Strasbourg, 4 November 1999

Report on the situation of local democracy in Vladivostok (Russian Federation)

Bureau of the Congress (Nantes, 25-26 October 1999)

Rapporteur : Herwig van STAA (Austria)

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1. TERMS OF REFERENCE OF THE DELEGATION

At the 6th plenary session of the CLRAE, the Congress Secretariat received a letter from the Secretary of the Congress of Municipalities of the Russian Federation reporting difficulties in setting up local self-government institutions in Vladivostok (Primorsk Territory). The letter had been sent to the President of the CLRAE following a decision taken at the joint meeting of the Secretariat of the Congress of Municipalities of the Russian Federation, the Secretariat of the Union of Russian Towns and the Presidium of the Union of Local Authorities of Russia (Moscow, 8 June 1999) (see document CG/Bur(6)14).

In his letter the Secretary of the Congress of Municipalities of the Russian Federation proposed that the CLRAE send a Congress delegation responsible for monitoring local democracy and federalism in Russia on a fact-finding visit to Moscow and Vladivostok, focusing on the difficulties in establishing local self-government in Vladivostok.

At the meeting of the three Congress Presidents (Paris, 7 July 1999), the latter instructed Dr van Staa, President of the Chamber of Local Authorities of the CLRAE, as rapporteur, and Professor Michel Lesage, Professor at Paris I University, as consultant, to visit Moscow and Vladivostok and hold talks with representatives of the federal, regional and local authorities on the situation of local self-government in Vladivostok. The decision was taken on the basis of CLRAE Resolution 51(1997) and Congress Recommendation 30(1997), both concerning the state of local self-government and federalism in Russia.

It should be noted that the CLRAE has already visited Russia twice to monitor the establishment of local self-government and federalism, on:

- 26-28 October 1997 (Moscow; delegation headed by Mr Tchernoff, CPL)

- 12-14 April 1999 (Moscow; delegation headed by Dr van Staa, President of the CPL)

Consequently, this third visit by a delegation was a logical progression from the previous talks between the CLRAE and the Russian authorities as regards the institution of local self-government bodies, notably in certain constituent entities of the Federation.

The instructions of the Congress Presidency to the delegation were to meet representatives of federal, regional and local authorities with a view to establishing the facts as regards the situation of local democracy in Vladivostok in the light of the principles laid down in the European Charter of Local Self-Government and with a view to drawing up recommendations for consideration by the state authorities of the Russian Federation and other bodies.

The rapporteur was then to present a report to the CLRAE Bureau.

2. DISCUSSIONS

The meetings in Moscow and Vladivostok were organised in conjunction with the Ministry of Foreign Affairs and the Congress of Municipalities of the Russian Federation. The rapporteur would like to take this opportunity to thank the Ministry of Foreign Affairs and the Congress of Municipalities of the Russian Federation for their organisational efficiency. The Russian authorities, federal, regional and local, showed great willing, and discussions at all levels took place in a very positive atmosphere of mutual trust. The delegation was able to meet decision-makers at federal, regional and local levels and discuss the situation in Vladivostok openly and constructively (see the detailed programme of meetings appended).

The delegation held two press conferences in Vladivostok (22 and 24 September 1999) at which its leader, Dr van Staa, explained the aims of the visit and made a provisional report on the delegation's findings and the talks held in Moscow and Vladivostok, which in no way prejudices the present report and the conclusions of the Congress Bureau.

3. BACKGROUND INFORMATION ON THE PRIMORSK TERRITORY AND THE CITY OF VLADIVOSTOK

3.1 The Primorsk Territory

The Primorsk Territory was created by decree of the Supreme Soviet of the USSR in 1938. It has a population of 2,276,000 and a surface area of 165,000 km². Since 1993, 39 municipalities have been formed in the region.

Well-situated geographically, the Territory fulfils key state functions in the fields of transport, defence and foreign trade (twelve foreign consulates have opened in the regional capital, Vladivostok). Most of far eastern Russia's scientific, technical, industrial and trade potential is located in the Territory.

In recent years the Territory has been hit by a rather acute energy crisis.

3.2 Vladivostok

Vladivostok is the regional capital and its largest city. Founded in 1860, it covers 600 km² and is home to a population of 659,000. Vladivostok is an administrative, economic and cultural centre of the region. It has four ports: for passenger traffic, trade, fishing and the Pacific ocean fleet.

Vladivostok is vitally important to the life of the Primorsk Territory, both politically and economically. The delegation was told by local and regional decision-makers that 40% of the Territory's budget revenue came from revenues raised from the city. Similarly, at regional level, Vladivostok weighs heavily in the electoral balance, given the size of its population.

4. SITUATION OF LOCAL DEMOCRACY IN VLADIVOSTOK SINCE 1993

The CLRAE Presidency instructed the CLRAE delegation to establish the facts as regards the difficulties in establishing local self-government institutions in Vladivostok in line with the principles of the European Charter of Local Self-Government relating to local authorities. The rapporteur was also asked to present recommendations to the Congress Bureau which the Congress could then pass on to the Russian authorities with a view to settling these difficulties. The rapporteur's findings are based on the talks held and analysis of the Russian laws and regulatory acts currently in force.

The rapporteur notes that federalism in Russia suffers from real problems of co-operation between the three main levels of authority: the Federation, the constituent entities of the Federation and local self-government. They hinge in particular on the division of powers and responsibilities, ownership and budgetary resources.

These problems are particularly acute in the Primorsk Territory, marked for the last 5 years by a string of disputes between the former mayor of Vladivostok and the governor of the Territory, particularly over responsibility for paying wages in the education and health sectors, and disputes between the governor and the central authorities over problems such as the energy crisis in the Territory.

To date, those disputes have not been settled. For 5 years, it has not been possible to elect a city council for Vladivostok and the term of office held episodically by the mayor expired on 5 July 1998.

Firstly, it would certainly be most useful to retrace the course of events affecting the establishment of local self-government in Vladivostok and the difficulties encountered.

4.1 Mayoral elections

In 1993 Boris Yeltsin authorised the election of several mayors. On 26 June 1993, Mr V. Cherepkov was elected mayor of Vladivostok for a five-year term by universal suffrage. He took up his post on 5 July 1993.

During that period, the governor of the Primorsk Territory, Ye. Nazdratenko, was also anointed by universal suffrage: on 12 December 1993 he was elected deputy in the Federation Council. On 17 December 1995 he was elected governor of the Primorsk Territory with 68.55% of the vote. V. Cherepkov, also a candidate and by then dismissed from the post of mayor of Vladivostok, received 17.24% of the vote.

4.1.2 The conflict years of 1993-1998

4.1.2.1 The dismissal of the mayor of Vladivostok from December 1994 to September 1996

Dismissal (December 1994)

On 10 February 1994 legal proceedings were instituted against the mayor of Vladivostok. On 16 March 1994 the Prokurator (public prosecutor) ordered the suspension of the mayor of Vladivostok. On 23 December 1994, V. Cherepkov was dismissed from his post of mayor of Vladivostok by the President of the Russian Federation (Decree no. 2206, 23.12.99).

V. Cherepkov lodged a court appeal in Moscow (procedure before the court ongoing since 30.6.95).

Reinstatement (September 1996)

On 18 July 1996 the State Duma of the Federal Assembly adopted a resolution in support of V. Cherepkov. On 14 August 1996 the inter-municipal court of Khamovniki in Moscow rescinded the decision to dismiss Mr Cherepkov. On 24 September 1996, without waiting for the judgment of the higher courts dealing with the case, the President of the Russian Federation repealed his decree of December 1994 (Decree no.1391, 24.09.96). After an interruption of 18 months, Mr Cherepkov resumed his duties as mayor of Vladivostok.

4.1.2.2 Local self-government and supervision procedures

The rapporteur notes that Russian legislation provides for a procedure for dismissing elected local authority officials from executive posts.

Hierarchy of authorities provided for in the Statute of the Primorsk Territory

Article 76 para. 3 of the Statute states that: "The state executive authorities of the Territory shall supervise, within the Territory, compliance of local self-government bodies with the Russian Federation Constitution, federal laws, the present Statute and the laws of the Territory". Paragraph 5 states that the term of office of the local authority leader may be terminated before expiry on grounds and following procedures established by the law of the Territory.

The procedure for dismissing local authority officials

There is identical provision for the procedure for the dismissal of municipal officials by the legislative assembly of the constituent entity of the Federation, founded on the conclusions of the court, in the Federal Law "On general principles governing the organisation of local authorities in the Russian Federation" (Art. 49 §3) and the Primorsk Territory Law On local self-government of 9 February 1996 (Art. 60 §3).

The procedure comprises three phases:

1) The starting point is a court decision establishing a violation by the local authority body or elected official of the Russian Federation Constitution, the constitution or statute of the constituent entity of the Federation, federal laws, the laws of the constituent entity or the statute of the municipal authorities;

2) On that basis, the regional legislative assembly may ask the competent court to conclude as to the "non-compliance of the activity" of the local authority body or elected official with the Russian Federation Constitution, the constitution or statute of the constituent entity of the Federation, federal laws, the laws of the constituent entity or the statute of the municipal authorities;

3) the court's conclusions form the basis for the regional legislative assembly's considerations as to whether the term of office of the local authority body or elected official should be terminated. At the same time, termination of the term of office and the date of new elections are fixed by regional legislation.

4.1.3 The 1997 dispute

4.1.3.1 Relations between the central federal authorities and the authorities of the Primorsk Territory

At the beginning of June 1997, staff in the health and education sectors held demonstrations, calling for the payment of their salaries, blocked by a dispute between the city and the Territory. An energy crisis throughout the Territory restricted the use of lighting (and heating in winter). On 9 June 1997, the deputy chief of staff of the Russian Federation President, Y. Savostyanov, travelled to Vladivostok to notify the regional authorities of President Yeltsin's decree of 6 June 1997 granting special powers to the head of the Federal Security Service directorate, Mr Kondratov, who had recently been appointed the President's representative in the Territory. The situation, in which the political conflict between two figures - governor Nazdratenko and mayor Cherepkov - had a direct bearing on the lives and welfare of Russia's richest region, had become absolutely intolerable. The national government took this action as it was obvious that the Territory could not resolve the crisis alone.

The idea of holding fresh elections for both posts simultaneously was raised by the governor himself and backed by the first vice-president of the government, B. Nemtsov, also present in Vladivostok, but there was no legal basis for its implementation: the Territory's Duma held that it could not terminate the office of either the governor or the mayor and the latter had no intention of resigning simultaneously.

4.1.3.2 The attempt by the Territorial Duma to dismiss the mayor

The governor and the mayor remained in office, but the demonstrations continued. The State Duma sought to initiate the procedure for dismissing the mayor provided for in law but it took a decision that was not founded in law. Whereas legislation provided for a power of dismissal but not a specific power of suspension, the Primorsk Territory Duma adopted a resolution on 26 September 1997 concerning the provisional suspension of the term of office of the Vladivostok city council leader. On 29 September 1997, the Prokuratura (public prosecutor's office) of the Primorsk Territory lodged a request with the control and verification directorate of the Ministry of Finance to check the municipality's accounts since 1 November 1996. On 30 October 1997, the Court of the Primorsk Territory declared the Duma decision invalid. The Court's decision was upheld on 26 December 1997 by the Civil Section of the Supreme Court.

4.1.3.3 The Presidential decree of 11 December 1998

The term of office of the mayor of Vladivostok elected in 1993 expired on 5 July 1998

Interim duties fulfilled by V. Cherepkov following the expiry of his term of office (July-December 1998)

Article 59 §1 of the Law "On general principles governing the organisation of local authorities in the Russian Federation" states that local self-government authorities elected by the population prior to the entry into force of the law shall retain their powers until the expiry of the period for which they have been elected. The mayor of Vladivostok took up his post for 5 years on 5 July 1993 and therefore retained his powers until 5 July 1998.

After 5 July 1998, V. Cherepkov himself served as interim mayor. But when he was hospitalised on 30 November 1998, he appointed one of the deputy mayors, N. Beletskiy, interim mayor by a decree of 30 November 1998.

The Presidential decree of 11 December 1998 and the decisions taken in application of that decree

The Decree of the Russian Federation President of 11 December 1998 concerned arrangements for an interim mayor of Vladivostok and noted that it had not been possible to elect a new mayor before the expiry of the serving mayor's term of office. It mentioned the "ceasing of the prerogatives of the mayor of Vladivostok in accordance with paragraph 1 of Article 59 of the Federal Law On general principles governing the organisation of local authorities in the Russian Federation" and, "until the election, in accordance with the established procedures of the leader of the municipal authorities of Vladivostok", instructed the governor of the Primorsk Territory to appoint an interim mayor of Vladivostok. However, it made no reference to an article of the Constitution or any other law to found the President's right to do so. It simply mentioned that the decree "also took account of the proposals of local authority leaders in the Primorsk Territory and the city of Vladivostok" but provides no further detail.

On 14 December 1998, by decision no. 1, "in the light of Decree no. 1561 of the Russian Federation President, … the expiry of Mr Cherepkov's term of office and the lack of a representative authority of the city of Vladivostok, and in view of the fact that Mr Beletskiy has been appointed by Mr Cherepkov as ad interim city council leader following the expiry of his term of office and with a view to ensuring continuity in the leadership of the organs of local self-government", Mr Kopylov, one of Mr Cherepkov's deputies, declared himself interim mayor of Vladivostok and decided to give notice of this to the governor of the Primorsk Territory.

On the same day, the governor of the Territory, by decision no. 579, decided to:

- "approve" Mr Kopylov's decision no. 1;

- "consider [him] as interim mayor of the city of Vladivostok";

- "inform the President of the Russian Federation that his his decree no. 1561 has been implemented".

Still on 14 December 1998, Kopylov signed decision no. 1a on the taking up of the duties of mayor of Vladivostok, declaring that in application of decision no. 579 of the governor of the Primorsk Territory, he would serve as interim mayor with effect from 14 December 1998 and that his previous decision no. 1 was to be considered null and void.

The head of the clerical department of the Primorsk Territory administration, Mr Cherepanov, issued circular no. 48/56 to the Territory's local authority leaders and heads of administrative services, notifying them of a drafting error in the governor's decision no. 579 and rectifying the text with the addition of the word "appoint".

The Congress of Municipalities of the Russian Federation appealed to the President of the Russian Federation (adopted at the 2nd session of the Congress) to suspend the application of decree no. 1561 and send a working party from the Presidential Council on local self-government to co-ordinate the activities of the federal, regional and local authorities on the spot with a view to organising local elections in Vladivostok scheduled for 17 January 1999.

The judgments of the Supreme Court of 4 February 1999 and 15 April 1999

Mr V. Cherepkov contested the lawfulness of this decree before the Supreme Court of the Russian Federation, claiming that the President was not entitled to instruct the government to appoint an interim mayor to a post that was not vacant. The Supreme Court, in a judgment of 4 February 1999, ruled, and in our view rightly so, that Mr Cherepkov's term of office had expired on 5 July 1998; therefore the applicant could not rely on Article 18 paragraph 3 sub-paragraph 2 of the Law "On general principles governing the organisation of local authorities in the Russian Federation", under which "the term of office of the elected local authority official shall cease on the date on which the new elected authority takes up the post".

The Supreme Court confirmed the right of the Russian Federation President to instruct the governor of the Primorsk Territory to appoint an interim mayor of Vladivostok but, as legal grounds for that entitlement, the Court referred inter alia to Article 8 of the European Charter of Local Self-Government and to five articles of the Russian Federation Constitution.

"In accordance with Article 8 of the European Charter of Local Self-Government and Articles 11, 71, 72, 80 and 90 of the Russian Federation Constitution, the President of the Russian Federation, as Head of State and guarantor of the Constitution and of human and civil rights and freedoms, has both the right and the obligation to exercise supervision of compliance with federal laws and of the activity of local self-government bodies and to regulate and protect human and civil rights and freedoms, including citizens' right of local self-government.

This reference to Article 8 of the Charter seems improper. Article 8 concerns supervision of the acts of local authorities. Its paragraph 1 provides that supervision must have an adequate legal basis and therefore excludes any ad hoc supervision procedures. As for the Russian Federation Constitution, the articles referred to by the Supreme Court have no direct connection with any specific prerogatives of the Russian Federation President as regards supervision of local authorities: Article 11 deals only with the exercise of state power, Articles 71 and 72 with the division of powers and responsibilities between federal bodies and bodies of state authority of the Federation's constituent entities, Article 80 with the tasks of the Russian Federation President and Article 90 with the authority of the legal acts he adopts.

The Supreme Court nevertheless concluded that the Russian Federation President, "as Head of State, within the limits of the powers provided for in the Russian Federation Constitution, was entitled to issue decree no. 1561 of 11 December 1998 seeking to implement the constitutional right of the citizens of Vladivostok to elect, and to be elected to bodies of local self-government".

In cassation proceedings instituted by V. Cherepkov, the Supreme Court, by a decree of 15 April 1999 of its Cassation Section, confirmed the decision of the Supreme Court at first instance on 4 February 1999.

"In its ruling, the Court rightly took account of the fact that the presidential decree challenged is not a regulatory act. When the decree was adopted (as can be seen from its content and other documents in the case), account was taken of the real situation created in the city of Vladivostok by the failure to elect a local authority leader for a long period of time, the failure to adopt a statute for the city of Vladivostok and other circumstances, prompting determined action from state bodies and authorities, including the Russian Federation President in his capacity of Head of State and guarantor of the Russian Federation Constitution and of human and civil rights and freedoms. Decree no. 1561 was issued within the scope of competence allocated to the Russian Federation President by the Russian Federation Constitution".

The Cassation Section also corroborated the competence of the governor of the Primorsk Territory: "The Court has duly deemed unfounded the allegation of the applicant and his representative that the governor of the Primorsk Territory was not competent to appoint an interim mayor of the city of Vladivostok, since, in accordance with Article 5 paragraph 8 of the Federal Law "On general principles governing the organisation of local authorities in the Russian Federation", the protection of the rights of citizens to exercise local self-government is one of the responsibilities of bodies of state power of the constituent entities of the Russian Federation".

From the point of view of the principles of the Rule of law, founding such intervention in the functioning of local self-government by the Russian Federation President solely on his capacity of Head of State (Art. 80§1 of the Constitution) and guarantor of human and civil rights and freedoms (Art. 80§2 of the Constitution) is certainly not the best solution. The aforementioned Article 80§2 of the Constitution concerns the President's powers and responsibilities only vis-à-vis state government bodies: the President "in accordance with the procedure established by the Constitution of the Russian Federation … shall ensure the co-ordinated functioning and interaction of state government bodies". And Article 12 clearly states that "bodies of local government shall not form part of the system of state government bodies".

If local self-government is to be afforded genuine protection founded in law, we believe it distinctly preferable to provide, through legislation, for the prerogatives thus recognised by the Supreme Court of the Russian Federation as lying within the remit of the Russian Federation President and the governor of the Primorsk Territory and to state in what circumstances and on what grounds these authorities could have interim mayoral duties exercised not by the elected mayor whose term of office has expired but by another person appointed by the region's governor.

At present Mr Kopylov is serving as the interim chief executive of the city of Vladivostok.

According to the information gathered by the rapporteur from different individuals, the above events took place in an atmosphere pervaded by threats (in some cases physical, according to Mr Cherepkov) and criminal proceedings against the mayor of the capital of the Primorsk Territory. As regards the criminal suits filed against Mr Cherepkov, some cases have been dropped, where his innocence could be proven, while others are still in progress. In this context, the State Duma created, in 1996, a Committee for restoring a lawful situation in Vladivostok, which visited the city and, according to its chairman, Mr Gdlyan, found certain failures to comply with the law. In the rapporteur's view it is for Russian justice to settle this matter.

4.2 Election of the municipal council of the city of Vladivostok

From 1993 to 1996 (with some interruptions) the municipal budget was managed by the mayor, Mr Cherepkov. The city's budget is currently prepared by the Duma of the Territory (regional council).

There have been sixteen attempts to hold elections to the municipal council. The authorities currently running the city have informed us that on a number of occasions elections were called but subsequently postponed by decision of the former mayor himself or of the courts; otherwise they were cancelled because turnout was too low (less than 25% of voters).

Moreover, the city's statute - one of the fundamental texts governing local community affairs under Russian local government law - has also not been adopted so far.

It should be noted that within the boundaries of the city of Vladivistok there are a number of districts (municipalities in their own right) which have elected their own representative bodies and adopted their own statutes.

The rapporteur and the Russian authorities have discussed various solutions to this deadlock situation: election of a representative body which would then adopt a statute for the city; simultaneous election of a mayor and a representative body; and, lastly, adoption of a statute by means of a local referendum.

4.2.1 Electoral law

4.2.1.1 Election systems

The representative body

1. System of election: the 25% rule

1) Article 4 of the Law of 2 August 1996 on election of bodies of local self-government in the Primorsk Territory, which was amended on 23 September and 15 November 1996, provides that elections to such bodies shall take place on a first past the post basis under a uninominal system (i.e. subject to the rule that each constituency shall have one representative within the body of local self-government).

Paragraph 2 of Article 42 "Determination of election results" provides "On the basis of the results of the count, an official report shall be drawn up stating … that the elections in a constituency are deemed invalid where the total turnout is less than 25% of the total number of people registered to vote in the constituency as a whole or where the total number of votes cast against all of the candidates exceeds the number of votes obtained by any one candidate."

Paragraph 10 of Article 64 on the methods of determining election results provides that an election shall be deemed invalid by the constituency electoral commission where:

a) less than 25% of the registered voters took part in the ballot;

b) the score obtained by the candidate with the highest number of votes is less than the number of votes cast against all the candidates.

The candidate with the highest score is deemed to have been elected.

2. Quorum needed for the Duma (Assembly) of the city of Vladivostok to become operational

The Federal Law of 26 November 1996 guaranteeing the rights to elect bodies of local self-government and to stand for election thereto conferred under the Constitution of the Russian Federation lays down supplementary rules to be applied where local authorities have failed to hold an election.

Article 5 of that law gives approval to "provisional regulations on the election of members of representative local self-government bodies and of elected officials of local self-government in constituent entities of the Russian Federation which have failed to guarantee the exercise of citizens' constitutional rights to elect members of bodies of local self-government and stand for election thereto."

Paragraph 2 of Article 4 specifies that "the representative local self-government body shall be deemed to be vested with full authority where at least two-thirds of the requisite number of members have been elected."

This provision became part of the Territory's local government law under a territorial law of 1 July 1999 supplementing the legislation on local self-government in the Primorsk Territory. Under Article 24 of that law "A representative local self-government body elected in a municipality devoid of a valid statute shall be deemed to be vested with full authority provided that at least two-thirds of the number of members specified in the relevant regulatory acts of the Primorsk Territory have been elected."

The system of election of municipal Chief Executives

Rules on election of municipal Chief Executives have successively been defined in a territorial Law of 4 November 1995 on election of municipal Chief Executives in the Primorsk Territory and a Law of 5 May 1998 making amendments thereto.

1. The territorial Law of 4 November 1995 on "Election of municipal Chief Executives in the Primorsk Territory"

An election is invalid if turnout is less than 25% of registered voters or if the total number of votes cast against all the candidates exceeds the number of votes obtained by any one candidate.

The candidate who scores the highest number of votes is deemed to have been elected on condition that his or her score exceeds the number of votes cast against all the candidates.

2. The amendments introduced under the Law of 5 May 1998

Under paragraph 2 of Article 31, the constituency electoral commission shall recognise that elections were duly held in the constituency in question if at least 25% of voters registered in the constituency as a whole took part in the ballot and shall deem to have been duly elected as municipal Chief Executive any candidate who obtains more than 50% of the votes cast by the voters who took part in the ballot.

Under paragraph 3 of the same Article, where two or more candidates are standing for election and none is duly elected, the territorial electoral commission shall decide to hold a second ballot in which the two candidates who scored the highest number of votes shall stand. The second ballot shall be held two weeks after the first, at the latest, and shall be organised in accordance with the requirements of the Law of 5 May 1998. Information on organisation of this second round of voting shall be published in the press at least three days before the date of the ballot. Candidates' names and other particulars shall be shown in alphabetical order on the ballot paper.

The election shall be deemed to have duly taken place irrespective of the number of people who turn out to vote.

Paragraph 4 stipulates that the candidate who obtains the highest number of votes cast in the second round shall be deemed to have been elected. If only one name remains on the ballot paper on the date of the second round, that candidate shall be deemed to have been elected if he or she obtains at least 50% of the votes cast by the voters who take part in the ballot.

Local referendums

1. Federal law

Both the Law on general principles governing the organisation of local authorities in the Russian Federation (Article 22) and the Law of 19 September 1997 establishing fundamental guarantees concerning the electoral rights and right to participate in referendums of citizens of the Russian Federation provide for the holding of local referendums.

Paragraphs 1 to 5 of Article 22 of the law on general principles governing the organisation of local authorities in the Russian Federation lay down general rules on the organisation of local government as regards local referendums, and paragraph 6 provides that the rules on calling and running local referendums and on adopting and modifying decisions taken by local referendum shall be set forth in the local authority's statute in accordance with the laws of the constituent entities of the Federation. However, paragraph 4 of Article 61 of the Law of 19 September 1997 specifies that a decision taken by local referendum may be repealed or amended by another decision taken by means of a local referendum held at the earliest two years after the adoption of the first decision or a court's finding that that decision is invalid.

2. Regional law

Regional regulations on local referendums are laid down in a Law of 4 November 1995 on local referendums in the Primorsk Territory.

Under paragraph 2 of Article 33, a referendum shall be deemed invalid if less than 50% of the citizens entitled to vote take part in it.

Decisions on questions put to referendum shall be deemed to have been adopted if over 50% of those taking part have voted in favour.

The calling of elections

Under paragraph 7 of Article 66 of the Federal Law establishing fundamental guarantees concerning the electoral rights and right to participate in referendums of citizens of the Russian Federation it is possible to extend or curtail the term of office of bodies of local self-government and bodies of State power in the constituent entities of the Russian Federation so that the date of their election coincides with regional or federal elections, subject to the following rules:

1) an extension may not exceed nine months;

2) decisions to modify the term of office of a body of State power in a constituent entity of the Federation shall be taken under a law of the entity of the Federation concerned, and decisions to modify the term of office of a body of local self-government under a municipal regulatory act;

3) the Central Electoral Commission shall be kept informed;

4) funding for the elections shall be provided through appropriations to the relevant accounts of the corresponding budgets;

5) this possibility is granted until 1 May 2001.

4.2.1.2 Election of the city's Duma in 1999

Elections to the Duma of the city of Vladivostok, which had been postponed on several occasions, in the end took place on 17 January 1999 in 22 constituencies. In six of the constituencies the election was deemed not to have taken place because of insufficient turnout. In two others the ballot was held to be invalid. Fourteen representatives were declared elected by the electoral commissions, but following appeals lodged in nine constituencies six of these elections were subsequently invalidated. The outcome was that only eight representatives were elected, which was not enough to convene a session of the Duma. A second ballot was scheduled on 16 May.

The results of the elections were examined by the Central Electoral Commission, which gave its findings in a decision of 24 February 1999 entitled "Results of the elections to the representative local self-government body - Duma - of the city of Vladivostok in the Primorsk Territory held on 17 January 1999".

The Central Electoral Commission "points out that on the occasion of the elections, which took place under difficult circumstances owing to the fact that the relevant basic legislation is incomplete and the necessary relations between the bodies of State power in the Primorsk Territory and the bodies of local self-government of the city of Vladivostok have not been established, the Electoral Commission of the Primorsk Territory was unable properly to co-ordinate the action taken by the bodies of State power, the Vladivostok city authorities, the police and the local electoral commissions so as to ensure from a legal and organisational standpoint conditions conducive to the due exercise of citizens' electoral rights. In making preparations for and running the elections to the representative local self-government body - the Duma of the city of Vladivostok - the territorial electoral commission in Vladivostok, the constituency electoral commissions and the polling stations failed to ensure that citizens were fully able to assert their rights to elect representatives and stand for election, which led to many breaches of electoral law and constituted grounds to deem the elections invalid in certain constituencies or to lodge appeals with the courts."

At the same time the Central Electoral Commission issued guidelines to the electoral commission in Vladivostok, instructing it to pay particular attention to the following matters on the occasion of the second ballot to be held on 16 May:

- establishing and verifying information on registered voters, including voters who would be on board vessels at sea on the date of the election, and holding officials of the bodies of local self-government personally liable for the transmission of inaccurate information on voters to the electoral commissions;

- explaining how the electoral commissions' work would be organised in polling stations established on board vessels at sea on the date of the election;

- arranging for strict control of the preparation, delivery and storage of ballot papers, electoral registers and all other electoral documents;

- publishing the results of the counts in the different polling stations and forwarding the results of the elections to the constituency and territorial electoral commissions;

- ensuring the lawfulness of decisions taken by the territorial electoral commission in matters such as registration of candidates, their use of electoral funds, the conduct of the election campaign, determination of the results of the elections and the actual information provided to voters concerning the decisions taken.

The Central Electoral Commission asked the authorities of the city of Vladivostok to take the necessary measures, in liaison with the territorial electoral commission in Vladivostok, to establish constituency and polling station electoral commissions according to the procedure and within the time-limits prescribed by law, and to settle the question of reinforcing those commissions with legal specialists.

It recommended that the Duma of the Primorsk Territory should, as a priority, amend and supplement the regional Law on local self-government in the Primorsk Territory with regard to organisation of the activity of the representative local self-government body. It asked the general Prokuratura for a summary report on the way in which the courts dealt with appeals lodged by citizens alleging breaches of the legislation in force on the occasion of the elections to the bodies of local self-government of the city of Vladivostok (Vestnik Tsentralnoj Izbiratelnoj Kommissii Rossiskoj Federatsii, 1999, No. 2 (68), pp. 8-10).

At the pan-Russian Conference of the Chairpersons of the Electoral Commissions of the constituent entities of the Federation, the Chairman of the Electoral Commission of the Primorsk Territory, Mr S. Knyazev, made a statement on the obligation to hold elections. He considered it reprehensible both to postpone elections and to call early elections. He also referred to the problems posed by changes in the membership of electoral commissions and, above all, did not hesitate to question the merits of the 25% and 50% limits (Vestnik Tsentralnoj Izbiratelnoj Kommissii Rossiskoj Federatsii, 1998, No. 6 (72), pp. 26 and 27). Mr Knyazev confirmed his position on the subject in the course of a meeting with the CLRAE delegation on 23 September 1999.

4.2.1.3 The elections of 19 December 1999

In a decision of 8 October 1999 the interim mayor of Vladivostok, Mr Yu. Kopylov, called a mayoral election on 19 December 1999. He stated that the aim was to make budgetary savings by holding a referendum and elections on the same date.

Three ballots are already scheduled to take place on 19 December:

- election of representatives to the State Duma of the Federal Assembly of the Russian Federation;

- election of the Governor of the Primorsk Territory;

- election of representatives to the city Duma (14 seats out of 22 have yet to be filled).

The procedure to hold a fourth ballot - a referendum on adoption of the city's statute - has also been launched under an order making reference to a decision by the authorities of the city of Vladivostok and the Primorsk Territory electoral commission's decision No. 62 of 27 September 1999, both concerning the initiative group for the holding of a referendum on the adoption of the statute of the Vladivostok municipal authority.

The rapporteur is of the opinion that the solution of holding a referendum has two drawbacks. It results in a statute with fixed provisions, which can then only be amended by means of a further referendum, and it may lead to a contest between several draft texts. However, it is the only means of establishing a legal basis for electing the mayor on the same date, since the mayor's powers can be defined only in the municipal authority's statute.

With regard to the elections of the municipal Chief executive (Mayor) of Vladivostok, also scheduled for 19 December, the rapporteur considers that the legal basis for these elections is quite unclear. The rapporteur refers to the judgement of the Supreme Court of the Russian Federation concerning the legal grounds for calling elections for the mayor of Vladivostok which states that the city does not have a statute which foresees a mayor's office. On 14 September last, the Chamber for civil affairs of the Russian Federation, by order of appeal N°56 G99-15, stated that the office of the Head of local administration (or municipal Chief executive) shall only be foreseen by the city statute and, as a result, decided against the plaintiffs request to call the date of new elections of the mayor.

Conclusions

In conclusion, based on a study of the legislation in force and bearing in mind the decisions of the Supreme Court of the Russian Federation and the tenor of the discussions which we have had with officials at all levels, the rapporteur wishes to make the following recommendations concerning a solution to the difficulties encountered in establishing bodies of local self-government in Vladivostok:

1) To end the political deadlock in the city, which has no elected bodies of local self-government (whether executive or representative), the rapporteur recommends that elections to the city's Duma (municipal council) be organised in those constituencies where no valid election has yet taken place. These elections might be held, as envisaged, on 19 December 1999 at the same time as the elections to the State Duma and the election of the Governor of the Primorsk Territory. The rapporteur considers that organising these three elections concurrently would be a means of overcoming the problem of preparation of the electoral registers, which gave rise to many complaints in the wake of the elections of 17 January 1999.

2) The municipal council formed after these elections would be in a position to adopt a statute for the city of Vladivostok, a document essential to the functioning of a municipal authority. This statute should, in principle, clearly define the role and position of the Chief Executive in respect of municipal affairs and the method of electing this local official (universal suffrage or election by a college consisting of all the municipal councillors). The statute should also determine the distribution of powers between the Chief Executive and the representative body.

3) The rapporteur thinks that, for the reasons set out below, it would be difficult to hold simultaneous elections to the office of Chief Executive and to the representative body or to combine those simultaneous elections with a local referendum concerning the adoption of a draft municipal statute.

- As things stand at present, simultaneous election of the Chief Executive (mayor) and the municipal council might stir up political quarrels if the majority in the elected council was not of the same political persuasion as a mayor elected by universal suffrage, especially since their respective powers will not be precisely defined until a municipal statute has been adopted.

- Nor would adoption of a statute by means of a referendum be a better solution, in the rapporteur's view, because under federal law (paragraph 4 of Article 61 of the Law of 19 September 1997 establishing fundamental guarantees concerning the electoral rights and right to participate in referendums of citizens of the Russian Federation) a decision taken by local referendum may be repealed or amended only by holding another local referendum at the earliest two years after the adoption of the decision or a court's finding that it is invalid.

A municipal statute - one of the fundamental texts governing local community affairs is a complex legal document necessitating careful consideration by all the political forces represented within the municipal council (in the instant case), whereas referendums should be used to pose questions requiring brief answers that reflect a position of principle. The rapporteur believes that, given the political climate prevailing in the city of Vladivostok, which is characterised by strong political beliefs and allegiances, there is a good case for having an elected municipal council adopt the city's statute.

4) The rapporteur calls on the CLRAE to send observers to Vladivostok to monitor the elections to the representative body which should take place on 19 December 1999.

5) At a national level, the Congress of Municipalities of the Russian Federation and the association of municipalities of the Primorsk Territory and the Khabarovsk Territory might likewise send observers.

6) The rapporteur urges the Central Electoral Commission of the Russian Federation and the Electoral Commission of the Primorsk Territory to ensure, pursuant to the powers conferred on them under federal and regional law, that the elections to the municipal council of Vladivostok are free and fair. Both commissions should, in particular, seek to guarantee that the electoral commissions at constituency and district levels are lawfully established.

7) The electoral commission of the city of Vladivostok should guarantee with all due rigour that electoral registers are lawfully drawn up, so as to avoid their subsequent revision or rectification by the courts, which might pose problems as regards the validation of the election results.

8) The rapporteur also points out that, under paragraph 5 of Article 14 of the Law on election of representative bodies of local self-government in the Primorsk Territory, if the representative local self-government body fails to establish constituency electoral commissions within the prescribed time-limits, it is for the city's electoral commission to do so in its stead.

9) The rapporteur proposes that, this report be communicated, for information, to the Parliamentary Assembly's Committee on the Monitoring of Commitments by Member States of the Council of Europe, to the Committee of Ministers, to the federal authorities of the Russian Federation, to the authorities of the Primorsk Territory, to the local authorities in Vladivostok and to the Congress of Municipalities of the Russian Federation.

APPENDIX

Programme of the CLRAE delegation's visit

Moscow and Vladivostok

(20 - 24 September 1999)