. Federal policy in support of local self-government

The federal authorities are perfectly aware of the need to uphold the law throughout the Russian Federation.

In the interview given in Yekaterinburg on 15 December 1999, Prime Minister Putin emphasised both the importance of self-government and the need for “regional and municipal egoism to submit to the higher public interest expressed by the law².”

In his article “Russia at the turn of the millennium”, released after his becoming acting President of Russia, V. Putin wrote in connection with constitutional problems: “the constitutional nature of laws in the making is a major problem in this respect. Russia currently operates over a thousand federal laws and several thousand laws of the republics, territories, regions and autonomous areas. Not all of them correspond to the above criterion. If the Justice Ministry, the prosecutor's office and the judiciary continue to be as slow in dealing with this matter as they are today, the mass of questionable or simply unconstitutional laws may become critical legally and politically. The constitutional safety of the state, the federal centre’s capabilities, the country's manageability and Russia's integrity would then be in jeopardy.”

At the same time, the federal authorities have drawn up a federal programme of assistance for local self-government.

4.1 Presidential decree of 15 October 1999 approving the “Fundamental provisions of state policy for developing local self-government in the Russian Federation”

These fundamental provisions highlight 9 current problems facing the establishment of local self-government in the Russian Federation. Seven of these concern regulations. First of all the decree refers to the fact that the regulations are inadequate:

- the discrepancies in and unsystematic nature of federal legislation on local self-government;

- the incomplete and inconsistent nature of legislation;

- inertia of the authorities of the constituent entities of the Russian Federation and the organs of local self-government, absence of prescriptive regulations at the corresponding level for issues related to the exercise of local self-government;

- absence of precise legal delimitation of attributions between state power level (federal and constituent entities) and local self-government organs.

It then addresses the inadequacy of protection mechanisms:

- failure to observe the legislation of the Russian Federation on local self-government;

- incomplete nature of court protection mechanisms with regard to local self-government;

- the fact that local self-government organs are unable to enforce their local self-government rights and the constitutional rights of citizens in the exercise of local self-government via the constitutional court procedure.

The two other problems relate to local self-government resources:

- inadequate guarantees for the economic and financial autonomy of municipal authorities, municipal property, the budget;

- shortage of qualified municipal managerial staff.

The 5^th part of the decree lists the ways and means of implementing state policy for developing local self-government in the Russian Federation. This presupposes the passing of laws and administrative and financial measures yet to be determined³.

4.2 Government decree of 15 December 1999 “on the federal programme of state support for the development of municipal authorities and the creation of conditions for implementing the constitutional competences of local self-government”

4.3 Speech by Premier Putin at the government session of 11 November 1999

During his presentation of the programme to the government session on 11 November 1999, Prime Minister Putin took a clear position in favour of local self-government:

“We must support the municipal authorities and put an end to all the suspicions which arise at a higher level of state administration, at the level of regions, which should also be self-sufficient and autonomous. But in the relationship between these different levels there should be no conflict. This is what we should be working towards.”

4.4 The federal programme of state support for the development of municipal authorities and the creation of conditions for implementing the constitutional competences of local self-government.

This programme comprises a list of objectives to be implemented by the Ministry of Nationalities and Federal Relations. It is due to run from the year 2000 to 2014 in two stages. The first stage (2000-2002) is to lay down the legislative and regulatory bases of the second stage. The objectives for 2000-2002 in the fields of law, organisation, economy and finance, studies and methodology, staff and politics and society are set out in the programme’s 6 appendices. 160 million roubles have been earmarked for 2000-2002 (of which 20 million are for the year 2000).

5. Conclusions and recommendations

One cannot but approve the recommendations contained in the report of the Presidential Directorate for Local Self-Government Affairs “on the problems of compliance by Russian Federation legislation (at both federal and constituent entity level) with the requirements of international treaties ratified by the Russian Federation in the field of local self-government, and the compliance by the legislation of the constituent entities of the Russian Federation with federal legislation”.

5.1 Fine-tuning federal legislation:

Two types of problems have to be addressed as a matter of priority: (i) regulating the organisation and financing of local self-government and (ii) improving local self-government protection instruments.

a) Regulation and financing

At the round table held on 21 December 1999 at the Federation Council on the first stage of the constitutional reform in the Russian Federation, the draft recommendation submitted to participants provided for changes to the law on the general principles of the organisation of local self-government in order to clarify the powers of local self-government bodies and strengthen state supervision of their activities.

There is perhaps some justification for thinking that some four and a half years following the passing of the law it would be highly desirable to revise some of its provisions so as to solve the problems encountered in the constituent entities of the Federation. Three problems warrant particular attention:

- the scope of local self-government (Article 4 of the Charter): in order to avoid a reduction in the scope of local autonomy by the constituent entities of the Federation, would it not perhaps be better for the federal law to stipulate that local self-government should be applied in the constituent entities to all administrative divisions?

- the allocation of competences and financing arrangements for the attributions of municipal authorities (Articles 4 and 9 of the Charter);

- supervision by the authorities of the legality of local authorities’ activities (Article 8 of the Charter).

The discussions at the round table held at the Federation Council showed that the views of the highest authorities in Russia were far from clear in this field. The Governor of Nizhny-Novgorod, Chair of the Council’s Committee on Federation Affairs, the Federal Treaty and Regional Policy suggested returning to the law passed by the Supreme Soviet of the RSFSR. He criticised the law on the foundations of the organisation of local self-government for having muddled everything up. “It has moved far away from the zemstvo. It has given state power roles to local self-government without subjecting it to control even though it belongs to the organs of the constituent entities of the Federation”. For his part, the Chairman of the Federation Council, E. Stroev, following the contributions to the round table, suggested amending the wording of the draft recommendation which stated “strengthen state supervision of their authorities”. “State supervision of local self-government is a nonsense. The Constitution describes it as ‘independent.” Perhaps it would be useful to suggest to the competent authorities in the Russian Federation a joint seminar to clarify these fundamental concepts of the Charter.

b) Improving local self-government protection instruments

- granting local authorities the right to challenge before the ordinary courts and courts of arbitration the regulatory acts of state power organs, in particular the state power organs of the constituent entities of the Federation which violate (or limit) the rights of local self-government;

- granting municipalities the right to challenge before the Constitutional Court violations of the rights and freedoms of citizens residing in such municipalities;

- establishing a procedure for budgetary dispute settlements, in particular between authorities and state power organs of the constituent entities of the Federation.

5.2 Use of current instruments to ensure the conformity of the regulatory legal acts of the constituent entities of the Federation with federal legislation and the European Charter of Local Self-Government.

These instruments are described in the report on problems of compliance by Russian Federation legislation (at both federal and constituent entity level) with the requirements of international treaties ratified by the Russian Federation in the field of local self-government, and the compliance by the legislation of the constituent entities of the Russian Federation with federal legislation (20-12-99, 43 pages):

1) the capacity to propose amendments to regulatory legal acts (p. 33)

2) Action before the courts (p. 34)

3) Supervision by the public prosecutor (p. 36)

4) Intervention by the President of the Russian Federation (p. 38)

5) State expert opinion on regulatory legal acts (p. 38)

Accordingly, one cannot but call on the competent authorities to make wide use of the powers attributed to them to ensure compliance with the right to local self-government.

Appendix I - Programme of meetings in Moscow on 22 and 23 December 1999

¹ The Kursk regional budget act of 29 June 1999 transfers to the local self-government bodies of the municipalities of Zheleznogorsk, Kurchatov, Lgov and Shchigra the state competence for paying the monthly child allowance (Section 31) and sets for 1999 a limit to grants and subsidies from the regional budget in respect of revenue and expenditure of the territorial administrative units (districts) and the budgets of the municipal authorities and the region’s urban authorities for the financing of expenditure not covered by own resources and incurred in the performance of state powers in accordance with the amounts set out in Appendix 7. The Kursk regional court, asked to serve an injunction on the Duma of the Kursk region to guarantee the financing of the expenditure of the municipal authority, naturally ruled that it was not competent to do so.

² Referring to the government’s plans with regard to the vertical power structure, he drew attention to the potential of a system in which each tier of authority had its own powers, rights, attributions and responsibilities, both as regards efficient administration and harmonising state and regional general interests and the rational use of own resources. At the same time, he referred to the problems inherent in the introduction of the new system of regional and local government: “We are incapable of complying with laws and applying them appropriately. Not all senior local officials are prepared to make their own interests subordinate to those of the state. On the other hand, certain senior managers are not above pressurising their subordinates, thereby ensuring the region dominates the local authorities which are part of it.” “Oblast Journal”, 15 December 1999.

³ Cf also the report of the Presidential Directorate for Local Self-Government Affairs on “fundamental guidelines for state policy for local self-government in the Russian Federation in the light of the adoption of Presidential Decree No. 1370 of 15 October 1999” (report written on the basis of the statement made by the Head of the Presidential Directorate for Local Self-Government Affairs, Secretary of the Council for Local Self-Government in the Russian Federation, B. I. Mints, at the meeting on 21 October 1999 with the leaders of the state power bodies of the constituent entities of the Federation responsible for local self-government affairs.