Rapporteurs: Dr Guido RODIO, Italy, Chamber of Local Authorities, Political Group: EPP/CD and Hans Ulrich STÖCKLING, Switzerland, Chamber of Regions, Political Group : ILDG
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EXPLANATORY MEMORANDUM
Introduction
1. Since 1994 the Congress has been running a systematic programme to monitor the commitments of Council of Europe member states in respect of local and/or regional democracy. Since 2000 this monitoring mechanism for the European Charter of Local Self-Government (“the Charter”) has been recognised in the Statutory Resolution of the Congress1. The Congress now has an official remit from the Council of Europe Committee of Ministers to make regular reports country by country so as to ensure that the Charter is being properly applied in all the member states. To date 362 reports with recommendations to national authorities have been adopted by the Congress and constant dialogue is maintained between elected representatives and governments on developments relating to local and regional self-government.
2. This statutory responsibility of the Congress is exercised by the Institutional Committee. A report prepared after on-the-spot visits is submitted to the Congress at a plenary session. Reports and recommendations are drawn up in the light of the principles and rules set out in the Charter.
3. The first report on the state of local and regional self-government in Russia was adopted by the Congress in 1997, a year after Russia became a member of the Council of Europe. At the time, the Congress took the view that the Russian Federal Constitution of 1993 gave substantial guarantees in the area of local self-government and that these guarantees, and the 1995 federal law on the general organising principles of local self-government, were in conformity with the principles of the Charter.
4. At the same time the Congress took the view that a number of the Federation’s Constituent Entities had adopted too restrictive a definition of local self-government and that local authority finances needed improving.
5. Throughout the period 1998-2002 the Congress kept up a regular political dialogue with the high-ranking Russian Federation officials who attended Congress sessions to keep Congress members up to date on the progress of reform. This dialogue was reinforced by a number of conferences, at which subjects such as local finances and relations between Constituent Entities and the Federation were examined openly and constructively3.
6. Since October 2001 the Council of Europe has also given much legislative assistance and advice in co-operation with the Commission on Distribution of Powers chaired by the First Deputy Head of the Presidential Administration, Mr Dmitri Kozak4.
7. On 5 July 2002 the Bureau of the Congress decided to start preparing the second report on local and regional democracy in Russia. At the instigation of the Institutional Committee it asked us to submit such a report in 2004. The Bureau’s decision was prompted by the major reform process in local self-government and federalism which Russia began in 2000 under initiative from the President of the Russian Federation, Mr Vladimir Putin, and under the political guidance of Mr Kozak. The main aim of this reform was to strike a fair balance in power apportionment among the three levels of government (federal, regional and local) in Russia in order to meet the commitments which the government had given the country. The second aim was to match powers and available resources at each level of government. Lastly, with regard to local self-government it involved standardising a number of rules to bring in local self-government throughout Russia.
8. The first results and the prospects for this reform were discussed at two conferences, at St Petersburg in April 2002 and Kazan in 2003.
9. In order to prepare this report, the rapporteurs made three visits to Russia, to Moscow and the Volga Federal District (Privoljskii), in July 2003 and in January and April 2004. During these visits they had opportunities for discussions with representatives of the federal authorities (the Presidential Administration, the government, the Federal Assembly and the Secretariat of the President’s Plenipotentiary in the Volga Federal District), regional authorities (the Federation Council) and local authorities (the Russian Congress of Local Authorities, elected representatives and local administrators). The rapporteurs wish to thank all those who made themselves available in Moscow and the Volga district to receive the delegation and give it their views on the current reform. The rapporteurs also thank the Russian delegation to the Congress and its secretariat, the Presidential Administration, the Secretariat of the President’s Plenipotentiary in the Volga Federal District, for their invaluable assistance in organising the visits.
10. The rapporteurs were assisted in their work by the consultants, Mr Francesco Merloni, University of Perugia, Chair of the Group of Independent Experts on the Charter, and Mr Michel Lesage, professor emeritus of University of Paris I Panthéon – La Sorbonne and Council of Europe expert. We particularly wish to thank them here for their collaboration throughout the preparation of this report and for their advice and suggestions. Without their support this report would never have seen the light of day.
11. The aim of this report is to examine the reform of local self-government and federalism in Russia from a consistently European standpoint and through the lens of the Russian Federation’s commitments with regard to local and regional democracy. Thus the rapporteurs hope, by means of critical comment, to make a constructive contribution to the debate and to subsequent implementation of the reform in Russia.
Chapter I. REGIONAL DEMOCRACY
1. Reform
1.1. Political reform
12. The reform of federalism and local self-government which Vladimir Putin initiated in 2000 by creating federal districts and reforming the Federation Council continued in 2003 with two federal laws in this area and the work of the commission chaired by Dmitri Kozak.
13. As soon as he took office as President of the Russian Federation on 7 May 2000, Vladimir Putin carried out an important reorganisation of federal administration and the Federation’s relations with the Constituent Entities. He immediately demonstrated his desire to ensure continuity of the federal state by creating 7 federal districts on 13 May (over and above the 89 Constituent Entities), each bringing together 6 to 18 Entities: Centre (Moscow), North-West (St Petersburg), South (Rostov on Don), Volga (Nizhnii Novgorod), Urals (Ekaterinburg), Siberia (Novosibirsk) and the Far East (Khabarovsk) and appointing his plenipotentiaries in them5. Their main mission was first to ensure legal unity by encouraging the Constituent Entities to amend their regional legislation so that it was in conformity with federal legislation.
13b. At the same time powers to supervise the constitutionality and legality of Constituent Entities’ measures were increased by the Federal Law of 29 July 2000, amending and supplementing the Law of 6 October 1999 on the general organising principles relating to legislative (representative) and government bodies of Constituent Entities (Articles 9, 19, 27). The sanctions that it provides are also intended to encourage regional authorities to comply with federal legislation.
14. That same year, doubtless the most important political reform was the change in the composition of the Federation Council. With promulgation of the Law of 5 August 2000, leaders of executives and regional legislative assembly presidents ceased to sit on the Federation Council, which now comprised one person appointed by the leader of the executive and one appointed by the legislative assembly for each Constituent Entity.
15. Governors and leaders of republics took their seats on the Council of State created by Decree No. 1602 of 1 September 2000, a consultative body chaired by the President of the Russian Federation. At least once a month the President convenes a presidium of 7 members appointed from among Council members for 6 months to ensure rotation.
1.2. Administrative reform
16. On 21 July 2001 the President set up his own commission, chaired by Dmitri Kozak, for proposals on apportionment of responsibilities among Federation government bodies, Constituent Entity government bodies and local self-government bodies.
17. The commission took the view that the constitutional principles established by Articles 71 to 73 should be precisely expressed in a general law dealing in detail with the structure of public authorities in Constituent Entities and demarcating powers in areas of joint responsibility, which often gave rise to difficulties in Federation-Constituent Entity relations. The other major concern of the federal authorities in 2001 was to ensure concordance between the powers of the three levels (federal, regional and local) and their financing. The latter issue was closely linked to that of treaty conclusion and the Federation’s concern to ensure that citizens’ fundamental rights were observed throughout the Federation (unity of the federal law area), at the same time avoiding large development imbalances between different parts of the Federation.
18. Lastly, the commission’s purpose was to make proposals regarding cases in which Federation intervention in regional affairs was allowed.
19. In particular the commission has drafted two laws on the foundations of federalism in Russia, with substantial support from Council of Europe experts: a draft federal law amending and supplementing the federal law on the general organising principles applying to legislative (representative) and government bodies of Constituent Entities and a draft federal law on the general organising principles of local self-government in the Russian Federation. These draft laws were laid before the State Duma on 31 December 2002 and passed in 2003.
20. On 4 July 2003 President Putin signed Federal Law No. 95 FZ amending and supplementing the federal law “on the general organising principles applying to legislative (representative) and government bodies of Constituent Entities”. This not only amended the previous law, of 6 October 1999, it also incorporated the Federal Law of 24 June 1999 on principles and procedure for apportioning powers between Russian Federation government bodies and Constituent Entity government bodies. This is precisely what Law No. 95 FZ seeks to codify, as a federal law covering all legal relations between the Federation and the Entities on the basis of the 1993 Federal Constitution. Clearly such a law is of real benefit as a statement of political agreement between the Federation and the Entities, with the Federation Council vote as its political and institutional guarantee.
21. On 6 October 2003 the President of the Russian Federation signed Federal Law No. 131 FZ on the organising principles of local self-government in the Russian Federation, to replace the Federal Law of 28 August 1995 (see Chapter II). These two laws are two reform milestones.
22. By decree of 27 November 2003 the President changed the Presidential Commission on Apportionment of responsibilities between Federation government bodies, Constituent Entity government bodies and local self-government bodies into the Presidential Commission on Federal Relations and Local Self-Government. The commission, still chaired by Dmitri Kozak, now Secretary-General to the Government with ministerial rank, is a permanent consultative body answerable to the President6. It is responsible for examining draft legislation in this area and draft treaties on apportioning jurisdiction and powers between Federation government bodies and Constituent Entity government bodies.
23. In his speech in the Federation Council on 18 February 2003 to the Council of Legislators7, President Putin made clear the scope of the work to be done:
- firstly meeting all the obligations laid down in the laws would require a budget of 6,500 thousand billion roubles. The country’s consolidated budget is 3,500 thousand billion roubles;
- secondly revising over 200 laws between now and 2005. At present they are being examined by the Kozak commission and the federal government. President Putin stated in his speech on 18 February 2003 that the proposed laws would have to be synchronised with amendment of the laws governing economic and financial activity, and similarly entry into force of the jurisdiction apportionment laws with amendments to fiscal and budgetary legislation.
2. The status of Constituent Entities of the Federation
24. The new Law No. 95 establishes the principle of supremacy of federal law in matters of federal responsibility and joint responsibility, even though the Constituent Entities retain forty residual areas of responsibility with which the Federation does not deal.
2.1. The precedence of legislation over treaties: treaties, an exceptional procedure
25. In 1990 several republics declared themselves “sovereign” and passed laws with no thought for federal legislation. In its decision of 7 June 2000 the Constitutional Court declared that the Russian Federation alone had sovereignty. The republics with which the Constitutional Court decision of 7 June and the Order of 27 June 2000 were concerned deleted the cancelled provisions from their constitutions.
26. Article 11.4 of the federal constitution stated that the division of jurisdiction and powers between Federation government bodies and Constituent Entity government bodies was to be as set out in the constitution, the Federal Treaty and other treaties on the division of jurisdiction and powers.
27. From 1994 to 1998 42 treaties were signed with 46 Constituent Entities but the process was subsequently suspended by the Federation.
28. Most of the regions have abandoned the idea of a treaty with the Federation on apportionment of jurisdiction. The rapporteurs observe that the treaties signed with the Federation in the 1990s have performed their historic function. Under Federal Law No.95 maintenance of those treaties has to be confirmed by a federal law, and all the treaties without exception have to be reconfirmed within two years. In other words, the Federation and the Constituent Entities will have to decide whether it is necessary to keep the particular treaty in force or declare it lapsed.
29. With regard to the Chechen Republic, the necessity for a treaty with the Russian Federation has been acknowledged. The electors of the Chechen Republic adopted a Constitution on 23 March 2003. On receiving the head of administration of the Chechen Republic, A. Kadyrov, on 27 March, President Putin said it was essential to begin joint work on apportioning powers between the federal centre and the Chechen Republic. “Concluding such a treaty, which would enable the Republic to develop effectively and to the full, would safeguard the interests of the Chechen people by granting Chechnya autonomy in the widest sense. The Constitution of the Russian Federation allows this”.
30. Article 26.7 of the Federal Law of 4 July 2003 established the principles and procedures for the conclusion of treaties on apportionment of powers. Power-apportionment treaties are permitted only where called for by the economic, geographical and other features of the Constituent Entity and to the extent that the features in question necessitate an apportionment other than that laid down in federal laws. The Law of 4 July limits the validity of a treaty to 10 years.
31. It specifies that the procedure for drawing up and consulting on a draft treaty on federal jurisdiction is set by the President of the Federation. The draft is submitted for approval to the regional legislative body, which approves it or rejects it by a majority of its members.
32. The President of the Federation submits the draft federal law approving the treaty to the State Duma within ten days of its signature.
33. The Presidential Commission on Federal Relations and Local Self-Government makes a prior examination, with the presidential plenipotentiaries in the federal districts, of draft treaties prepared for submission to the President of the Russian Federation and also gives its opinion on whether it is appropriate to submit to the State Duma for ratification treaties valid on the day Federal Law No. 95 FZ of 4 July 2003 entered into force.
34. In itself the existence of treaties or agreements on the distribution of powers is not calculated to simplify matters in legal terms. In political terms, and having regard to developments in federalism in Russia in recent years, the new procedures regarding conclusion of treaties introduce a necessary degree of flexibility for resolving some thorny problems, provided that they are used within a well-defined framework and there is no encroachment on the legality principle. In any case the present trend and the trend in previous years (2000-2003) seem to indicate that there will be only limited use of treaties in future.
2.2. The enlargement of the regions: the union of autonomous districts and the adjoining oblast or krai
35. The existence in Russia of 89 Constituent Entities is still a topic for discussion. Vladimir Putin stated in a speech on 19 December 2002 that there were no plans to enlarge the regions and appoint their leaders, but he made an exception in the case of “complex” entities – those where there is another entity within the entity and they cannot divide jurisdiction and powers between them. It is quite possible in this case to talk of enlargement, but he stressed that this is entirely a matter for the people who live there.
36. The federal constitutional law of 7 December 2001 on admission to the Russian Federation and the setting up within it of a new Constituent Entity laid down the procedure for setting up a new Constituent Entity. Initiative in the matter lies with the Constituent Entities on whose territory the new Constituent Entity is to be set up, and setting up the new Entity has to be put to a referendum in those Constituent Entities. A draft federal constitutional law is then laid before the Duma by the President of the Russian Federation.
37. Several oblasts and autonomous districts have set about linking up.
a. Unification of the Perm oblast and the Komi Permiak autonomous district is now the subject of a federal constitutional law. A referendum was successfully organised in the Perm oblast on 7 December 2003. The federal constitutional law on the setting up within the Russian Federation of a new Constituent Entity resulting from union of the Perm oblast and the Komi Permiak autonomous district was enacted on 25 March 2004. The new entity is called the Perm krai and has krai status. It comes into existence on 1 December 2005.
b. The proposal to unite the Irkutsk oblast and the Buryat autonomous district of Ust-Orda is currently being considered by the regional assemblies of the two Entities. In Kamchatka discussions are also under way on stage-by-stage unification of the Kamchatka oblast and the Koryak autonomous district.
3. Autonomy in organisation – electoral systems
3.1. Federal powers
38. Article 11.2 of the Constitution provides: “State power in Constituent Entities of the Russian Federation shall be exercised by bodies of State government set up by them” and Article 77.1 provides: “The system of State government bodies of republics, krays, oblasts, cities of federal significance, autonomous oblasts and autonomous okrugs shall be established by the Constituent Entities of the Russian Federation independently in accordance with the basic principles of the constitutional order of the Russian Federation and the general principles of the organisation of representative and executive State government bodies which are established by federal law.” Article 72 of the Constitution grants the Russian Federation and the Constituent Entities of the Russian Federation joint jurisdiction in:
“b) protection of human rights and civil rights and freedoms, … ensuring lawfulness, law and order and public security;
...
m) establishment of general principles of the organisation of the system of State government and local government bodies.”
39. At present three sets of federal provisions have a role in the organisation of regional power:
1) decisions of the Constitutional Court of the Russian Federation. In particular, the Constitutional Court clearly stated the basic principles of the constitutional system which in its view apply to the regions in its decisions of 18 January 1996 (Altai), 1 February 1996 (Chita), 3 April 1997 (Perm, Vologda) and 10 December 1997 (Tambov)8;
2) the Federal Law of 12 June 2002 on Russian Federation citizens’ electoral rights and right to vote in referendums;
3) the Law of 6 October 1999 on the general organising principles applying to legislative (representative) and government bodies of Constituent Entities, amended on 4 July 2003.
3.2. Election of regional executives
3.2.1. The term of office
40. The Federal Law of 9 October 1999 established a uniform rule for all the Entities: the supreme authority in a Constituent Entity is elected for a maximum period of 5 years and cannot be elected for more than two successive terms. The Law of 9 October 1999 was subsequently supplemented on 8 February 2001 by a clause (Article 30.1) stating that that this rule applied regardless of terms served before it entered into force.
41. Article 30.1 was amended by the Law of 4 July 2003. If the law of the Constituent Entity as at 19 October 1999 contained no limitation on the number of terms of office of the person in the post of supreme authority in the Entity, the first term of the two terms possible under Article 18 (5) of the law is the term for which that person is elected.
42. If the legislation of the Constituent Entity as at 19 October 1999 contained a limitation on the number of terms of office, the Entity has the right to decide independently if the limitation should continue to apply or if it begins after entry into force of the federal law.
3.2.2. Date of election
43. Presidents began being elected in 1991, before the Constitution entered into force, governors as from 1996.
44. The election date was fixed at the regional level, so every year some of the regional governors are elected. There is no single date for all or part of Russia. The question arose whether, to boost turnout and make financial savings, the regional and municipal elections should be combined
3.2.3. Equality of candidates and the electoral method
45. How can equality be guaranteed between a governor or president standing for re-election and other candidates? The question is certainly worth asking.
46. The answers differ widely. There have been cases of governors not being re-elected, but equally cases in other regions of candidates complaining about election conditions that allowed the governor to be re-elected. The rapporteurs observe that some provisions of federal legislation are precisely designed to ensure such equality – Article 40 of the law on electoral rights lays down restrictions on official powers by requiring, for example (Article 40.2), that the outgoing governor step aside for the duration of the election campaign.
47. The federal law on the general organising principles applying to legislative (representative) bodies and government bodies of Constituent Entities establishes the principle that the supreme authority of the Constituent Entity is elected by universal suffrage.
48. Under the federal law on electoral rights and the right to vote in the Federation referendum of 12 June 2002 an absoute majority is now required for election. Article 71.1 of the law provides that in election of the supreme Constituent Entity the candidate obtaining more than 50% of the votes cast is considered elected. If there are more than two candidates and none is elected, a second round is held between the two candidates with most votes.
49. In practice most of the governors elected prior to that law obtained 50 to 75% of the votes, but ten governors were elected with less than 50% of the votes. A further ten were elected with from 75 to 90% of the votes.
50. In 2002 there were elections in 14 regions. The governor of Smolensk was elected with 40.51% of the votes, the governor of Penza with 45.45% and the governor of Krasnoyarsk with 48.07%.
51. The elections of the President of the Republic of Udmurtia and of the governors of the Altai and Krasnodar krais, the Arkhangelsk, Voronezh, Kaluga, Murmansk, Ryazan and Chita oblasts and the Koryak autonomous district were held on 14 March 2004. In these regions, regional legislation requires an absolute majority of votes for election and a turnout of 25%, or 20% in the case of Udmurtia, Krasnodar krai and the Arkhangelsk and Kaluga oblasts.
52. Ten candidates were elected in the first round. By way of example, second rounds were held in the Arkhangelsk, Briansk oblasts and the Altai krai. The outgoing governors were not elected in those regions and it was other candidates who won.
3.3. Election of regional legislative assemblies
3.3.1. The new electoral system
53. On several occasions President Putin has stressed the need for a true party system in Russia, which implies greater involvement of federal political parties at the regional and, in due course, local level.
54. The single-member constituency system makes it more difficult to form coalitions that provide, instead of a mere collection of individual representatives of towns and administrative divisions, a real majority assisting and checking on the governor or president.
55. The electoral system for regional assemblies was altered by an amendment of 12 June 2002 to the federal law on Russian Federation citizens’ electoral rights and right to vote in referendums. Article 35 (Presentation of candidates, lists of candidates, electoral unions, electoral blocs), §16, provided: “At least half the mandates of members of the legislative (representative) body of the Constituent Entity or in one of its chambers shall be shared among the lists of candidates submitted by electoral associations and electoral blocs in proportion to the number of votes obtained by each of the lists of candidates. The law of the Constituent Entity may lay down a minimum percentage of votes which lists of candidates must obtain to be eligible for a share of the mandates. The minimum percentage must be set so that two or more lists of candidates having received overall over 50% of the votes are eligible for a share of the mandates”.
56. These provisions were included in the Federal Law of 24 June 2002 supplementing the Law of 6 October 1999: “At least 50% of the members of the legislative (representative) body of a Constituent Entity must be elected in a single electoral constituency in proportion to the number of votes obtained by candidates presented by electoral associations or electoral blocs in accordance with the legislation on elections. In the case of a bicameral legislative (representative) body this rule shall apply to one of the two chambers”.
57. In his speech of 18 February 2003 President Putin stated that “the emergence of parliamentary groups of Russian national political parties in the legislative assemblies of Constituent Entities is creating the foundations – at least that is the hope – and indeed must create the basis of a Federation-wide political and party system. That is why the transition to such a system may be an important step on the way to perfecting the democratic structure of government and society”. He added on 9 December 2003 that a system in which regional parliaments were formed by party list would make it easier to promote their ideas in the State Duma.
3.3.2. Recent elections
58. In 2002 elections were held in 18 Constituent Entities, but in most of them on the basis of the 1999 law. The regions have now amended, or are in the process of amending, their electoral laws. Elections to the legislative assemblies of the Karatchaevo-Cherkes and Tatarstan Republics, the Altai krai, the Sverdlovsk and Yaroslavl oblasts and the Ust-Orda Buryat autonomous district took place on 14 March 2004.
4. Relations between Constituent Entities and the President
4.1. The President and the federal districts
4.1.1. The powers of the President
59. The powers of the President are based on Article 80 of the Constitution. The President is the guarantor of the Constitution of the Russian Federation and of human and civil rights and freedoms. In accordance with the procedure established by the Constitution of the Russian Federation, he takes measures to protect the sovereignty of the Russian Federation, its independence and state integrity, and ensures co-ordinated functioning and interaction of state government bodies.
60. The President of the Russian Federation determines the basic objectives of state domestic and foreign policy in accordance with the Constitution of the Russian Federation and federal laws.
4.1.2. The powers of the plenipotentiary in the federal district
61. The presidential plenipotentiary in each federal district sees to implementation of federal laws, decrees of the Federation President, decisions of the federal government and federal development programmes. He or she co-ordinates federal agencies in the district.
62. The first task, on appointment, of the presidential representatives in the federal districts has been to persuade the regional authorities to bring their legislation into line with federal legislation.
4.2. The Russian Federation President’s Council of State
63. The advisory body, the State Council, examines all matters of importance to the public authorities (culture, international policy, housing, water, transport, infrastructure, etc.) so that the Constituent Entities’ views are obtained through the heads of executives on the council. With regard to local self-government and federalism, the rapporteurs note with satisfaction that the two federal laws enacted in 2003 were the subject of a State Council meeting on 18 October 2002 at which both were presented and discussed. The presidium then met in November 2002 to round off discussion.
5. Distribution of powers and financing
64. As stated above, one of the major concerns of the Kozak commission has been to ensure that the powers of the three levels (federal, regional and local) match their financing.
65. Article 26.3 of the federal law on the general organising principles applying to legislative (representative) and government bodies of Constituent Entities (the Law of 6 October 1999 as amended) gives quite an extensive list of matters which fall within the joint jurisdiction of the Federation and the regions (Article 72 of the Constitution) and which are financed by the regional budget but may receive supplementary financing from the federal budget and from federal non-budget funds.
66. The financial provisions (Arts. 26.15 to 26.20) still only lay down principles, which will have to be given substance by further laws. Many of the provisions will not come into force until the federal law amending the Budget Code and Tax Code by 1 January 2005 has been enacted.
67. In the present law the distribution of powers is linked to responsibility for financing, which is in accordance with the connexion principle, but the results of applying these new provisions will be heavily dependent on the Constituent Entities’ actual resources and the financial-equalisation procedures that will have to be set up between them. The principle of such financial equalisation is laid down in Article 26.7: financial equalisation will be effected by allocation of support funds from the federal budget to the Constituent Entities.
68. The Presidential Commission on Federal Relations and Local Self-Government is responsible for drafting proposals to improve legislative regulation “so as to eliminate overlap between Constituent Entity government bodies and local self-government bodies”. Its remit also includes examining draft federal constitutional laws and draft federal laws on powers of Constituent Entity government bodies and local self-government bodies which the State Duma has approved at the first reading and sent to the President of the Russian Federation, and similar legislation which the President of the Russian Federation draws up for submission to the State Duma.
6. Monitoring procedures and ways of resolving conflicts
69. Chapter V of the Law of 19 October 1999 (amended) deals with ways of checking that Entity law is in conformity with federal legislation, and provides, on a judicial basis, for imposing penalties on elected organs in cases of non-compliance.
70. It may be wondered, however, whether it is reasonable always to have the President to the fore in federal monitoring/supervision procedures. Why not give the courts and the procurators a greater role?
71. Lastly the rapporteurs, as elected representatives, would like to stress that the procedures laid down in Article 29.2-3 (dismissal) should be the ultima ratio when faced with a serious violation of federal law, and an extensive reading of these provisions should be avoided at all costs.
7. Regional participation in federal legislation
7.1 The participation procedure
72. Constituent Entities have the right to instigate a federal law, but the procedure for direct access to the State Duma is not very efficient: in 10 years only 2.5% of draft legislation which the regions have submitted to the State Duma has become law9.
73. The procedures for participation by Constituent Entities in drawing up federal legislation in areas of joint jurisdiction were first established by Article 13 of the Law of 24 June 1999 on principles and procedure for apportioning jurisdiction and powers among Russian Federation government bodies and Constituent Entity government bodies. Article 13 was amended by the Law of 20 May 2002, and under the Law of 4 July 2003 it became Article 26.4 of the federal law on the general organising principles applying to legislative (representative) and government bodies of Constituent Entities” (Law of 6 October 1999 as amended).
74. Participation by Constituent Entities is provided for in areas of joint jurisdiction. Their legislative and government bodies are involved when draft laws are submitted to the State Duma, and their legislative bodies after the State Duma has adopted draft laws at first reading. The arrangements are as follows:
1) before submission to the Duma there is consultation with Entity legislative and government bodies on draft federal laws in areas of joint jurisdiction. After submission to the State Duma the draft legislation is referred back for submission of any objections within 30 days10. If over one-third of the Entities come out against the federal legislation the State Duma sets up an arbitration board;
2) drafts passed by the State Duma at first reading are referred to Entities’ legislative bodies, which have 30 days to submit amendments; during this period the State Duma cannot go on to the second reading.
7.2 The Federation Council of the Federal Assembly
75. The 1993 Constitution very briefly prescribes the composition of the Federation Council: the Federation Council includes “two representatives from each Constituent Entity: one from the legislative and one from the executive State government body” (Art.95.2). The procedure for forming the Federation Council is established by federal laws (Art.96).
76. In 1993 this provision was not applied: the members of the first Federation Council were elected for two years by universal suffrage. From 1996 to 1999 the Federation Council consisted of heads of regional executives and presidents of regional legislative assemblies.
77. The representativeness of members of the Federation Council has come under discussion: they have not been elected by universal suffrage like members of senates in countries which have that institution, and unlike the German Bundesrat they do not have the representativeness that membership of regional government confers.
7.3 The Federation Council’s Council of Legislators
78. The “Council for the relations of the Upper House of the Federal Assembly with legislative bodies exercising state power in the regions – Council of Legislators of Russia” was created on 21 May 2002, at a meeting at the Federation Council with regional legislative bodies in the presence of President Putin.
79. The council elected an 11-member praesidium chaired by the Federation Council president which meets once a month. The council meets every 6 months with the President of the Federation presiding. In particular it met on 18 February and 9 December 2003.
8. Conclusions
80. Unquestionably the Kozak commission and the Russian legislature have made a considerable effort to clarify and explain the constitutional provisions on Federation–Entity relations, particularly with regard to apportioning jurisdiction in joint matters. In the rapporteurs’ opinion, this work will enable Russian federalism to progress with greater clarity. At the same time the new law seems flexible enough to deal with specific situations or handle crises (by means of treaties, that is) in accordance with the Federal Constitution.
81. This concern for clarity and precision is laudable, and is helping to put an end to situations in which regional legislation was flatly contradicting federal law. From this point of view the effort made throughout 2002-2003 to bring regional legislation into line with federal legislation is to be welcomed.
82. The rapporteurs support the process of reform while keeping an eye on developments as regards exercise of exclusive Entity powers and Entity powers in areas of joint jurisdiction within the new framework established by the law. They are also keeping an eye on monitoring and federal surveillance and hope that the judiciary will play a full part in them.
83. The entry into force of federal provisions requiring, to assist representation of parties at regional level, that 50% of regional-assembly members be elected by proportional representation is to be welcomed. Analysis of electoral figures should give an indication of the measure’s effectiveness given the declining influence, at federal level, of parties other than United Russia.
Chapter II LOCAL SELF-GOVERNMENT
1. Introduction. The Constitution, the 1995 federal law on local self-government and the new federal law of 2003 (Article 2 of the European Charter of Local Self-Government)
84. The Council of Europe Congress made an initial monitoring visit in 1997 on Russian commitments regarding local self-government. On that occasion the final report and the recommendations adopted enthusiastically emphasised the considerable efforts the Russian Federation had made to progressively establish and then strengthen local self-government. Two fundamental documents make it possible to assess the legal situation in local self-government: the 1993 Russian Federation Constitution and the 1995 federal law on local self-government.
85. The Russian Constitution (Articles 130-133) contains important principles safeguarding local self-government, such as the definition of local self-government as a natural right of both local authorities and their citizens, the principle of local self-management, the principle of keeping state authority (of the Federation and the Constituent Entities) distinct from local self-government, the right of local authorities to an appropriate economic base and the right to legal protection. The Constitution thus already introduced the basic principles of the European Charter of Local Self-Government, which the Federation ratified in 1998 and incorporated into Russian law (Art.15.4.1 of the Constitution).
86. Under the Russian Constitution, the constitutional principles on local self-government are expressed as general principles on the organisation of local authorities by legislation that is not limited to the level of the Russian Federation. The legislative role falls both to the Federation and its Constituent Entities. They set the frame, within which local autonomy must be free to express itself.
87. It is for federal law to say how much uniformity or variation is allowed as regards general principles, leaving it to Constituent Entity legislation to establish them.
88. The 1995 federal law on local self-government opted for federal regulation of the broad principles, thereafter extensively leaving matters to regional legislation.
89. The 1995 law (62 articles) does not establish any uniform system of local and regional organisation; it confines itself to laying down a criterion for apportioning powers and responsibilities between the regional and the local level. It also regulates the local self-government bodies, the forms of direct expression of the popular will (with highly advanced rules), the economical and financial basis of local self-government and the guarantees of local autonomy.
90. The 1995 choice was very brave, because it was based on the principle of very widespread local self-government and its possible diversification on a regional basis.
91. This choice involved many risks, emphasised inter alia in the 1997 report:
a) the almost complete previous absence of local self-government, in which the rank and file showed little interest (in the Soviet system local government was nothing more than the local level of a hierarchical and rigid power system);
b) the general scarcity of resources following the transition from a planned economy to a market economy;
c) giving Constituent Entities a decisive role in the organisation of local government in their territory, with regard both to local-government structure and the degree of supervision of local authorities.
92. Although it did not take issue with dividing power to legislate on local self-government between the Federation and the Constituent Entities, the 1997 report pointed out that many Entities were not obeying the Constitution, federal legislation or Constitutional Court rulings.
93. More generally it stressed the inadequacy of the financial, technical and human resources allocated to local authorities, due to the Constituent Entities’ not giving the matter proper attention.
94. It pointed out the tendency in some Constituent Entities to regard the higher level of local government (raions and cities not included in the raions) not as local authorities endowed with autonomy but as Entity government bodies and therefore under pronounced regional control, contrary to the constitutional principle of keeping central authority distinct from local self-government.
95. Lastly it recommended that the Federation should make a substantial effort to co-ordinate regional legislation (including provision of model laws) in order to avoid undue differences between the Constituent Entities with regard to local government.
96. A new federal law was promulgated on the general organising principles of local self-government after
many of the fears expressed about unsuccessful implementation or misimplementation of the 1995 law proved to be founded.
97. This new law is similar in structure to the 1995 law. It has 86 articles and its aim is to establish a uniform framework of general principles on local self-government.
98. The principal aim is to create a more structured, more uniform system of local government throughout the Russian Federation. In particular the law seeks to keep to a minimum the differences which regional powers in this area have caused. Thus the central themes of the law are as follows:
a) a rationalised local-authority system based on three types of local self-governmet – the rural or urban commune (poselenie), the municipal district (munitsipalnyi raion) and the urban district (gorodskoi okrug);
b) a very clear distinction in powers between the three types of local authority;
c) a clear distinction between inherent functions and delegated functions: in the case of the former, the principles of economic and financial self-sufficiency and freedom from supervision apply; in the case of the latter, on the other hand, the central bodies delegating the functions may finance them (even with special appropriations) and supervise performance of them;
d) creating, as far as possible by way of federal legislation, favourable conditions for the exercise of local self-government;
e) greater accountability of elected bodies for performing functions of local importance;
f) a larger role for representative bodies;
g) more active community involvement in local affairs.
99. The aims of the new federal law seem to offer a framework for wide sharing of powers and to ensure proper, systematic, more effective compliance with the principles of the European Charter of Local Self-Government throughout the Russian Federation. However, a number of comments need making. In the following paragraphs we will examine the principal aspects of the new law, emphasising those that are positive and those that raise problems.
2. Federal legislation on local self-government and its application (Article 2 of the Charter)
100. Implementing the federal laws on local self-government is proving very complex. Even in 1995 the framework federal law failed to cover all aspects of regulation of local self-government. In addition to Constituent Entity general legislation on local self-government (which was enacted almost everywhere) it was necessary to resort to a mass of “ancillary” federal and regional legislation on crucial aspects of the system such as:
a) the financial basis (the appropriate federal law, as well as amendments to the federal Tax Code and Budget Code; 26 Constituent Entity laws on the financial basis of local self-government);
b) the municipal public service (a federal law and 82 Constituent Entity laws);
c) the constitutional rights to vote and stand in local elections (a federal law and 87 Constituent Entity laws).
101. Further important aspects of regulating local self-government are evident in other federal and regional laws, such as the Federal Town Planning Code, the Federal Civil Code and regional laws on the rights and duties of local elected representatives.
102. Implementation of the new federal law promises to be similarly complicated. It provides for revision of several federal laws and most of the regional laws on local self-government, together with a thorough review of the organisation of local and regional government. In this light it is easier to understand why a lengthy transition phase has been provided for implementing it. Only a few provisions enter into force immediately. Other measures are planned to bring in the reorganised system (with new administrative authorities set up, their bodies elected and their statutes approved) on 1 January 2006. The plan is for the system to be operational in 2006. In that connection 2004 is regarded as a crucial stage for enactment of the amended Budget Code and Tax Code.
103. The federal level (the Presidential administration, the government and the Federation Assembly) has devoted a large amount of effort to this gigantic undertaking. Constituent Entity governments and elective assemblies and local-government organs will have to do likewise, in spite of all the problems raised by a law that seeks to make the local self-government system more consistent and more transparent.
3. Differentiation between state power and local self-government (Article 3 of the Charter)
104. The constitutional principle of differentiation between state bodies (federal and regional) and local self-government bodies is the basic guarantee of local autonomy. The law (Art.1.2) defines this as “the independent management by the people of local affairs, directly or through elected organs”.
105. As has been said, the emphasis on the boundaries between public-authority jurisdictions comes from a determination to radically alter the institutional structure of the country’s public administration and set it on new foundations.
106. The new federal law reinforces the principle, making a sharp distinction between functions appropriate to local authorities (clearly listed) and those which can be delegated to them and fixing precise rules for delegation:
a) there has to be a law (federal or regional) for making the delegation;
b) the content of the delegation legislation is specified (clear identification of the bodies entitled to delegate, stipulation of the financial resources to be transferred, and the arrangements for monitoring and supervising performance of the delegated functions);
c) the right to refuse delegation if the legal requirements are not met (particularly transfer of appropriate resources).
4. The new local-government organisation (Article 5 of the Charter)
107. The new federal law attempts to rationalise the organisation of local government as much as possible so as to create the necessary conditions for more stable, more orderly development of local self-government throughout the country.
108. This aim seems quite acceptable, stemming from a desire to strengthen local government, especially in the Constituent Entities which were not making proper use of their powers to regulate local self-government.
109. In particular the law seeks to reduce the number of different types of local authority, and to set up a Federation-wide system with three types. The system will comprise firstly the commune (poselenie), whether rural or urban, and secondly the municipal district (munitsipalnyi raion [referred to hereafter as raion]) and the urban district ((gorodskoi okrug). This change should have a profound effect on the incomplete and probably over-diversified organisation which the 1995 law produced.
110. It is expected that there will be an increase in the number of communes, but also greater clarity as to their status as municipal authorities endowed with legal personality and their own organs and resources. The rapporteurs have noted that at present statistics refer to over 24,000 rural authorities (only about 8,600 of which are said to be registered as being real municipal authorities) and over 155,000 rural settlements (not registered as municipal authorities). In all there are at present 11,500 municipalities. According to the forecasts there could be as many as 25,000 of these.
111. Under the new framework law, the Constituent Entities have until 1 January 2005 to set local authority boundaries and designate local authorities as urban or rural communes, urban districts or municipal districts. That means that the Constituent Entities must by that date draft and adopt new versions of their laws on the setting or alteration of local authority boundaries and on setting up, altering or abolishing local authorities, taking account of the needs of the local communities concerned. Here the rapporteurs would make two observations, mainly addressed to the Constituent Entities:
a) care needs taking not to set up communes lacking adequate economic, financial and human resources to perform their assigned functions;
b) the transition from the present urban commune [town or city] to the « urban district » (gorodskoy okrug) is extremely important to the development of towns and cities in Russia and consequently to the development of the country as a whole. Although under the new law the regional legislature alone will be empowered to decide definitively whether a particular town or city can have urban-district status, change of status or refusal of change of status should require approval by the people. It is advisable to preserve urban municipalities, above all the cities, that have a sound economic and social base and communities that identify clearly with the municipality
112. At raion level the present multiplicity of organisational approaches will be reduced to a choice between two:
a) direct election of organs, conferring autonomous authority compared with the organs of communes in the raion;
b) indirect election of organs by the representative organs of the communes, which has the effect of conferring derived authority. Because of this, as in the case of the Spanish Diputacion provincial, what we have is more akin to inter-commune co-operation. The rapporteurs note that in this specific case the head of the raion has to be (Art.36.1.5) the president of the representative organ and cannot be the head of administration.
113. The choice between the two models is not contrary to the European Charter of Local Self-Government, because the widespread establishment of new communes guarantees respect for the principle of direct election, while having a second tier with indirect election is not an obstacle to local democracy (see the Spanish Diputaciones, which are deemed to comply with the European Charter of Local Self-Government).
114. The procedure for forming new local authorities is of great importance in the new local-government system. The new federal law on local self-government contains several relevant provisions. These can be examined from the standpoint of the Charter requirement (Art.5) to consult the citizen:
a) the law has different procedures for modification or restructuring: in the case of communes and okrugs these require referendums (or citizens’ assemblies), while in the case of raions the recommendation of the representative organs of the communes concerned is in general sufficient, except where a commune is to be taken from one raion and attached to another, which also requires a referendum;
b) the following are controlled in all modification or restructuring: the power to initiate the process (acknowledged as a right of the people, local organs and regional and federal organs), the criteria and minima, and the source of law that permits modification/restructuring (Constituent Entity legislation).
5. Apportionment of powers (Article 4 of the Charter)
115. Under the new federal law on local self-government this is part of a more extensive redistribution of powers among all levels of public authority in the Russian Federation which began with the work of the Kozak commission, taking the interests of Constituent Entities into account and culminating in the enactment of two framework laws.
116. As regards local self-government proper, there are two apportionment criteria:
a) the lists of commune, raion and okrug inherent functions;
b) the principle that local authorities are free to take on other functions, subject to not encroaching on those expressly assigned elsewhere (to other local authorities or other levels of government) and to having available finance of their own.
117. The principle of subsidiarity set out in Article 4.3 of the Charter requires that “public responsibilities” be allocated to the “authorities closest to the citizen”. This principle is applied in the general allocation to local authorities of questions of local interest, the long list of functions which the law allocates to them and their freedom to take on new functions (even if subject to having the necessary finance of their own).
118. The principle of full and exclusive powers (Art.4.4 of the Charter) is also complied with, at least to the extent that the powers given contain no provision for intervention by other bodies or levels of government; thus responsibilities are reasonably clearly differentiated.
119. Responsibility for education and health will be transferred to the regional level (except the municipal districts (raions) and urban districts (okrugs)). In itself such a transfer does not run counter to the Charter principle if applied with due regard for subsidiarity.
6. Financial and fiscal autonomy of local authorities (Article 9 of the Charter)
120. Article 9 of the Charter devotes much attention to the financial resources of local authorities, which are regarded as one of the best guarantees of their autonomy.
121. The general provisions of the federal law on local self-government (in the chapter devoted to the economic foundations of local self-government) appear to be in accordance with the Charter. However, since implementation and fine-tuning depend on much other legislation (in particular the Budgetary Code and the Tax Code), to which the law expressly refers, a full evaluation can be made only by reference to the regulations as a whole. The thoughts that follow are an initial evaluation of the law and the available information on current plans for amending the various budgetary and tax-revenue regulations at the various levels in the Russian Federation.
122. As we have seen, the basic principle regarding financial and taxation resources is consistent with the distinction between local authorities’ own or inherent powers and the powers delegated to them by higher levels of government (the Federation or regions).
123. As regards their own powers, the principle is to ensure that there are sufficient resources for exercising them and to exclude any obligation as to the use made of them. On the other hand, delegated functions are financed by transfer of funds from the budgets of the delegating levels of government, and these transfers may be tied to actual performance of the functions.
124. The federal law does not lay down any precise relationship between own resources and transferred resources; it merely lists types of revenue, including revenue from financial equalisation.
125. Among own resources, the general federal law (and the draft amendments to the Budget Code and Tax Code) includes revenue either from local taxes or the local share of regional or federal taxes (shared taxes). It seems that in future a smaller proportion of local authority tax revenue will come from local taxes, which are low in yield (eg land tax and the tax on the property of natural persons in the case of communes; rural land tax, transport tax and retail tax in the case of the raions; both types in the case of okrugs). The most important factor will the share of income from federal and regional taxes (the rate of which will have to be set by Constituent Entities according to uniform and stable criteria).
126. The rapporteurs point out that only local taxes are to be regarded as own revenue, of which local authorities, “within the limits of statute, … have the power to determine the rate” (Art.9.3 of the Charter). As the legislation stands, the scope for giving local authorities increased fiscal autonomy therefore seems rather slight.
127. At the same time the rapporteurs are pleased to see that the framework law establishes the principle that overall resources need to match new responsibilities. The effectiveness of that principle depends on the amendments that are to be made to the Tax Code and Budget Code: the reform could be jeopardised if the new local authorities ended up without the necessary resources proportionate to their functions. This is an issue of prime importance.
128. The planned equalisation fund, which the federal law intends to make grants to the communes direct, whether at the regional or the raion level, is certainly more in conformity with the European Charter of Local Self-Government. The system of “negative transfers”, which requires the wealthier authorities to transfer resources to the fund for redistribution to the poorest authorities, is also useful.
129. The law provides for special compensation funding for performance of delegated functions; this funding is to be quantified, redistributed and transferred to the local authorities separately from other transfers (from the equalisation fund). A further important point is that the delegator of functions has responsibility for their entire financing. Local authorities, already in deficit, cannot on their own take on the cost of governmental functions delegated to them.
7. Non-fiscal resources, in particular public property (Article 9 of the Charter)
130. The Charter does not expressly mention the public property of local authorities, because it is regarded as part of their own resources available for the performance of their own functions11.
131. In the Russian Federation, however, the question assumes great importance because there is still a huge amount of public property, inherited from the Soviet system.
132. This raises the general issue of exploitation – whether by public authorities or the market – in relation to that part of it deemed surplus to public requirements and requiring privatisation.
133. At this stage the draft law on public property has not yet been laid before the Federal Assembly and work on it continues. In that connection and as a contribution to the debate, the rapporteurs merely observe that in their view strict application of the principle of matching assets to powers rules out unofficial local authority use of property to supplement their own financial resources or retaining it for some future use in accordance with their own powers.
134. Secondly, the close connection between property and powers might create problems in the event of a reapportionment of powers. Consideration must be given to partial transfer of powers or multi- or general-purpose buildings or land.
8. The form of government in local authorities. Relations between the executive and the assembly
135. The federal law leaves local authorities extensive autonomy with regard to their form of government – choice of organs, procedures for setting them up, length of mandate and relations between organs – but requires them to set broad limits (the necessary organs, procedures for approving the statute, a few current models to choose from). It does so with three aims:
a) distinguishing between the different local-authority organs (the executive, the assembly and the administrative services) as regards their powers and responsibilities;
b) enhancing the role of the representative organ (the assembly);
c) making the organs more accountable for performance of local functions.
136. The law provides two separate models for relations between the executive and the assembly:
a) a parliamentary-type model, in which the representative organ is elected by universal suffrage, whereas the leader of the local authority is elected by the representative organ, over which he presides. In this case the leader of the local authority cannot be the head of the administration enhancing the role of the representative organ (the assembly);
b) a presidential-type model, in which all the organs, representative and executive, are elected by the citizens by direct suffrage. The statute may determine whether the elected leader of the local authority is a member of the representative organ (and whether he presides over it), or the head of local administration. In the latter case relations follow the classic presidential model: the two organs operate quite separately and the leader of the local authority has powers of initiative and consultation and power to reject the representative organ’s regulatory measures.
137. In general the law gives the representative organ the main regulatory and planning functions of the local authority. In the presidential model a leader of a local authority who is also the head of administration has substantial management powers in practice, but has to have the agreement of the representative organ regarding regulatory and planning powers.
138. There is no provision for an express political link between the leader of the executive/administration and the majority in the assembly. The majority may even form around the particular issue. The executive can neither raise issues of confidence nor cause the dissolution of the assembly by resigning.
139. The presidential model leans towards an executive which has its own separate electoral legitimacy and
cannot be subjected to a motion of censure by the representative organ.
140. The new federal law establishes a precise organisational requirement concerning local administration,
which it keeps separate from the representative organ’s regulatory and policy-setting powers. It introduces a feature which the 1995 law did not have. While the latter consistently made the leader of the local authority (elected directly or indirectly, and so a political function) the head of administration (a bureaucratic function), the new law gives local authorities a choice of two models in drawing up their statutes, the one being the same as the model in force, in which the two functions are superimposed, and the other based on contractually assigning the responsibilities of head of administration to a person whom the local authority recruits by competitive examination. In the former case the superimposition of political and administrative aspects is retained, whereas in the latter the two aspects are very clearly separated.
141. Each model has its advantages and drawbacks12.
142. In the first case the holding of the two offices by a person directly elected by the population ultimately transfers most of the local administrative power to that person. This may create conflict between the executive and the assembly (aggravated by the fact that the head of the executive is not legally answerable to the assembly).
143. In the second case having two persons is conducive to a clearer power apportionment between a purely political power (exercised by the political organs, representative and executive) and an administrative one (under a head of administration answerable to the assembly, which can dismiss him). The distinction could help establish a political dimension in local self-government, in addition to ensuring the necessary impartiality of administration.
144. The new federal law grants legal personality equally to the representative organ (Art.35.9) and the local
administrative services (Art.37.7).
145. The rationale seems to be to keep the responsibilities appropriate to the representative organ (putting it in a more secure position) more clearly separate from those of the administrative one (starting with its leader).
146. The possible result, in addition to repetition of the procedures for recognition of legal personality, is that the local authority, which is the real guardian (together with the citizens) of local self-government, loses its unity. All the organs of the local authority, whether they are politico-representative, politico-executive or administrative, always work for and on behalf of the authority of which they are the manifestation.
9. The system of supervision of local authorities (Article 8 of the Charter)
147. The system of supervision laid down by the federal law seems well designed: administrative supervision of inherent functions is done away with, only review of lawfulness being retained. Supervision (federal or regional) of performance of “state” functions delegated to the local authorities remains.
148. Review of lawfulness is performed by the Prokuratura and deals with compliance by local self-government organs and officials with the Federal Constitution, federal laws, Constituent Entity legislation and municipal statutes and legal instruments (Art.77).
149. Then there are the provisions of Chapter X (Articles 70-78) on the accountability of local self-government organs and officials. The organs can be dissolved (if they are collegiate), dismissed (if they are monocratic) or temporarily replaced if found guilty by a “competent tribunal” of breaking the rules (federal, regional or local) or of “improper exercise of delegated state powers” (Art.72). Even though the grounds for dismissal are possibly rather wide the procedures in Article 75.6 of the new framework law offer sufficient protection of local authorities’ interests. In any event proceedings against elected organs must be very much the exception, as provided in the legislation, and should be used only in very grave circumstances.
150. In a way it might be said that supervision of measures, being more objective, provides better safeguards for local-authority organs and officials, and so for local self-government: whether entrusted to administrative or judicial bodies, such supervision makes it possible to distinguish between illegality of the measure and liability of the official (only, in the latter case, for serious breaches of the legislation).
10. Legal protection of local authorities (Article 11 of the Charter)
151. Legal protection of local self-government may be seen in two ways: as protection for the bodies concerned in relation to supervision or intervention by outside agencies which might interfere with independent decision-making about local interests; and as protection for the local authority itself from any legislative or administrative measure that would be detrimental to its autonomy (ie reduce its powers and resources or the guarantees laid down in its statutes).
152. Although the new framework law does not contain the general provision in the 1995 law allowing local authorities to apply to the ordinary or arbitration courts for annulment of government measures infringing local authorities’ rights, it does, instead, lay down the circumstances and specific cases in which local authorities may apply for legal protection (see Articles 7.5, 21.3, 22.5, 44.7 and 75.6).
153. It is now Article 251 of the New Code of Civil Procedure that is the general provision allowing local authorities to apply to the courts if they regard legislative measures as infringing their rights or as illegal.
154. Application to the Russian Federation Constitutional Court was discussed during drafting of the new framework law and is still a possibility. It is desirable, as the Congress recommended back in 1997, to amend the constitutional law on the Russian Federation Constitutional Court so as to empower local authorities to refer direct to the Constitutional Court any federal law or regulation contrary to their rights.
155. The Court itself has come up with an intermediate solution. In a judgment of 2 April 2002 it recognised the right of elected authorities, local self-government organs and indeed the electorate to ask it to protect the rights of local authorities, as “local unions of citizens collectively exercising the right to local self-government under the Constitution of the Russian Federation”. There are limits to this right of petition, however: appeal is only against judicial decisions, and for an organ to apply to the Constitutional Court there must first be provision for it in the local authority’s statutes.
11. Conclusions
156. The process of local self-government reform in Russia seems affected by a number of problems of varying degrees of seriousness and importance:
a) first of all, there is the very scale of the undertaking: to guarantee a proper system of local self-government throughout the Russian Federation, based on democracy and direct election, local management of local matters, and full accountability of local government bodies to the local community and (in the case of delegated functions) to the Federation and Constituent Entities;
b) secondly, there is the legacy of the past, which effectively wiped out any experience of actual local democracy by keeping local administration within a rigid vertical chain of command. However, even the latest post-Constitution experiment, intended to develop Constituent Entities as regulators of the reform process within their borders and develop the local-government bodies themselves, in fact led to undue diversity of local self-government models and experiments and had an adverse effect on that autonomy (often overwhelmed by the excessive burden placed on the Constituent Entities) and on knowledge of the legal position regarding the individual local authority (as a result of too many variations in their statutes);
c) thirdly, the country’s difficult economic situation (plus social difficulties inherent in the period of economic transition) and the situation of the local authorities in particular, which are suffering today from a structural discrepancy between available resources and the expenditure necessary to meet the basic needs of local communities.
157. The Russian Federation, faced with problems on this scale, seems both fully aware of the difficulty of the undertaking and resolved to conduct the entire reform process in a responsible way.
158. We draw this conclusion in the light of the high standard of the new federal law on local self-government, and also of the commitment to reviewing all other laws, federal and regional, and all local-authority legal instruments (starting with local-authority statutes) for which the law provides. Similarly the role to be played by the new federal districts in coordinating the reform seems a substantial one, not only because of the close links that they have forged with the federal authorities but also because of the collaborative ties that they are in the process of establishing with the authorities at the local level (Constituent Entity and local-authority organs).
159. We have already drawn attention to a few specific points with a view to assisting and improving the reform process; most of these will probably need close attention in the implementation phase.
160. In conclusion we are able to say that federal law is moving towards overall regulation of local self-government, generally in accordance with the Charter. At the same time we see situations which warrant attention. This especially applies to local authorities’ own resources (tax resources in particular) and gradual implementation of federal law so as to put a stop to “unfinanced mandates” (delegation of functions without any transfer of resources).
Appendix 1
Programme of the Congress of the Council of Europe rapporteurs’ 1st visit
(Moscow, 8-9 July 2003)
8 July
Council of Federation of the Federal Assembly of the Russian Federation
Mr S. MIRONOV, Chairman of the Council of Federation
Mr A. KAZAKOV, Chairman of Regional Affairs Committee and the Federation
Mrs S. ORLOVA, 1st Vice-Chair of the Budget Committee, member of the Russian delegation of the Chamber of the Regions
Administration of the President of the Russian Federation
Mr D. KOZAK, Deputy Head of the Administration of the President of the Russian Federation, Chairman of the Committee on division of powers between different levels of public authorities of the Russian Federation
Congress of the municipalities of Russian Federation
Mr O. SYSUEV, President
Mr A. TCHERNETSKY, Mayor of Ekaterinburg (region of Sverdlovsk), Chairman of the Union of Russian Towns, member of the Russian delegation to the Chamber of Local Authorities of the CLRAE
Mr I. BEZRUKAVNIKOV, Mayor, City of Astrakhan, Member of the Russian delegation to the Chamber of Local Authorities of the CLRAE, Chairman of the CLRAE Committee on the Sustainable Development
Government of the Russian Federation
Mr V. SHIPOV, Vice-Minister of Economic Development and Trade of the Russian Federation responsible for local self-government
Mr S. LAVROV, Deputy Head of the Department of Interbudgetary Relations, Ministry of Finances
Congress of the municipalities of Russian Federation
Mr V. KIRPICHNIKOV, Chairman of the Executive Board of the Congress
Mr I. BABYCHEV, Executive Secretary of the Congress
Mr V. PASHENTSEV, Head of Kransnoarmeisk, Region of Moscow, Member of the Russian delegation to the Chamber of Local Authorities of the CLRAE, member of the Institutional Committee
Mr V. ROGOV, Mayor, City of Pokrov (Vladimir Region), Member of the Russian delegation to the Chamber of Local Authorities of the CLRAE, Vice-Chair of the Committee of Social Cohesion of the Chamber of Local Authorities of the CLRAE
9 July
Administration of the President of the Russian Federation
Mr A. BUSYGHIN, First Deputy Director of the Main Territorial Department of the President of the Russian Federation
Mr A. ZAMOTAEV, Head of the of Local Governments Division, Main Territorial Department of the President of the Russian Federation
Mr E. GUZEEV, Minister of Foreign Affairs, Secretary of the Russian delegation to the CLRAE
State Duma of the Federal Assembly of the Russian Federation
Mr V. MOKRY, Chairman of the Committee on Local Self-Government
Mr . A. OGONKOV, Vice-President of the Committee of Local Self-Government
Council of Federation of the Federal Assembly of the Russian Federation
Committee on Regional Affairs and the Federation
Committee on Local Self-Government
Committee on Legal and Judicial Affaires
Mr V. KADOKHOV, 1st Vice-Chairman of the Committee of Regional Affaires and the Federation
Mr L. ROKETSKY, Chairman of the Committee on Local Self-Government
Mr V. SYTCHEV, Member of the Committee of Regional Affaires and the Federation, member of the Russian delegation of the Chamber of Regions
Mr A. SALTYKOV, Vice-President of the CLRAE
Mr S. VAVILOV, 1st Vice-Chairman of the Committee on Legal and Judicial Affaires, member of the Russian delegation of the Chamber of Regions
Mr L. KOVALSKY, Member of the Russian delegation of the Chamber of Regions
Appendix 2
Programme of the second visit by the CLRAE rapporteurs
(Nijni Novgorod, 28-30 January 2004)
27 January
4.25pm Delegation arrives
5.30pm Meeting with Mr L. Gilchenko, Deputy Plenipotentiary Representative of the President of the Russian Federation, Volga Federal District, with the participation of Mr B. Bargandzhya, head of the Plenipotentiary’s regional service, Volga Federal District
28 January
11am-12 noon Transfer to Bor
12-2pm Meeting with Mr V. Ivanov, Head of Bor District, with the participation of Mr A. Chernyshov, Vice-Chair of Bor District Council, M. Seraphimov, Chair of the District Council local self-government committee, Mr M. A. Mochkaev, Head of the District Local Economy and Forecasts Department
2pm-3pm Working lunch
3pm-5pm Meetings (continued)
5pm Return to Nijni Novgorod
29 January
10am-10.30 Transfer to Kstovo
10.30-12.30 Meeting with representatives of the Kstovo district (rayon) administrative services
12h30-2pm Meeting with Mr A. Lobanov, Chair of the Kstovo District Council, with the participation of Mr V. Pavlov, Vice-Chair of the council, Mr E. Fedotov, Chair of the Budget Committee, Mr I. Zverev, Chair of the Urban Development Committee, Mr N. Gerasimov, Chair of the Social Affairs Committee, Mr S. Melnik, Chair of the Agriculture Committee
2pm-3pm Working lunch
3.30-5pm Visit to the village of Bolsheyelninsky
Meeting with Mr E. Palavin, head of village administration (rural authority)
5pm-6pm Return to Nijni Novgorod
30 January
10am-11am Meeting with Mr E. Lyulin, President of the Nijni Novgorod Regional Legislative Assembly, with the participation de Mr N. Karmanov, Vice-President of the Assembly, Mr V. Portnov, Chair of the Committee on Central Powers and Local Self-Government, Mr V. Olnev, Head of the Assembly Legal Affairs Department, Mr V. Larionov, chief executive, Committee on Central Powers and Local Self-Government
11am-12 noon Meeting with Mr V. Bulavinov, Mayor of Nijni Novgorod and Mr I. Karnilin, President of the City Douma
12-2pm Meeting with members of the City Douma
Mr E. Sabashnikov, Vice-President of the Douma, Ms I. Tarasova, Chair of the Education Committee, Mr V. Lazarev, Chair of the Public Health Committee, Mr M. Vidonov, Chair of the Committee on NGO and Media Relations, Ms O. Shumakova, Chair of the Social Affairs and Culture Committee, Mr V. Pachenov, Vice-Chair of the Budget Committee
2pm-3pm Working lunch
3pm-4pm Meeting with Mr V. Kirienko, 1st Vice-Governor of Nijni Novgorod Region
4pm-5pm Meeting with Mr S. Kirienko, Plenipotentiary Representative of the President of the Russian Federation, Volga Federal District, with the participation of Mr L. Gilchenko et Mr B. Bargandzhya
5pm-5.30 Press conference given by Mr G. Rhodio, head of the Congress delegation
5.30-6.30 Meeting with Mr L. Gilchenko, Deputy Plenipotentiary Representative of the President of the Russian Federation, Volga Federal District
31 January Delegation leaves
Appendix 3
Programme of the third visit by the CLRAE rapporteurs
(Moscow, 31 March – 2 April 2004)
31 March
Russian Federation Central Electoral Commission
Mr A. VESHNYAKOV, Chair of the Russian Federation Central Electoral Commission
Office of the Chief Prosecutor of the Russian Federation
Mr Y. BIRIUKOV, Deputy Chief Prosecutor
Russian Federation Supreme Court
Mr V. ZHUYKOV, Vice-President
1 April
Congress of Russian Local Authorities
Mr O. SYSUEV, President
Mr V. KIRPICHNIKOV, Chair of the Executive Board
Mr I. BABYCHEV, Executive Secretary
State Duma of the Federal Assembly
Mr V. MOKRY, Chair of the Committee on Local Self-Government
Federation Council of the Federal Assembly
Mr L. ROKETSKY, Chair of the Local Self-Government Committee
Mr A. SALTYKOV, member of the Local Self-Government Committee, member of the Russian Delegation to the Council of Europe Congress
Federation Council of the Federal Assembly
Mr A. KAZAKOV, Chair of the Regional and Federal Affairs Committee
2 April
Russian Federation Government Institute for Legislation and Law
Ms KHABRIEVA, Director
Prof. POSTNIKOV
Prof. VASILIEV
Dr POLUSHIN
Government of the Russian Federation
Mr V. SHIPOV, Vice-Minister for Economic Development and Trade with responsibility for local authorities
Government of the Russian Federation
Mr D. KOZAK, Minister in charge of Government Administration, Chair of the Presidential Committee on Federalism and Local Self-Government
Administration of the President of the Russian Federation
Mr A. BUSYGHIN, First Deputy Director, General Territorial Department of the President of the Russian Federation
1 Article 2.3 of the Statutory Resolution of the Congress (adopted by the Committee of Ministers on 15 March 2000).2 Albania, Armenia, Azerbaijan, Belgium, Bosnia-Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, Moldova (two reports), Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia and Montenegro, Slovakia, Slovenia, Spain, Turkey, Ukraine (two reports) and United Kingdom.
3 Conferences on local finances (Moscow, October 2000), on legislation regarding local self-government (Moscow, June 2001), on apportionment of powers among the various levels of authority (St Petersburg, April 2002) and on unity in diversity (Kazan, July 2003).
4 The commission has recently become the Commission for Federal Relations and Local Self-Government, still chaired by Mr Kozak. It is a permanent body answerable to the President of the Russian Federation. Mr Kozak was recently appointed Head of the Federal Government Secretariat.
5 Decree No. 849 of the President of the Russian Federation of 13 May 2000 on the Russian Federation President’s plenipotentiary in the federal district.
6 The commission consists of representatives of the Presidential Administration (5), the Government (4) and the Federal Assembly (8), 5 regional representatives (N. Merkuchkin, leader of the Republic of Mordovia, M. Chaimiev, President of the Republic of Tatarstan, V. Pozgalev, governor of the Vologda Oblast, S. Sobyanin, governor of the Tyumen Oblast and V. Tolokonovskii, head of administration of Novosibirsk Oblast, 2 representatives of municipal authorities (O. Sysuev, President of the Congress of Local Authorities of Russia and A. Chernyshev, the mayor of Rostov on Don) and 6 representatives of research institutes and experts.
7 See p. 11.
8 In its decision of 18 January 1996 the Constitutional Court took the view that “state power in Constituent Entities must be based on the principles of a democratic federal state governed by the rule of law with a republican form of government (Art.1.1), the unity of the system of state power (Art.5.2) and the exercise of state power on the basis of the separation of legislative, executive and judicial powers and the resultant autonomy of the relevant bodies (Art.10).
9 V. Putin, speech to the Council of Legislators, 9 December 2003.
10 If the opinion is unanimous, it is accepted or refused. If there are diverging opinions, no position is expressed.
11 As stated in Council of Europe Congress Recommendation 132 (2003).
12 The Congress is working on a report dealing with the advantages and disadvantages of direct election of the local executive. The report examines questions of institutional balance in detail.