Rapporteur: Mr. A. Tchernoff (Netherlands)
I.The Russian Federation and the European Charter of Local Self-Government
The Russian Federation became a member of the Council of Europe on 28 February 1996. Therefore, Russia must not only accept the principle of the rule of law, as laid out in Art. 3 of the Statute of the Council of Europe, but must also accede to the European Convention of Human Rights as well as to the European Charter of Local Self-Government (hereinafter referred to as: the Charter). These obligations are expressed in Resolution 193 (1996) of the Parliamentary Assembly of the Council of Europe, adopted on 25 January 19961. Although Russia has signed the Charter, it has not yet entered into force in the Russian Federation.
The present report, drafted for the Congress of Local and Regional Authorities of Europe (CLRAE), is the consequence of certain requests from Russian members of the CLRAE. In his letter of 4 November 1996, Mr Sysuev, Mayor of the city of Samara, asked the CLRAE to observe and to analyse the situation of local self-government in the Russian Federation. In the Republic of Udmurtia and in some other regions of the Russian Federation, elected local officials had been discharged by state authorities.
Furthermore, the reasons for the report are laid out in the final document of a seminar on local self-government in Russia, which took place in Moscow on 25 November 25, 1996. The seminar was attended by members of the Bureau of the CLRAE Chamber of Local Authorities, Russian delegates to the Chamber and by representatives of local authorities in the Russian Federation. In the final document, it was emphasised that the Russian Federation, to a certain degree, has been successfully developing a system of local self-government. On the other hand, the final document also shows that there are still some shortcomings.
In this context, the Council of Europe and the CLRAE expressed their interest in evaluating the situation of local self-government in Russia and their willingness to contribute to the resolution of existing problems. Therefore, a working group was set up to gather information about the current situation and to draw up recommendations for the Council of Europe and the CLRAE. This working group visited the Russian Federation from 15 March to 20 March 1997. The consultant who assisted the Rapporteur in the drafting of this report as an expert on Russian law also participated int the meetings in the Russian Federation.
The report concentrates on the current situation in the development of local self-government in the Russian Federation on the perspectives of Russia's accession to the Charter. Accordingly, the report covers the following issues:
- the state structure of the Russian Federation (II),
- Russian legislation on local self-government (III),
-the most important current problems of local self-government in the Russian Federation (IV),
-the perspectives of Russia's accession to the European Charter of Local Self-Government (V),
- conclusions and recommendations.
The report is based on relevant provisions of Russian law and on information obtained during the mission of the working group to Moscow, Kazan and Samara. In this context the most important sources of information have been:
-a statement by Mr Alexander Voronin, Deputy Minister for Nationalities and Federal Relations (Appendix I),
-a statement of the Union of the Small Towns of the Russian Federation (Appendix II),
-the decision of the Constitutional Court of the Russian Federation of 21 January 19972, concerning local self-government in the Republic of Udmurtia and additional information on this subject; and
some further material contributed to the working group by the Government of the Republic of Tatarstan and the Administration of the Samara Territory.
II. The State Structure of the Russian Federation
The state structure of the Russian Federation is based on the stipulations of the Constitution of the Russian Federation of 12 December 1993 (hereinafter referred to as: RF Constitution)3. The constitution distinguishes between three different levels of government: the Federation (as a whole), the Subjects of the Federation, which are directly subordinated to the Federation and, finally, territorial entities, forming the Subjects of the Federation.
1. The Subjects of the Federation
According to Art. 65, para. 1 of the RF Constitution, the Russian Federation is composed of 89 Subjects with different legal designations:
-21 republics,
-6 regions (in Russian: kraja),
-49 territories (in Russian: oblasti),
-2 cities of federal importance (Moscow and St. Petersburg),
-1 autonomous territory (in Russian: avtonomnaja oblast'),
-10 autonomous counties (in Russian: avtonomnye okrugy).
In reality, the Subjects of the Federation differ from each other in population, territory and economic situation4. However, there are not the criteria for the legal status of a Subject as a republic, region etc. The different status of the Subjects is the result of historic developments.
In Art. 5 para. 4, the RF Constitution stipulates that the Subjects of the Federation shall have the same rights in their relations with federal authorities. On the other hand, the Constitution itself embodies different provisions for different types of Subjects of the Federation (eg. Articles. 5, para. 2, 68 para. 2, 66 paras. 3, 4). Beyond that, the Constitution also provides for treaties between the Federation and its Subjects which can alter the stipulations concerning the division of competences between the Federation and its Subjects (cf. Articles. 11 para. 3, 78 paras. 2, 3). Meanwhile, 26 treaties on the delegation of competences have been concluded between the Federation and its Subjects5. For example, three of them, the treaties with the Republics of Tatarstan6, Bashkortostan and Jakutija (Sacha) have an immediate influence on the regulation of local self-government.
2. The Structure of the Subjects of the Federation
Generally, the Subjects of the Federation are composed of districts (in Russian: rajony). On the same administrative level we can also find larger towns subordinated directly to the Subjects of Federation (Russian: goroda oblastnogo/ respublikanskogo zna_enija). Some of the larger towns also embrace city districts as further territorial entities.
Normally, the districts, subordinated directly to the Subjects of the Federation, are split up into towns, urban or rural townships and so-called rural counties (in Russian: sel`skie okrugi). Rural counties are mergers of several very small villages.
According to official statistics of 1 January 1996 in the Russian Federation there are : 17 towns with a population of over 750 000 inhabitants; 59 towns with a population of 250 000 to 750 000 inhabitants; 268 towns with a population between 50 000 to 250 000 inhabitants and 741 small towns and villages having less than 50 000 inhabitants. At present in Russia there are 1 085 towns and villages and 152 922 villages which comprise 23 976 rural districts (volost', sel'sovety).
Due to this complicated structure of the Subjects of the Federation, Russian legislation is faced with the problem of deciding, on which territorial levels the bodies of local self-government should have be established7.
III. Russian Legislation on Local Self-Government
The process of developing a concise legal basis for local self-government in Russia has not yet been concluded. Nevertheless, the Law of the Russian Federation on the General Principles for the Organization of Local Self-Government of 28 August 1995 (hereinafter referred to as the : RF Law on Self-Government)8 is considered to be a remarkable success.
On the other hand, two circumstances are typical for the legal situation in general:
- Due to the provisions of the Russian Constitution, the competences for legislation in the field of local self-government are divided between the Federation and its Subjects. Hence, municipal entities are also entitled to adopt their own regulations.
- There are no or insufficient regulations for a number of aspects of importance to local self-government.
1. The Development of Legislation on Local Self-Government in Russia
According to a widespread opinion in Russia, the effective development of local self-government started only December 1993, when the new Russian Constitution was adopted. Although some efforts had been made to establish a system of local self-government even in the late Soviet period, for a long time the traditions of centralism9 were stronger than the idea of self-government10. Therefore, the Russian Law on Local Self-Government of 6 July 1991 was never applied.
The first step on the path to local self-government was the Russian Constitution of 1993 which also meant the start of local democracy and of the establishment of elected local authorities. On the other hand, this process has not yet come to an end. According to Mr Voronin, on 1 January 1997, elected organs existed in 64 towns of 16 Subjects of the Federation which might be explained with the fact that in these Subjects elections are fixed to take place for this summer automne 1997.
2. The current Russian Legislation on Local Self-Government in general
Bearing in mind the constitutional provision on the competence for legislation, we can distinguish between federal legislation and the legislation of the Subjects of the Federation. Furthermore, there are some matters to be regulated by the municipal entities themselves.
a) Federal Legislation
Concerning federal legislation, the most important features for local self-government are the RF Constitution and the RF Law on Self-Government.
The RF Constitution regards the principle of local self-government as one of the fundamentals of Russia`s constitutional order (Art. 12). In a special chapter of the Constitution (Articles. 130 to 133) more detailed rules concerning local self-government can be found. The most important aspects of these rules are:
- According to the Constitution, local self-government is not only an abstract principle of political organisation, but the proper right of municipal entities and of their populations. This aspect marks the most evident difference between the current situation and Soviet tradition. Nowadays the Constitution regards municipal entities as independent Subjects with their own rights vis-à-vis state authorities.
- The RF Constitution also refers to the economic basis of local self-government (municipal property and municipal taxes; cf. Art. 132).
- The right to local self-government is enforceable in court (cf. Articles. 133, 46 para. 2 of the Constitution). On the other hand, municipal entities themselves do not have the right to file an appeal to the constitutional court (cf. Art. 125 RF Constitution).
With respect to the federal system, the RF Constitution also provides that the Federation be entitled to pass legislation on "the general principles of the organisation of local self-government" (cf. Art. 72 para. 1 lit. m)). Therefore, the Federation adopts only principles. More detailed rules shall be worked out by the Subjects of the Federation in their legislative acts (cf. Art. 76 para. 2 of the constitution).
On the other hand, constitutional provisions on local self-government should not be overestimated. In its statement, the representative of the Union of Small Towns of the Russian Federation quotes several examples for the present violation of the above-mentioned constitutional rules (especially Art. 130 sqq.). Most of these violations are committed by the legislative and executive bodies of the Subjects of the Federation.
b) Legislation of the Subjects of the Federation
The RF Constitution allows the subjects of the Federation to adopt their own regulations on local self-government. According to the statement of the Union of Small Towns of the Russian Federation, up to December 1996, 68 of the 89 Subjects of the Federation had passed respective legal acts. However, this is no guarantee for the existence of a concise legal basis in each of them. In many cases, rules for local elections, local budget etc., are still lacking.
In many cases, the legislation of the Subjects of the Federation is not in conformity with the provisions of the Federation. This situation can be found in republics and other subjects of the Federation, which adopted their legislation before August 1995, when the federal law entered into force11. Art. 76 para. 5 of the federal Constitution stipulates that rules of the subjects of Federation should not be applied if they are not in conformity with federal legislation. In reality however, the Subjects of the Federation apply their own regulation without respect for constitutional provisions, in order to avoid a legal vacuum.
A further consequence of Russia's federal system is the variety of different systems of local self-government in the different Subjects of the federation.
c) Independent Legislation of the Municipal Entities
The legislation of the Federation and its Subjects are not the sole source of Russian law on local self-government. According to Art. 8 of the RF Self-Government Law, municipal entities have the right to adopt their own statutes with provisions concerning their internal organisation. As Mr Voronin pointed out, more than 1,000 municipal statutes have been registered in the Russian Federation up to now.
On the other hand, the Union of Small Towns of the Russian Federation declared that the field for independent legislation of municipal entities is not that large in practicel. This could be due to the restrictive legislation of the concerned Subject of the Federation. Furthermore, municipal entities do not have genuine capacities to work out their own rules. Nevertheless in the last years the Ministry of Nationalities and Federal Relations has drafted and distributed 4 collections of model acts concerned with the organisation of local self-government and models on legal rules of the organs of self-government.
d) The particular Situation in Tatarstan
Particular uncertainties about the legal situation of local self-government exist in the Republic of Tatarstan and in some other Subjects of the Federation which concluded special treaties with the Federation. In 1992 and 1993, Tatarstan refused to sign the federative treaty and prevented the referendum about the Russian Constitution from being held on its territory. Instead, Tatarstan is declaring itself as a sovereign state, associated with the Russian Federation (Art. 61 of the Constitution of Tatarstan). Only the treaty between Tatarstan and the Russian Federation of 15 February 199412 could resolve a severe political conflict. On the other hand, the provisions of this treaty are often very vague in their legal meaning.
3. Judicial Enforcement of Local Self-Government
According to Art. 130 para. 1 of the RF Constitution, local self-government is understood as the proper right of municipal entities and their population13. This right is enforceable in court, but municipal entities can only refer to Art. 130 sqq. of the RF Constitution. The population of the municipalities can also enforce its rights mentioned in Art. 32 para. 2 of the RF Constitution.
In Russia there is no special branch of the judiciary for administrative claims. As a rule, these cases are decided by the courts of general jurisdiction according to Art. 231 sqq. of the Code of Civil Procedure14. Only cases relating to economic law are decided by so-called economic or arbitration courts (cf. Art. 22 of the Code of Arbitration Procedure15).
The constitutional principle of local self-government is also enforceable in the Constitutional Court of the Russian Federation. Even so, municipal entities themselves are not entitled to make an appeal to the Constitutional Court. Appeals to the Constitutional Court can only be filed by state organs mentioned in Art. 125 para. 2 of the RF Constitution16.
In the past, the Constitutional Court adopted several decisions with reference to the principle of local self-government. But the enforcement of these decisions can pose a problem. As an example, on 10 March 1997, the Russian President Mr Yeltsin had to adopt a special decree17 in order to enforce the Constitutional Court`s decision on local self-government in the Republic of Udmurtia.
IV. The current Problems of Local Self-Government in Russia
The following topics can be regarded as current problems of local self-government:
- the definition of the Subjects of local self-government,
- the internal organisation of the municipal entities,
- the competences of the municipal entities,
- the economic basis of local self-government.
1. The Definition of the Subjects of Local Self-Government
The above-mentioned state structure of the Russian Federation (II) faces the following problem: on which territorial levels are the Subjects of local self-government to be established. This problem concerns the relationship between state administration and self-government in general.
a) The Structure of State Administration
According to Art. 11 para. 1, 2 of the RF Constitution the organs of the Federation and of the Subjects of the Federation are responsible for state administration. The organisation of state administration is part of the constitutional order. On the level of the Subjects of the Federation, provisions concerning this question can be found in the constitutions or statutes of the Subjects of the Federation (cf. Art. 66 para. 1, 2; 77 para. 2 RF Constitution). The constitutions or statutes of the Subjects have to be in conformity with the RF Constitution (cf. Art. 77 para. 1).
Furthermore, the RF Constitution provides (in its Art. 72 para. 1 lit. m) that the Federation is entitled to adopt a Law on the Fundamtentals of State Organisation in the Subjects of the Federation. This law has not been adopted up to now. So, the Subjects of Federation are free to design the structures of state administration. According to the statement of the Union of Small Towns of the Russian Federation, the legislation of some Subjects of the Federation provides that state administration and local self-government form a "uniform system of administration".
b) State Administration vs. Local Self-Government
Some of the Subjects of the Federation established special branches of state administration on the level of the districts (rajony) and the larger towns, which are directly subordinated to the Subject. We can therefore assume that there is a struggle for competences between state administration and local self-government. Especially, this situation can be found in those Subjects of the Federation which provide state administration only on the level of districts and larger towns.
Amongst others, the legislation of the Republic of Tatarstan can be mentioned as an example: its Constitution enlists the following central organs of state power: the State Council (Art. 89 sqq.), the President (Art. 106 sqq.) and the cabinet of ministers (Art. 116 sqq.). Furthermore, a system of local state administration shall be established according to the Constitution of Tatarstan. This system is also based on the Tatar Law on the Local Organs of State Administration of 30 november 1994, providing a uniform system of state administration. As a result, there are only bodies of state administration on the level of the districts and larger towns. These bodies consist of an elected council and a head of administration appointed by the government. Authorities of local self-government can be found only on the level of townships or residential areas within towns18. According to the statement of the Union of Small Towns of the Russian Federation, provisions of this kind can be regarded as an important obstacle to the development of local self-government and local democracy.
The Russian federal state structures and the distribution of competences between the Federation and its Subjects have led to a variety of forms of local self-government throughout the country. Therefore, the structures established in the Territory of Samara should also be quoted as an example. The Samara legislation provides only authorities of self-government on each administrative level, even on the level of the districts and towns. This results from the provisions of the Law of the Territory of Samara of 21 December 199519. On the other hand, there are no bodies of self-government on the level of residential areas.
c) Conclusions
The establishment of self-government authorities at the level of all towns and at the level of the districts is decisive for the fate of local self-government in Russia as a whole. Local self-government as an institution requires sufficient ressources to be successful. According to the results of the German scientist Kirk Mildner20 about self-government in Russia, these resources can be found only on the level of the districts and larger towns.
If a Subject of the Federation decides to establish authorities of self-government only on a lower level, this will shift a lot of power to the state administration.
On the other hand, the question is also raised, as to whether the RF Constitution entitles the Subjects of the Federation to establish local self-government structures only at the lowest level. This question was answered by the Constitutional Court of the Russian Federation in its above mentioned decision of 27 January 1997 concerning the legislation of the Republic of Udmurtia21. The court decided that restrictive provisions of the Subjects are in conformity with the stipulations of the RF Constitution.
The decision of the court is based on the fact that in Russia there is no federal law concerning state administration by the Subjects of the Federation. Consequently, the Subjects are supposed to be obliged only by the fundamentals of the constitutional order (Articles. 1 to 16 of the RF Constitution) when defining the structures of administration on their territory. On the other hand, the constitutional court decided that the RF Constitution does not contain a precise stipulation as to the establishment of local self-government authorities at the level of towns and districts (cf. Art. 131 of the RF Constitution). In this context, however, the Constitutional Court did not quote the RF Law on Self-Government, stipulating that towns and districts form the territorial basis for self-government.
As a result, the Constitutional Court declared that the Subjects of the Federation are free to establish structures of self-government at the lowest level. On the other hand, the decision, analysed by Professor Lesage in his report to the CLRAE, shows that this legal situation may be altered if the Federation adopts the Law on the Fundamentals of State Administration in the Subjects of the Federation. This federal law could stipulate that state administration must not be established on the level of the districts and towns22.
2. The Internal Organisation of the Municipal Entities
Rules concerning the internal organisation of the municipal entities can be found in the RF Law on Local Self-Government, in legislative acts of the Subjects of the Federation (cf. Art. 5 item 14 of the federal law) and also in the statutes of the municipal entities. In its articles 16 to 21 the RF law embraces only general principles of organization. Although the law requires that municipal statutes shall be registered by state agencies, there are very diffent types of organisation in Russia.
Just as an example, the internal constitution of the City of Samara should be mentioned: it is based on the citie's statute of 30 April 1996, as amended on 13 June 199623. According to the statute the main organs of the Town are the Head of the Town (Mayor) and the directly-elected City Duma. The Head of the Town (mayor) shall be elected by the citizens of Samara. The duma is composed of 18 deputies, who are full-time professionals and elected by majority vote by their election districts. The mayor is the chairman of the duma, which (according to Art. 7.14 of the statute) should decide on all issues of major importance. On the other hand, the mayor represents the town and supervises the local administration (Art. 8.5 of the statute). The administration itself is responsible for managing current affairs. Its head is appointed by the mayor with the consent of the duma (Art. 9.3.2. of the statute). Furthermore, the statute provides separate administrations for the city districts (Art. 9.5. of the statute).
In the Russian Federation forms of direct democracy are highly appreciated (cf. Art. 130 para. 2 of the RF Constitution). Therefore, local referenda and, in smaller municipalities, citizens' assemblies (Art. 22, 24 of the RF Law on Self-Government) are designed for decisions on local affairs. Details of the procedure of a local referendum or a citizens' assembly shall be stipulated by municipal statute. The statute of the City of Samara also recognises the feature of "social self-government of local affairs" (Art. 33). However, there is no experience of this issue in practice.
According to Mr Skobeev, chairman of the Samara City Duma, the population of the town shows only minor interest in local affairs. Therefore, the interest in local elections is also low. However, this situation does not seem to be typical for Russia as a whole. As Mr Voronin pointed out, participation in local elections considerably excedes participation at the Federal level.
3. The Competences of the Municipal Entities and State Supervision
Inspired by Art. 130 para. 1 of the RF Constitution the RF Law on Self-Government defines local self-government as the "independent and responsible activity of the population for the decision of issues of local importance" (Art. 1, 2 para. 1). In addition, Art. 6 of the federal law enlists thirty issues of local affairs, i.a.:
-the complex social and economic development of the municipality (no.4),
-the administration of the local housing fund (no.5),
-planning and construction (no. 9),
-administration of local archives (no. 19).
Furthermore, the federal law stipulates that municipal entities may be vested with the functions of state administration. In this case, they have the right to receive appropriate compensation (Art. 132 para. 2 of the RF Constitution, 6 para. 4 of the RF Law on Self-Government).
As a rule, municipalities fulfil their functions independently. Only if they exercise functions of the state administration vested in them, state entities control the efficiency of municipal actions (Art. 6 para. 4 of the RF Law on Self-Government).
In general, state organs are only entitled to supervise the legality of the activities of municipal entities. The procurer's office of the Russian Federation is responsible for the supervision of municipal activities (Art. 51 of theRF Law on Self-Government)24. On the other hand, the legislature of the Subjects of the Federation can be regarded as a disciplinary authority which supervises elected local officials (Art. 49 para. 3 of the RF Law on Self-Government). However, the dismissal of these officials demands that a disciplinary offence be ascertained by a court.
Exercising the supervision of legality, the office of the procuration is entitled to object to actions of the municipalities by protest (cf. Art. 21, 24 of the RF Law on the Procuracy). In this case, municipal bodies must consider the procuracy's opinion. If they refuse to alter their own decisions, the procuracy may file an appeal against this decision in the court (Art. 23 of the RF Law on the Procuracy).
According to Mr Skobeev, a representative of the procurer's office attends each session of the Duma of Samara City. If the procurer objects to the decisions of the Duma, it usually changes its decisions in about 50 % of cases. The procuracy has always refrainded from filing an appeal in other cases, as it obviously has no confidence in the jurisdiction.
4. The Economic Foundation of Local Self-Government
The Russian Constitution (cf. Art. 132 para. 1) expressively protects the economic foundation of local self-government (local taxes and municipal property), although the economic guarantees for local self-government are the most urgent problems in Russia today25. This is due to several reasons:
-There is a lack of legal regulation or of appropriate legal regulations. Long-term planning is therefore impossible.
-The Russian economy is still in a process of decentralisation and regionalisation. As there are no stipulations on financial compensation in the Russian Constitution, this matter is subject for political dispute.
- The Russian economy is still in a process of transformation and crisis.
As a result, municipal entities totally depend on state subsidies. According to the Union of Small Towns of the Russian Federation and other Russian colleagues, municipal entities' lack of funds is the most severe problem for the development of local self-government. This means that a number of legislative acts are required within the next year. The most important issues in this context are the new Land Code and the planned Taxation Code:
In the reform process started some years ago, public enterprises and property have been distributed between the Russian Federation, its Subjects and municipal entities. According to Art. 39 of the RF Law on Self-Government, municipalities are entitled to use their property independently. However, the legal norms in this respect (property) should be provided by Land legislation, which so far is either non-existent or not in conformity with the Constitution. Some of the existing regulations are not in conformity with the federal Constitution (cf. Art. 36 para. 3). Furthermore, the Land Act, as provided for by Article 13 of the Introductory Code to the Civil Code, has not yet been promulgated26.
Existing economic problems also created severe problems for the law on budget and taxation. In fact, there is no longer any concise regulation in this field. Therefore, the Russian government intends to adopt a Tax Code in 1997. This Code needs to be approved by the Council of the Federation (cf. Art. 106 lit. b) of the RF Constitution). As the Council of the Federation is composed of representatives of the Subjects of the Federation, it may be possible that they use their influences further their own interests and neglect the interests of the municipal entities.
V. Perspectives of Russia's accession to the European Charter of Local Self-Government
The European Charter of Local Self-Government (hereinafter referred to as: Charter) was signed by the Russian Federation. Not being ratified to date (cf. Art. 15 para. 1 of the Charter), it has not entered into force in Russia. As the Council of Europe and its Institutions enjoy high estimation in Russia, it may be assumed that the Russian government will currently make efforts for its ratification. This leads to the question about the consequences of the ratification on the Russian legal system and on local self-government in the Russian Federation. (cf. point 2 below).
1. The Implications of the Ratification of the Charter of Local Self-Government by the Russian Federation
International treaties of the Russian Federation are ratified by the President of the Federation (Art. 86 lit. c) of the RF Constitution, Articles. 18, 19 of the RF Law on International Treaties27). According to Art. 15 para. 2 of the RF Law on International Treaties, ratification of an international treaty implies the adoption of a special law by the State Suma and by the Council of the Federation (Art. 106, 106 lit. d) of the RF Constitution).
The federal structure of Russia does not lead to any obstacles to the ratification of the Charter. According to Art. 71 lit. j) of the federal Constitution, foreign policy and the conclusion of international treaties is a matter of competence of the Federation. Therefore, the decision on the ratification will be made by the institutions of the Federation, although the legislation on local self-government is a matter for the joint legislation of the Federation and its Subjects (cf. Art. 72 para. 1 lit. m) of the RF Constitution; cf. also Art. 3 para 1 of the RF Law on International Treaties)28.
After the ratification of the Charter, its provisions will be an element of the Russian legal system (cf. Art. 15 para. 4 of the RF Constitution), although the Subjects of the Federation are entitled to adopt their own legislation on local self-government (cf. Art. 72 para. 1 lit. m) of the RF Constitution). According to Art. 32 para. 3 of the RF Law on International Treaties, the Subjects of the Federation will be obliged to bring their legal system into conformity with the Charter.
2. The Charter as an Element of the Russian Legal System
If the Charter is ratified by the Russian Federation, there may be some uncertainties about its effect on the Russian legal system.
a) The Scope of Application of the Charter
According to Art. 13 of the Charter, its scope of application embodies all territorial authorities of the member states which can be defined more precisely by the instrument of ratification of the member states. This shows that the scope of application shall embody the various types of local self-government authorities in the countries bound by the Charter.
With respect to the structure of the Russian Federation, we can assume that the Subjects of the Federation (cf. Art. 65 of the RF Constitution) cannot be regarded as local authorities according to Art. 13 of the Charter. They are directly subordinated to the Federation and there is also a relationship of superiority between them and the municipal entities. Thus, it is possible that in the future the (draft) European Charter of Regional Self-Government29 may apply to the Subjects of the Federation.
This situation equally applies to the City of Moscow and the City of St. Petersburg, which are towns as well as Subjects of the Federation (cf. Art. 65 para.1 of the RF Constitution). Consequently, they cannot refer to the rights pointed out in Art. 130 sqq. of the federal Constitution. This was clarified by the Russian parliament, amending the RF Law on Self-Government on 17 March 199730. This amendment eventually enabled the Cities of Moscow and of St. Petersburg to refrain from establishing bodies of local self-administration organs in their city districts. Assuming that the amendment will be implemented, the same situation will occur in Moscow and St. Petersburg as in the free City of Hamburg. Hamburg is one of the German Länder and its territory is composed of town districts which are not entities with the right of self-government31.
On the other hand, the question is raised as to whether the Russian rural districts (rajony) and the towns without districts which are directly subordinated to a federation Subject may enjoy the rights provided for by the Charter. In order to answer this question, we have to distinguish between the two types of municipalities.
For the towns without districts, the answer must be positive because they are continuous settlements that have the character of a municipal unit even without taking into consideration legal aspects. However, the Russian Federation will have the possibility to take a unilateral decision, when depositing its instrument of ratification, on the question of whether districts are to be covered by the scope of application of the Charter or not. This decision does not depend on Article 12 paragraph 1 of the Law on Self-Government of the Russian Federation, which indicates that districts may have the right to local self-government.
Given the current situation in Russia (availability of staff and finance, etc), districts are in a far better position than municipalities, which are part of the district, in view of making use of the right to self-governement and to counter-balance in this way State administrations. The Council of Europe and the CLRAE should therefore use their political weight in view of the recognition of the districts (Ioni) as units of self-government, in the spirit of Article 13 of the Charter when the Russian Federation ratifies the Charter.
b) The Enforcement of the Provisions of the Charter
According to Art. 15 para. 4 of the RF Constitution, ratified international treaties are part of the Russian legal system and have priority over other acts adopted in the Russian Federation. Russian laws and other legislation adopted in the Russian Federation have to be in conformity with the provisions of these treaties. This rule equally applies to the legislative acts adopted by the Subjects of the Federation.
According to the Russian Constitution, in the case of conflict between them (cf. Art. 15 para. 4), the provisions of an international treaty shall apply. However, neither the Constitution nor the RF Law on the Constitutional Court provide a special control procedure for verifying the compatibility of the legislative acts of the Russian Federation or those of its Subjects with the international treaties ratified by the Russian Federation (cf. Art. 125 para. 2 of the RF Consitution). Only the courts can decide on this matter, in each specific case.
Art. 15 para. 4 of the RF Constitution enables to the Russian Federation, when depositing its instrument of ratification (cf Art. 12 of the Charter), to make the provisions of the Charter directly applicable. However, Art. 15 para. 4 of the RF Constitution also implies that the provisions of an international treaty directly create rights and duties. If the provisions of an international treaty need to be transformed into national legislation, they can only overrule national legislation in contradiction to them. This is the case with respect to the majority of the provisions of the European Charter (cf. Art. 6 paras. 2, 7, 8 of the Charter). So the Charter itself, at best, will lead to legislative acts adopted in the Russian Federation being made void. In these cases respective legislative bodies should complete the existing gap possibly by taking measures to remedy this situation (cf. Art. 5 para. 3 of the RF Law on International Treaties)32.
VI. Conclusions and Recommendations
The state of local self-government in the Russian Federation, as described above, leads to the following conclusions and recommendations.
1. Conclusions
With respect to the rules and institutions currently existing in the Russian Federation, it should be stated that these do not yet comply with the standards set out by the European Charter of Local Self-Government in all Subjects of the Federation. Notwithstanding these shortcomings, it should be recognised that, since 1993, significant improvements have been made .
a) Successful Developments of Local Self-Government in Russia
The points enumerated below may be considered as substantive progress in the development of local self-government in Russia:
(1) The Constitution of the Russian Federation of 12 December 1993 provides substantial guarantees for local self-government (cf. Art. 12, 130 to 133). These constitutional guarantees are in conformity with the principles set out by the Charter.
(2) The RF Law on General Principles of Local Self-Government, promulgated in September 95, being the most improtant legal foundation for local self-government, is in conformity with the principles set out in the Charter, which is a significant development.
(3) The provisions of the RF Constitution in general are enforceable in the Constitutional Court of the Russian Federation, which have been clearly interpreted by some judgements of this court.
(4) In some Subjects of the Russian Federation, rules on local self-government have been brought into effect successfully. This should also be regarded as an important contribution to the development of democracy in Russia.
(5) The municipal organs of the Russian Federation set up the Union of Cities of the Russian Federation and the Union of Small Towns of the Russian Federation. These associations, as well as some others, have played an active role in recent years; their efforts should be encouraged.
b) Shortcomings in the Development of Local Self-Government in Russia
The significant developments mentioned above have been achieved within a fairly short time. Nevertheless, there still exist some shortcomings:
(1) More than twelve months after Russia's accession to the Council of Europe, the Charter of Local Self-Government has not been ratified and the legislation of the Russian Federation and that of the Subjects of the Federation concerning local self-government have not been completed.
To quote only some examples, the Russian Federation still has to adopt the following laws:
-the Taxation Code of the Russian Federation, which will define the right of the municipal entities to impose taxes,
- the Federal Law on the Financial Basis of Local Self-Government,
- the Federal Law on the Fundamentals of the Civil Service in Municipal Entities.
Furthermore, in some of the Subjects of the Federation, required legislation for implementing the federal law on local self-government, as well as the Charter, either does not exist or is inefficient.
(2) In some of the Subjects of the Federation, there have been severe cases of constitutional infringements and of the RF Law on Self-Government. Moreover, not all of the decisions of the Constitutional Court of the Russian Federaion have been respected throughout the Russian Federation.
Moreover, the legislation of the Subjects of the Federation is not always in conformity with the federal legislation.
(3) The most important problem of local government in Russia concerns the definition of local self-government given to the Subjects. In some of the Subjects of the Federation, authorities of self-government are established only on the lowest level, ie. on the level of smaller towns, townships, city districts etc. The legislation of some of the Subjects also stipulates that on the higher level (rural districts, ie. rajony and cities directly subordinated to the Subject), state organs of local government shall be established instead of bodies of self-government. Provisions of this kind do not encourage the development of local self-government, but are likely to hinger it.
(4) At present, municipal entities do not dispose of the necessary financial funds, although the RF Constitution expressly guarantees the economic or financial basis of local self-government. Thus, the municipalities often depend on subsidies provided by the State authorities.
(5) Only a few of the authorities of local self-government possess the required resources. Moreover, there is also a lack of well-trained municipal staff as the necessary training facilities are neither efficient nor co-ordinated. Thus, municipalities are not always able to use their competences for the adoption of their own statutes and rules. Advice and help from state organs (eg. model statutes) are not always available when needed.
(6) Finally, the Russian judiciary faces severe obtacles, which hinder the effective enforcement of local self-government. Moreover, municipalities are not entitled to file an appeal to the Constitutional Court.
2. Recommendations
The Russian Federation and its Subjects still have to make substantial efforts in order to comply with the principles of the Charter. With a view to encouraging this development, assistance from the Council of Europe and the CLRAE will be necessary.
a) Recommendations to the Authorities of the Russian Federation
With respect to the constitutional provisions of the Russian Federation concerning competences, federal organs and institutions in Russia should take the following measures:
(1) The Russian Federation should ratifiy the European Charter of Local Self-Government as soon as possible. The instrument of ratification should specify the scope of application of the Charter as extensively as possible to ensure that it is applied not only to towns and townships, but also to rural districts (rajony).
(2) The Russian Federation should support the drafting of the European Charter of Regional Self-Government and consider Russia's accession hereto, as this should also contribute to the improvement of local self-government. The Charter should defend not only the interest of the regions, ie. of the Subjects of the Federation, but also the interests of municipal entities. In this context, reference should be made to Art. 7 of the draft Charter, which states that the Subjects of the Federation will undertake to respect the principle of subsidiarity in their relations with municipal entities.
(3) The Russian Federation should adopt lacking legislation concerning all aspects of local self-government, taking into account the opinion of the municipal entities and their associations in the legislative process, particularly the finalisation of a Tax Code, the Federal Law on Financial Resources of Local Self-Government, the Law on the Fundamentals of State Organisation in the Subjects of the Federation providing that, in accordance with the principles of the Charter, administration at the level of towns and rural districts (Rajony) should be exercised only by entities of self-government and not by the State administration authorities.
Furthermore, the Russian Federation should consider an amendment to the RF Constitutional Law on the Constitutional Court so that municipal entities themselves are entitled to file an appeal to the Constitutional Court, to guarantee that the judgments of the Constitutional Court are respected throughout the Russian Federation.
(4) The Russian government should continue in its efforts to guarantee the conformity of legislation of the Subjects of the Federation with the federal law. It would be useful to draft model laws on the Subjects of the Federation, taking into account different aspects and structural varieties of self -government within the Federation, with which the Council of Europe could assist upon request.
c) Recommendations to the Subjects of the Federation
Considering that the Russian Constitution grants certain competences to the Subjects of the Federation, it is to be recommended that they take the following measures:
(1) The Subjects of the Federation should continue to draw up the legal basis for the institutions of local self-government. Therefore, they should adopt all necessary laws and/or amend their legislation in force, whenever necessesary, in order to guarantee conformity with Federal legislation, as well as the principles of the European Charter of Local Self-Government.
(2) They should establish bodies of self-government in conformity with the Federal law, including the towns and the rural districts (rajony).
(3) They should also provide local authorities with the financial and technical resources required for the effective implementation of their responsibilities. These resources do not only include financial funds, but also well-trained municipal staff.
(4) They should ensure that sufficient and well co-ordinated training facilities are provided for local government staff.
(5) They should ensure that the population is provided with adequate information on local matters, as required by local democracy. Thus, the Subjects of the Federation should encourage the mass media under their control to broadcast information on local matters.
(6) Furthermore, the Subjects of the Federation should use their influence in the Council of the Federation to encourage the successful development of local self-government.
c) Recommendations to the Council of Europe and to the CLRAE
Bearing in mind that the successful development of local self-government in Russia requires significant efforts, the Council of Europe and the CLRAE are asked to offer its support to Russian institutions. Therefore, the Council of Europe and the CLRAE should take the following measures:
(1) The CLRAE will encourage the Russian Federation to ratify the Charter as soon as possible. The CLRAE will inform the Russian Government of the importance of the Charter as an instrument which is not only applicable to towns at all levels, but also to the rural districts (Rajony).
(2) Consequently, the CLRAE should systematically gather information about the development of local self-government in Russia and its legal basis and offer its expertise to the Russian Institutions.
To achieve these goals, the CLRAE should focus on the joint European Union/Council of Europe Programme for Russia (RUS-2), in particular by recommending the Committee of Ministers to take the following measures:
-set up a pool of experts providing systematic information for preparing statements on draft laws in relation to the principles laid down by the Charter and providing advice for institutions of the Russian Federation, its Subjects, municipal entities and their associations;
-ensure that centres distributed in different geographical areas in Russia are responsible for the exchange of and dissemination on legislation concerning local self-government and activities of the constitutional and administrative supervisory mechanisms;
-support the training of staff (ie elected officials of the municipal entities, staff of the entities, officials of the Federation and its Subjects responsible for local self-government), providing assistance to the Russian authorities with a view to defining a strategy for municipal and regional staff and elected representatives, implying the creation of regional training centres with the support of ENTO (European Network of Training Organisations for Local and Regional Authorities);
-establish a permanent unit in Russia, providing information and advice on local and regional government during the reform period, taking into account the wide range of different local self-government structures existing in the Russian Federation.
1 cf. Resolution 193 (1996) of the Parlamentary Assembly of the Council of Europe, adopted on 25 January 1996.