11 October 2010
Local and regional democracy in the Russian Federation
Rapporteurs: Knud ANDERSEN, Denmark (R, ILDG1), Christopher NEWBURY, United Kingdom (L, EPP/CD)
A. Draft recommendation…………………………………………………………………………………..…..2
B. Explanatory memorandum……………………………………………………………………..……….…..4
This follow-up report looks at the situation of local and regional democracy in the Russian Federation in the light of the European Charter of Local Self-Government, Congress Recommendation 143 (2004) and Resolution 171 (2004). It also takes account of the Reference Framework for Regional Democracy.
The report highlights that the Russian Government has made important efforts to align itself with the Charter and that these efforts should be continued as part of the current reforms. The recommendation invites the Russian authorities inter alia to improve national legislation on local self-government, especially where the dismissal of mayors is concerned, to revise the electoral system, to take the necessary measures to reduce corruption and to ensure that freedom of expression and political debate are fostered at local and regional level. The Congress likewise reiterates its recommendation that the Russian authorities reintroduce direct elections for regional governors.
A. DRAFT RECOMMENDATION2
1. The Congress of Local and Regional Authorities, having regard to:
a. article 2 para. 1b, of Statutory Resolution CM/Res(2007)6, which provides that one of the functions of the Congress is “to submit proposals to the Committee of Ministers in order to promote local and regional democracy”;
b. article 2, paragraph 3 of Statutory Resolution CM/Res(2007)6, which provides that “The Congress shall prepare on a regular basis country-by-country reports on the situation of local and regional democracy in all member states and in states which have applied to join the Council of Europe, and shall ensure, in particular, that the principles of the European Charter of Local Self-Government are implemented”;
c. Congress Resolution 299 (2010), which states that the Congress will use the Council of Europe Reference Framework for Regional Democracy in its monitoring activities;
d. Recommendation 143 (2004) and Resolution 171 (2004) on local and regional democracy in the Russian Federation;
e. the explanatory memorandum (…) on the situation of local and regional democracy in the Russian Federation, presented by Mr Christopher Newbury and Mr Knud Andersen.
2. Noting that:
a. the Russian Federation became a member of the Council of Europe on 28 February 1996 and on 5 May 1998 ratified the European Charter of Local Self-Government (CETS No. 122, hereafter the Charter), which came into force for Russia on 1 September 1998;
b. the Institutional Committee of the Congress appointed Mr Christopher Newbury (United Kingdom, L, EPP/CD) and Mr Knud Andersen (Denmark, R, ILDG),as rapporteurs to prepare and submit a report on local and regional democracy in the Russian Federation;
c. Mr Newbury and Mr Andersen made two official visits to the Russian Federation on 16 and 17 December 2009 and on 14 and 15 April 2010, accompanied by Mr Ruşen Keleş (Turkey), Consultant, Member of the Group of Independent Experts;
3. Thanks the governmental authorities, the Russian Congress delegation and its Secretariat, the Council of the Federation, the National Congress of Municipalities, elected representatives of municipalities of the Russian Federation, the Club of European Experts and the academics and representatives of the non-governmental organisations in the country for the information provided and comments made during and after their meetings with the delegation.
4. Acknowledges the progress made by the Russian Government with regard to legislative reforms until 2003 and recognises the advances made, in cooperation with the associations of local authorities, in implementing the new legislation on local self-government and the new structures that derive from it, in modernising local and regional government in the Russian Federation and in training local administrators and local elected representatives to exercise their new functions.
5. The Congress recommends that the Committee of Ministers invite the Russian authorities to:
a. clarify the Federal Law on local self-government by producing a consolidated version of Law 131-FZ, covering all the amendments currently in force;
b. amend Law 131-FZ so that the establishment of municipal and regional associations ceases to be mandatory, but is at the discretion of freely elected local and regional assemblies;
c. revoke the recent amendments to Article 74 of Law 131-FZ concerning the dismissal of mayors, to ensure that mayors are free to carry out their elected mandates without interference or political pressure from municipal councils or governors;
d. prepare a legal framework to regulate the creation and operation of agglomerations of municipalities, in accordance with the principles of the Charter;
e. improve legal safeguards to ensure that local authorities are not subject to excessive levels of supervision by higher authorities;
f. consult the Congress and the Venice Commission before finalising any legislation authorising regional parliaments to pass laws which might be in contradiction with the European Charter on Local Self-Government;
g. reintroduce direct elections for regional governors in order to restore the level of regional democracy that the Russian Federation enjoyed prior to 2004;
h. facilitate the registration of new political parties at local and regional level, enabling groups of local or regional candidates to stand for election without the need for their parties to demonstrate an impractically large number of members;
i. take measures to prevent the use of closed lists in local and regional elections;
j. take measures to ensure that independent candidates may stand in all local and regional elections;
k. allow national NGOs freely to observe local and regional elections, including the vote count;
l. continue implementing the measures proposed in Recommendation 1897 (2010) of the Parliamentary Assembly on respect for media freedom, to ensure that journalists can work in safety and that freedom of expression and healthy political debate is fostered at local and regional level;
m. continue to further improve the division of competences between federal, regional and local authorities and take measures to reduce the number and scope of shared competences;
n. provide local authorities with appropriate financial resources or authorise them to raise revenue, as required by the Charter, to enable them to carry out their responsibilities in providing public services;
o. ensure that rural settlements receive financial resources commensurate with their responsibilities to avoid them transferring their competences to higher-level authorities;
p. improve equalisation arrangements for local authorities and rural settlements to ensure a more equitable distribution of revenues;
q. continue and accelerate the transfer of State property to local authorities, and enable them to raise revenue through relevant property taxes;
r. ensure that local authorities are consulted on all issues that concern them, by all means available, according to Article 4 (6) of the Charter;
s. ensure that settlements are only merged after full consultation with the elected assemblies concerned;
t. implement fully existing and new measures to eradicate corruption at local level, such as forms of compulsory competitive tendering;
u. take steps to sign and ratify the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No.207) in order to extend participation of citizens in local governance;
v. expand and strengthen programs and organisations for training local and regional officials and elected representatives in order to improve efficiency in the provision of public services at those levels.
B. EXPLANATORY MEMORANDUM
1. Under Article 2.3 of Statutory Resolution (2007)6 of the Committee of Ministers of the Council of Europe, the Congress of Local and Regional Authorities (hereafter referred to as the Congress) prepares regular reports on the situation of local and/or regional democracy in all member States of the Council of Europe.
2. The primary reference text for this exercise is the European Charter of Local Self-Government (hereafter referred to as the Charter). For those States with regional structures, Congress Resolution 299 (2010) states that the Council of Europe Reference Framework for Regional Democracy (hereafter referred to as the Reference Framework) is also to be used as a reference. The report does not cover the North Caucasus region, where, according to the Parliamentary Assembly, armed conflict is continuing.3 The rapporteurs consider that, given the special conditions prevailing in this region, this should be the object of a separate report.
3. For the current monitoring exercise, Christopher Newbury, United Kingdom (L, EPP/CD) and Knud Andersen, Denmark (R, ILDG) were appointed local and regional democracy rapporteurs respectively. They were assisted in their work by Professor Ruşen Keleş, member of the Group of Independent Experts on the European Charter of Local Self-Government, and by Tim Lisney and Anna Stahl from the Congress Secretariat.
4. The Delegation paid two visits to the Russian Federation, on 16-17 December 2009 and 14-15 April 2010. During both visits, they met with the representatives of the Federal government, members of the relevant committees of both chambers of the parliament, local authorities, NGOs and the members of the Russian Delegation to the Congress. The delegation visited Moscow, Chelyabinsk and Miasskoye, a rural settlement near Chelyabinsk. They also met with the Union of Small Cities and Towns, the European Club of Municipal Experts, the EU Delegation in Moscow, leading figures of the Press, the Moscow Helsinki Group and members of the opposition.
5. The Russian Federation ratified the European Charter of Local Self-Government on 5 May 1998. It has not yet signed the Additional Protocol to the European Charter on the right to participate in the affairs of a local authority. The previous monitoring of the Russian Federation, conducted in 2004, resulted in Recommendation 143 and Resolution 171. The Recommendation focused on financial resources, municipal property, the delegation of State powers, the control and supervision of local authorities, their legal protection, the participation of foreigners in public life, federal supervision of regional governance, the concept of regional sovereignty and power sharing between various levels of government.
6. Two complaints have recently been referred to the Congress Institutional Committee (October 2009). One of these, from the members of the Tula City Council, alleged violation of the right of local authorities to be consulted on issues that concern local governance (Article 4 (6) of the Charter). The second complaint covered amendments to the Federal law on the General Principles Governing the Organisation of Local Self-Government in the Russian Federation (131-FZ), concerning the dismissal of mayors by municipal councils on the initiative of the regional governors.
1. Legal framework
1.1 Constitutional provisions
7. Most of the legal principles governing local and regional democracy in Russia can be found in the Constitution. Article 3 of the Constitution stipulates that the people exercise their power directly and also through organs of State power and local authorities. According to Article 12, "Local self-government shall be recognised and guaranteed in the Russian Federation. Local self-government shall operate independently within the bounds of its authority. The bodies of local self-government shall not be part of the state power bodies." Article 72 (m), on the other hand, lays down rules concerning the establishment of common principles of organisation of state authorities and local self-government bodies and refers to the principle of “shared competences” between the Federation and its subjects, in other words, the local and regional entities. According to this principle, regions may adopt their own legislation on local self-government provided that it is compatible with federal legislation.
8. Articles 130-133, set out, in accordance with the European Charter, certain rights and prerogatives of local authorities, concerning:
- the exercise of local government and the ownership, the use of municipal property (Art.130);
- the determination of local government structures and border (Art.131);
- competences and transfer of powers (Art.132);
- judicial protection and the right to compensation (Art.133).
1.2 Laws on local government
9. The main laws on local government are the “Federal Law on the General Principles of Local Self-Government in the Russian Federation” (Law 131-FZ, 6 October 2003), and the “Federal Law on the General Principles Applying to Legislative and Executive Bodies of the Constituent Entities of the Russian Federation” (Law 184-FZ, 6 October 1999). There have already been a large number of amendments to Law 131-FZ. The frequent changes in legislation make the rules governing local government exceedingly complex. Even the lawyers specialised in municipal affairs have difficulty to keep up with the changes. There is a clear need to publish a consolidated text of Law 131-FZ.
10. In addition to these framework laws, several other laws have been put into force between 2000 and 2009, which contain certain fundamental provisions regarding local self-government, namely:
- Federal Law on the Guarantees of the Access to the Information about the State Authority Bodies’ and Local Self-Government Bodies’ Activities, (Law 8-FZ, 9 February 2009, entered into force in 1 January 2010);
- Federal Law on Municipal Public Service in the Russian Federation (Law 25-FZ, 2 March 2007);
- Federal Law on the Basic Guarantees of the Russian Federation Citizens’ Electoral Rights and Right to Vote in Referendums” (Law 67-FZ, 12 June 2002);
- Federal Law on the State Registration of the Municipalities’ Statutes (Law 97-FZ, 21 July 1995);
- Federal Constitutional Law on the Referendums in the Russian Federation, (Law 5-FKZ, 28 June 2004);
- Federal Law on the State and Municipal Unitary Enterprises, (Law 161-FZ, 14 November 2002).
Finally, many local government powers are governed by the following legislation: The Civil Code of the Russian Federation (1994); The Land Code (2001), and the Town Planning Code (2004). The basic legislation regulating financial matters of local government includes the Budget Code (1998) and the Tax Code (1999). To complete the picture, mention should be made of: the Law on the Organisation of Local Self-Government in Moscow, the City with Federal Status (Law No: 56, November 2002), and the Law on the Organisation of Local Self-Government in St. Petersburg, the City with Federal Status (Law No: 420-79, 23 September 2009).
1.3 Territorial divisions
11. The Russian Federation is composed of 21 republics, 9 territories (kraya), 46 regions (oblasti), 2 cities with federal status (Moscow and St. Petersburg), 1 autonomous region, and 4 autonomous districts (okrugi). According to the municipal reform carried out under Federal Law 131-FZ, the number of municipalities in Russia doubled from 12,000 to 24,134. The distribution of municipalities to different territorial entities on the basis of their legal status is as follows: 516 urban districts (okrugs), 1,801 municipal districts, 1,732 urban settlements, 19,849 rural settlements, and 236 intra-city municipal districts (territories) of cities with federal status (Moscow and St. Petersburg).
2. Problems of local and regional government
2.1 The relationship of regions with local authorities
12. The Russian Federation is not a unitary state and regional entities enjoy broad legislative and executive powers emanating from the Federal Constitution. The ways in which the regional entities use their powers may have far reaching implications for the autonomy of local authorities. It has been noted that the more a regional authority asserts its authority, the more local authorities are likely to be under pressure. In regions such as Vologda and Tambov, regional administrations are supportive of local autonomy, but there are others where local autonomy is kept to the absolute minimum.4 Local-regional tensions are sometimes manifested in individualised conflicts between governors and mayors, resulting in a de facto restriction of local autonomy.
13. On 13 September 2004, President Putin announced on television that he was abolishing direct elections for regional governors. Governors would henceforth be appointed by regional assemblies, from a list of candidates proposed by the President.5 The recentralisation of resources and administrative functions which has taken place since 2000 seems to have led to the weakening of local self-government. If this trend is not reversed, the relationships between the regions and local government will continue to be problematic and incompatible with the international commitments of the Russian Federation. The Reference Framework for Regional Democracy requires that “The relationships between regional authorities and other sub-national territorial authorities be governed by the principles of regional self-government set out in this document, and local self-government set out in the European Charter of Local Self-Government and the principle of subsidiarity”. Similarly, Congress Recommendation 240 (2008) (Art.8.3) stipulates that “Regional authorities shall cooperate with local authorities in the pursuit of objectives of general interest and to meet citizens’ needs”. There is no doubt that increasing intervention in the affairs of local self-government by upper-level (regional) authorities is incompatible with Article 4 (3) and the Preamble of the Charter regarding the principle of subsidiarity.
2.2 Sharing competencies between different levels of government
14. The delegation observed that competences of local authorities are not always adequate or clearly defined. There is often a large gap between competencies and resources. The Constitution of the Federation determines the main areas falling within the jurisdiction of the Federation and the subjects, and the right of the subjects to enjoy full State authority outside those areas. Local authorities are empowered to carry out all public services of local interest. These include the socio-economic development of the municipality, pre-school, primary, general and vocational education, public health, maintenance of public order, land use planning, social protection and employment, environmental protection and safeguarding against fire. Federal legislation entitles municipal authorities to fulfil certain state functions delegated to them. The delegation of state competencies to local and regional authorities is governed by federal law and the legislation of the Federation’s subjects.
15. It was initially intended to clearly define the competencies of all types of municipalities and thus to avoid duplications in the public service. However, under recent legislative amendments, the scope of shared competencies has been broadened. It is reported that 49 amendments to Law 131-FZ have taken place since its promulgation in 2003. Public services falling in this category, such as public transport, support for agricultural production, management of emergency situations and civil defence have not been matched by the required financial and human resources. Consequently, local authorities have been forced to bear the responsibility of performing numerous additional services without having the resources to carry them out. As a result, there has been a problem of the forced transfer of competencies from both urban and rural settlements to the larger municipal districts with the accompanying financial resources.
16. Recent legislative proposals to further amend Law 131-FZ and Law 184-FZ aim at setting up a regime of substituting local authorities by subjects of the Federation; and to ensure the joint responsibility of the State and local authorities in performing local public services of high quality. In the case where the federal law allows the regional parliaments to adopt a law on the power of substitution in the regional capitals, this would not only undermine the strength of the law itself, but also the guarantees recognised to local authorities. It would undermine the right of citizens to local self-government in capital cities. Such developments do not seem to be compatible with Article 3 (1), requiring that local authorities regulate and manage a substantial share of public affairs, or with Article 4 (4), stipulating that powers given to local authorities shall normally be full and exclusive and may not be undermined or limited by another, central or regional authority.
17. Regulating and managing a substantial share of public affairs under their own responsibility clearly means that local authorities should not be limited to acting as agents of other levels of government, which however to a large extent seems to be the case.
2.3 Financial resources of local authorities
18. Many settlements have an acute lack of financial resources to carry out the functions assigned to them by specific legislation. Financial problems of local authorities include not only the insufficiency of financial resources, but also the freedom to determine expenditure priorities, the exercise of political choices and the determination of local taxes and charges. The rapporteurs have real doubts about the effective working of local accountability, especially in smaller municipalities. In the light of Article 9 (2, 3 and 4) of the Charter, such practices cannot be defended. Where arrangements for equalisation exist they are primitive, making it difficult for a locality to benefit from local industries to contribute to its tax base. There is a pressing need to make the equalisation system work more efficiently and equitably in order to comply with the Article 9(5) of the Charter. Ineffectiveness in the implementation of the equalisation mechanisms also exists at the regional level. In addition, there seems to be frequent use of sector-specific grants and grants earmarked for specific projects. Such a situation undermines the freedom of local authorities to exercise discretion within their own sphere of competence (Article 9 (7) of the Charter). Finally, it appears that not all local authorities have access to the national capital market, in contravention with Article 9 (8) of the Charter.
19. Municipalities' share of their own resources in total budgets is between 30 to 50 percent, of which 10 to 20 percent comes from local taxes, mainly property tax. The remaining part comes from federal and regional transfers. As a general observation, revenues are not proportional to the competencies of the municipalities. The Congress stressed, in Recommendation 143 (2004), that the economic and financial base of most local authorities were not adequate for the performance of local public services. The Russian authorities were called by the Congress to supplement the framework laws by amendments to the Tax Code and the Budget Code so that local authorities were provided with necessary financial resources. This does not appear to have happened.
20. On the other hand, steps have been taken by the Federal government to reduce local authorities' own resources and increase their dependence on transfers from central and regional government, which has further reduced their fiscal autonomy. This coincided with an increase in the scope of local competencies in 2005-2008, resulting in increased expenditures of local authorities without a matching increase in revenues. In a report to the Parliamentary Assembly in March 2009, it was pointed out that local government reform has, paradoxically, led to increased centralisation of financial flows.6 For example, the share of the transfers in the consolidated budget of the Russian Federation increased from 44 percent in 1999 to 66 percent in 2007. Equally, according to the figures provided by the Ministry of Finance for the year 2006, only 2 percent of the municipalities were financially self-sufficient while 60 percent received more than half of their revenues from the transfers.
21. Rural settlements, which constitute the great majority of local government entities, have also been stripped of a substantial part of their revenue base. Since nearly two thirds of their territory is owned by the state, rural settlements are deprived of receiving land tax to increase their budget revenues. As a result, many rural settlements are forced to transfer their competences and financial resources to municipal districts. Such a situation is incompatible with Article 9 (1) and 9 (2) of the Charter, which stipulates that local authorities shall be entitled to adequate financial resources of their own. Local authorities’ financial resources should be commensurate with the responsibilities provided for by the Constitution and the law. Congress Recommendation 228 (2007) underlines the need to provide sufficient resources to local authorities for the effective discharge of the competencies and responsibilities. Where local authorities are discharged with additional responsibilities, they should either receive transfers of adequate resources or be authorised to raise new resources.
2.4 Changes in boundaries
22. The Charter (Article 5) requires that changes in local authority boundaries should not be made without consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute. This article is about “changes in local authority boundaries”, which must include mergers. The consultation stipulated in Article 5 does not always happen. Given the large number of municipalities with small populations, it is natural to seek real change in this respect. Article 4 (6) also stipulates that local authorities should be consulted in so far as possible, in due time and in appropriate way, in the planning and decision-making processes for all matters which concern them.
23. Recommendation 228 of the Congress (Article 11), requires that any decision by a higher level authority concerning one or more local authorities must be adopted by means of a procedure comprising, at least, prior notification of the proposed decision to the local authorities concerned, their right to access to the relevant administrative documents, their entitlement to state their own positions within a reasonable time and the obligation to give reasons for the decision, taking account of the positions expressed by the local authorities.
24. On 1 March 2009, 12 local referendums and 146 votes were organised on changes to municipal boundaries in 79 Russian regions, according to the above mentioned rules. At first glance, this suggests a compliance with the provisions of the Charter. However, there have been many other cases where local authorities concerned have not been consulted on the boundary changes connected with merging decisions of higher level authorities. In many places referendums on the merger of municipalities have not been carried out, being replaced by the consent of municipal councils.
25. The recent amendments to Law 131-FZ allow local authorities to merge without consulting their populations. Such a change cannot be regarded as compatible with the democratic principles enshrined in the Charter and the repeatedly expressed legal position of the Constitutional Court of the Russian Federation.
26. As a part of the local government reform in the Russian Federation there is a pronounced trend towards merging rural and urban settlements into larger municipal districts. The main reasons expressed in favour of such enlargement are the absence of revenue resources and the need for increasing efficiency in the performance of local public services. Some of the recent amendments to Law 131-FZ serve to facilitate the merging of settlements and to oblige local authorities to proceed with a referendum on the issue, even where they have no interest in a merger. The delegation was informed by the authorities that many small settlements are in favour of mergers since they lack the resources to provide services. However, the representatives of the small settlements that the delegation met were more concerned of mergers being forced on them against their wishes.
27. In November 2007, the Congress was informed about the boundary change in one of the largest and richest municipal districts (Odintsovsky) in the Moscow Region. This was regarded as an attempt to change the boundaries of a local authority without the consent of the local authorities concerned. It required to dissolve 16 constituent municipalities and to merge them into a new legal entity. This move was not supported by 4 of the 16 communities concerned. The initiative was put to referendum and the result was against the merger.
2.5 Dismissal of mayors
28. Law 131-FZ stipulates the grounds allowing state bodies to temporarily takeover some local government powers. The dismissal procedure is a part of this process. It covers cases where local governments run a fiscal debt or where appropriations assigned to them by State bodies for carrying out a delegated State power have been used for other purposes. In such cases a proper court decision is needed.
29. Law No: 90-FZ entered into force in May 2009, amending Articles 35, 36, 37, 40 and 74 of Law 131-FZ, dealing with the powers of the representative body and the chief executives, whether the mayor or the head of the municipality is elected directly by popular vote or from among the councillors or whether the head of local administration is contracted by the representative body. The new law aims to make the head of the local administration more responsible and accountable to the representative body. A requirement was introduced for the mayor to present an annual report to the municipal council, covering both local public affairs and state functions which are devolved to local authorities by federal or regional laws.
30. The requirement to submit an annual activity report poses no compliance problem with the Charter. One may argue that the amendment aims to improve the quality of the governance at the local level. However, the amended law at the same time enlarges the scope of the powers of local assemblies to dismiss the mayor upon the initiative of members of the council and the governor (Art.74.1).
31.The dismissal procedure can be initiated by at least one third of the municipal councillors or by the regional governor. If the council finds the annual report unsatisfactory by a two thirds majority of its members, the dismissal is confirmed. If the council's attempt at dismissal fails, it may be repeated two months later. Grounds for dismissal are: a) decisions, actions by the head of the municipality which entailed the consequences set out by Article 75, Part 1, Paragraphs 2 and 3 of Law 131-FZ; b) failure to carry out, for at least three months, the responsibilities assigned to local governments by higher authorities; c) negative evaluation of the mayor’s activities by the representative assembly for two consecutive years, following the presentation of the activity report.
32. Apart from the compliance with national legislation, compliance with international conventions and the interests of civil society, obedience to certain procedural requirements seems to be neglected. For example, it is reported that following the adoption of the amendments, several local assemblies have removed their mayors from office, including Chaikovsky (Permsky krai), Ozersky (Chelyabinskaya oblast), Kupino (Novosibirskaya oblast), and Suzdai (Vladimirskaya oblast), on the initiative of the respective governors. Little care has been demonstrated to observe the procedures prescribed by the law, requiring that decisions on the dismissal of mayors take place with proper debate in local assemblies. Similarly, the dismissed mayors have been denied the possibility to express their own view before the assemblies. The respective electorates were not even informed about the decisions.
33. Those in favour of the amendments argue that there are no legal restraints concerning the procedures of dismissal of elected members of the municipal bodies. Therefore, these issues can be resolved by the local self-government by itself, in accordance with the national legislation. It is argued that these amendments enhance the authority of the local assembly, making the head of the municipality more accountable. Presenting an annual activity report increases transparency. Such changes in the legislation aim to improve local governance, in compliance with the Charter, which requires that the rights of local government shall be exercised by democratically constituted councils or assemblies. Finally it is argued that local government bodies have the right to appeal in court any time under Article 47 of the Constitution.
34. Against this, numerous criticisms of these amendments have been expressed. It is argued that allowing the dismissal of mayors by the local council, at the initiative of the regional governor, contradicts the fundamental principle of the independence of local self-government and introduces an extra-judicial procedures for the mayor’s dismissal; that where the mayor is elected directly, the right of the electorate to local self-government is undermined; that giving the governor the power to initiate the procedure of dismissal, in cases where the head of municipality breaches his duties to exercise the state powers devolved to him, constitutes an unacceptable intervention in the internal affairs of municipalities and contradicts Article 8 (3) of the Charter. Otherwise, intervention in local affairs by controlling authorities could not be kept in proportion to the importance of the interests which it is intended to protect. No consultation with the electorate is prescribed by the new legislation, which is incompatible with Article 4 (6) of the Charter. The creation of “a new institution of out-of-court dismissal” in parallel with the existing mechanism of “removal from office only by court decision” increases the dependence of mayors on the political party in power.
It also mixes up roles, with the risk that a municipal council may become an agent of the State in restricting the freedom of action of the mayor. The result is to undermine the autonomy of local authorities [Article 8 (2)].
35. The dismissal of mayors poses a serious problem from the standpoint of Article 7 (1), which provides that the conditions of office of local elected representatives shall provide for free exercise of their functions .This is an area in which recent amendments to the law have created real problems, especially with regard to the removal of heads of municipalities.
36. Since the amendment to the Article 74.1.2 of the Federal Law infringes the principle of the free exercise of local functions, it must be regarded as incompatible (Article 4 (4)). The responsibility of the elected or appointed chief executives of local authorities to the council or assembly representing the local authority shall be guaranteed by law in an effective manner. Although these guarantees shall, in particular, ensure that the council or assembly has the deciding say in matter of prime importance to local authority in question, this does not entitle the respective authorities to dismiss the chief executives arbitrarily or under the influence of partisan pressures.
37. The European Charter stresses the need to consult local authorities not only with respect to the changes in their boundaries and in connection to the ways in which redistributed resources are to allocated, but also for all matters which concern local authorities directly [Article 4 (1)]. Consulting local authorities, regarding all these matters during the decision-making and planning stages in due time and in an appropriate way is one of the important preconditions of local autonomy. There is much evidence to show that this obligation, inseparable from the principle of subsidiarity, is not properly respected.
38. The right to be consulted is guaranteed in the Additional Protocol to the European Charter on the Right to Participate in the Affairs of a Local Authority, which stipulates that “In the planning and decision-making processes concerning measures to be undertaken to give effect to the right to participate in the affairs of local authority, local authorities shall be consulted insofar as possible, in due time and in an appropriate way” [Article 2 (4)].
39. The Tula complaint is relevant here. After the adoption of a new law in 2008 by the Tula Regional Parliament, several members of the Tula Municipal Council lodged a complaint to the Congress in 2009. The legislation in question changed the electoral system of municipal elections for cities of more than 400,000 inhabitants from a majority to a proportional system. At the same time, Law 1024-ZTO (9 June 2008), "on the Types of Election Systems, the Manner and Conditions for their Application in Municipal Elections in the Tula Region", was contested in the court, on the grounds that the local authorities in Tula had not been consulted and as a result, Article 4 (6) of the European Charter had not been respected. However Article 4 (6) does not prohibit taking a decision without consultation with local authorities. According to the Court, consultations with local self-government in adopting the laws on local self-government are simply optional but not obligatory. In March 2009, the Prosecutor of the Tula Region rejected the case on the grounds that the Law 131-FZ stipulates that systems for municipal elections are determined by the regional law (Article 23) and the requirement in the Charter to consult local authorities “in so far as possible” does not mean that a decision taken without such consultation is null and void. The case has been referred to the European Court of Human Rights in Strasbourg. Its decision is still pending.
40. In this context, Congress Recommendation 171 (2005) stresses that “consultation of local authorities has to be a required part of policy-making and administrative processes, enabling the wishes of local authorities to be known in good time and properly taken into account in the decisions of central and regional authorities”.
2.7 The electoral system and its operation
41. The Congress delegation heard many doubts expressed during their meetings, both in large and small settlements, as to whether the right of self-government to regulate and manage a substantial share of public affairs through democratically constituted authorities is fully honoured. These doubts often focused on electoral arrangements. There is considerable dissatisfaction with the rise in “closed party list” elections and the de-registration of all but the very largest parties (those which can prove more than 50,000 members). In particular, most local and regional parties no longer have any legal existence and are unable to field candidates in elections at any level, and sometimes independent candidates are also prevented from standing in local elections. For example, in the rural settlement of Hamatina in October 2009 several people were prevented from standing in local elections because of the closed party list. The delegation heard that, in the Chelyabinsk Region, some of the seven major parties impose candidates on municipalities from above, who are not chosen locally.
42. The Delegation also heard that electoral commissions tend to be dominated by the ruling party and are perceived as lacking in impartiality. The recent local elections were perceived by many of the Delegation's interlocutors as being flawed, with allegations of vote-rigging and abuse of administrative resources and general expressions of popular disillusion with the election process. The lack of real choice and strong opposition in elections were frequent complaints. Not only are local NGOs no longer allowed to send official observers to the elections, but no international observers were invited to observe the last elections. Irregularities reported in the recent local elections include a voting station in a district with 8000 voters, where 2000 people voted in the last 3 minutes and another district where 5000 votes were cast in the final 5 minutes of voting. Vote counting seems to becoming less transparent. Social and public monitoring of voting should not be prevented.
43. Several amendments to the Electoral Law 67-FZ in recent years have raised doubts about their real contribution to strengthening local self-government. These changes include the introduction of a system of proportional representation in municipal elections, a ban on local non-governmental organisations from presenting their own candidates in elections and a prohibitively high threshold for political parties to be represented in the municipal councils.
44. There is no doubt that the introduction of a proportional system into local elections may lead to a degree of instability in local governance. With regard to the compatibility of such amendments with the Charter, it may be argued that they may adversely affect the functioning of local self-government to achieve the aims mentioned in the Preamble of the Charter, by reducing the enthusiasm of electors and candidates for local democratic processes.
45. The Round Table in Miasskoye, organised during the delegation's last visit, demonstrated a strong enthusiasm at local level for people to run their own affairs. However, in general terms, local democracy in Russia began as a top-down initiative and as such has a long way to go before it takes root. Some of the resulting structures are perceived as artificial. On the other hand, there is increasing grassroots activity at the local level, with local activists becoming increasingly articulate and resisting what they perceive as government moves to claw back the powers that they were given in the original Law 131-FZ. The recent amendments to this law allowing local authorities to decide whether or not to proceed with elections for a directly elected mayor or whether more powers can be invested in “an appointed city manager” are perceived by many as a decline in local democracy.
46. The delegation's findings do not enable it to conclude that electoral processes at local level operate in such a way that local councils or assemblies can now be regarded as democratically constituted institutions according to Article 3 (2) of the Charter. This issue is also important with respect to the European Convention on Human Rights. Rights and freedoms constitute a whole and cannot be separated from each other. The absence of one may considerably affect the enjoyment of others. For example, the harassment of journalists may have far reaching effects, not only upon the freedom of expression, but also on the quality of democratic elections. The Delegation was informed of several such cases. It observed that, while media in Russian Federation are very active, they are constantly and increasingly threatened. Russia figures in the 153rd position in the 2009 Worldwide Press Freedom Index (47th out of the 47 Council of Europe member states).
47. Although the Russian Federation has not ratified Protocol 12 of the Convention, several obligations from other provisions of the Convention make the practices connected with local elections highly questionable. Articles 10, 11 and 14 of the European Convention on Human Rights are important in this respect. The first (Article 10) entitles everyone to the right to freedom of expression "without interference by public authority”. The second (Article 11) is concerned with the freedom of assembly and association. Both are important for local councils or assemblies to be democratically formed. The prohibition of discrimination (Article 14) stipulates that “the enjoyment of these rights shall be secured without discrimination on any ground". Practices observed during the local election processes in Russian Federation cannot be reconciled with these provisions of the Convention. The democratic nature of the process of constituting local decision-making bodies is adversely affected by these practices.
2.8 National and international relations
48. The principles of inter-municipal cooperation are laid down in Articles 66-69 of Law 131-FZ. A council of municipalities is expected to be formed in each region. The Council of Municipalities shall neither interfere in the activities of municipalities, nor limit the activities thereof. Article 67 empowers the Councils of Municipalities to form a single All-Russia Association of Municipalities. This umbrella association may also incorporate other associations of municipalities. The All-Russia Association can make proposals concerning the nomination of the members to the Russian delegation of the Congress.
49. Law 131-FZ empowers municipalities to establish inter-municipal companies to jointly resolve issues of local significance. However, the lack of financial resources makes their initiatives in the economic and commercial fields ineffective. Similarly, they may decide to form non-commercial organisations (Articles 68 and 69). There are no limitations in the law to the right of local and regional authorities to associate internally or externally. Although this conforms with Article 6 (1) of the Charter, requiring that local authorities shall be able to determine their own internal administrative structures, the obligation to set up associations in all regions, making their establishment mandatory, is questionable from the point of view of its compatibility with Article 10 (2). The latter article, concerning the right of local authorities to associate, as well as to belong to an international association of local authorities, cannot be regarded as empowering the State to pressurise local authorities to unite against their will. In a similar vein, when the Reference Framework stimulates that regional authorities may "define their mutual relationship" and should be allowed to join international organisations of regional authorities, this is clearly intended to express a right of voluntary association.
50. Before 1990 there were no national associations of local authorities in Russia. By the initiative of the Federal Government several national associations have been set up. Since this a top-down method of creating associations, it is valid to ask to what extent they represent the real will and interest of their members. Associations of local authorities have been set up in most regions in recent years, but they remain under the authority of the regional governors, which prevents them from lobbying for their own interests. The Delegation heard that most mayors and councillors have no experience of national associations of local authorities.
51. The Council of the Federation, as the upper chamber of the Parliament, plays an active role in the legislative process. It interacts with federal authorities and informs them of developments in the regions. The Council is composed of two members from each region. There is also a nationwide association, the National Congress of Municipalities. However, the existence of such bodies does not ensure that they are effective in protecting the interests of their members. A representative of the Council claimed to have been consulted by Duma Committees only after the concerned decisions had been taken.
52. Another organisation, the Civic Chamber, represents the interests of the civil society. Its main task is to help enforce legislation, shape local communities, and assist local people to set up local government bodies. It presents itself as an institution which functions as a link between the civil society and the decision-making bodies. Awareness raising activities of the Civic Chamber are intended to contribute to nurture the democratic culture in local communities. It has also a function of monitoring the implementation of Law 131-FZ. It presents legal opinions on new legislation. A third its 129 members are appointed by the President. This group appoints a further 43 members (from a list of candidates presented by Pan-Russian civil society organisations). These first two groups then appoint the remaining 43 members (representing regional organisations).
53. While the delegation observed that there is clearly a right in the Russian Federation to associate as required by the Charter, there are concerns about the “top-down” development of the structures of association. While at first glance a “top-down” approach may seem to be compatible with the expression in Article 6 (1) regarding “without prejudice to more general statutory provisions”, it would not be well-placed to adapt internal administrative structures “to local needs” and may not ensure “effective” management”. A “bottom-up” approach would benefit elected representatives more and would make it possible to adapt the implementation of this principle to the spirit of Article 10 (2). Only a “bottom-up” association as mentioned above would ensure the real “protection and promotion of the common interests” of local authorities.
54. In several regions in the Russian Federation preparations are underway to create agglomerations. Seven municipalities around the city of Krasnoyarsk, a regional capital, will be agglomerated in 2020. However, the possibility to create agglomerations is not defined in Law 131-FZ. The rules concerning the status of agglomerations and the bodies of local government do not exist. It is not known whether the general public will be consulted during the process of setting up agglomerations. It would be advisable to make detailed provisions to shed light on these issues to avoid problems in the future.
55. Corruption is perhaps the most challenging area facing local and regional democracy in the Federation. Many of the people whom the delegation met expressed concern at the level of corruption in local and regional government. Although laws exist to control corruption, especially with regard to conflicts of interest, it is alleged that the legislation is routinely circumvented.
56. There are many allegations of corruption at local level. News stories abound concerning the involvement of the relatives of local politicians, such as the phenomenon of “billionaire wives”, perceived as the result of the Russian President obliging politicians to declare their income. The delegation heard that the cost of public works is 5 to 7 times greater than for similar projects in the west, imposing a huge burden on local and regional authorities. Russia figures high on the Transparency International Corruption Perception Index (only one other Council of Europe member state is higher). Corrupt practices can be regarded as a complete violation of the Charter concerning the very definition of local self-government, which requires that public affairs must be regulated and managed “in the interests of local population” (Article 3 (1)). The Reference Framework for Regional Democracy expresses the same principle, referring to “the interests of the regional population”.
The Council of Europe's Code of Conduct of Local and Regional Elected Representatives stresses that individual favouring must be banned: “Elected representatives shall not perform their functions or use the prerogatives of their office in the private interest of individuals or groups of individuals, with the aim of deriving a direct personal benefit therefrom” (Article 8). Similarly, in Article 13 there is a ban on bribery, active or passive. The Reference Framework stipulates that regional government should be exercised with "openness, transparency, participation and public accountability".
57. New mechanisms for decision-making to reduce corruption may be recommended. New forms of compulsory competitive tendering that are in use in some developed countries would be worth exploring in this respect.
2.11 The right to determine administrative structures
58. The Charter (Article 6) and the Reference Framework (Section 2, "Regional Administration") stipulate that local and regional authorities should determine their own administrative structures in the light of local needs and to regulate the conditions of service of their employees. The recruitment of high quality staff on the basis of merit and competence, providing adequate training opportunities, remuneration and career prospects are inseparable preconditions of this right. The delegation observed that in some regions, such as Chelyabinsk, training courses are organised for newly elected heads of all settlements, including rural ones, through an Academy for training local staff. This is an important step, since many of the problems encountered by local authorities are connected to the lack of qualified managers and competent staff, in addition of the training needs of local politicians. However, there is no doubt that more can and should be done. Where in-service training opportunities and know-how are not provided to local officials and elected representatives, the tendency for local authorities to transfer their competences to higher authorities may continue. The establishment of a federal training institution or a chain of regional training centres to meet this need would contribute to fulfilling Article 6 (2) of the Charter and Section 2 of the Reference Framework.
2.12 Legal protection of local and regional government
59. While Article 11 of the Charter and Section 1 (e) of the Reference Framework stipulates the right of local and regional authorities to a judicial remedy to secure free exercise of their powers, real concerns were raised with the delegation about the independence of the judiciary. It was alleged that it is now impossible to protect the rights of the individual citizens and autonomous institutions, because the judiciary is no longer independent, or impartial. Articles 6, 7 and 13 of the European Convention on Human Rights regarding the right to fair trial, no punishment without legal basis and the right to effective remedy are meaningful only where the independence and impartiality of the judiciary is ensured.
60. The transfer of public property to local and regional authorities continues to be a major concern for many local communities. A large proportion of land, the main source of finance in rural settlements, remains State-owned and therefore not subject to local planning controls. Federal Law 53-FZ (2006) on state registration of immovable property has had the effect of depriving metropolitan areas of the right of disposal sites and greatly complicating the procedure of allocation.
61. There are complaints that local authorities lack the powers to manage their land properly. Federal authorities are reluctant to transfer land to local authorities. Land planning and implementation of city master plans are by nature local tasks and therefore have to be handled by local authorities without intervention of the State.
3. Conclusions and recommendations
62. During their visits to the Russian Federation, the rapporteurs heard that, despite the promising earlier achievements of the period of rapid legislative development up to 2003 that brought the Russian system from “democratic centralism” towards an autonomous system of local government in line with the principles of the Charter, numerous subsequent amendments to the basic legislation had overshadowed these positive steps.
63. The number of amendments of Law 131-FZ increased to 49 in a relatively short time. It is obviously not easy to transform the traditionally centralistic characteristics of a political system to a system based on the principles of decentralisation and subsidiarity. However, the most significant amendments appear to weaken the original text: the broadening of the scope of the shared competences between local governments and higher-level authorities, without providing additional financial resources, the increasing dependence of local authorities upon central funds, the increasing trend of merging rural and urban settlements into larger units, dissolving smaller municipalities or changing the boundaries of local authorities without consulting local communities, enhancing the authority of elected local assemblies to dismiss mayors, and the increasing political and administrative problems resulting from changing electoral systems.
64. The Russian Federation has made important efforts to align itself with the Charter: it should not draw back from the progress it made. Harmonisation must be effectuated not only on paper, but also in practice, based on the findings of this report and bearing in mind the principles of the Charter as well as those of the European Convention on Human Rights.
1. The suggestions made in 2004 by Recommendation 143 and Congress Resolution 171 should be seriously taken into consideration.
2. The right of local authorities to be consulted on issues that concern them, guaranteed by the Charter, must be strictly observed. Even where there are justifiable grounds for changing boundaries for more efficient management of local affairs, local communities or their representative bodies must be consulted by all means available.
3. Criticisms of the recent amendments to Law 131-FZ concerning the dismissal procedure of mayors by municipal councils on the initiative of regional governors must be taken into consideration and necessary revisions be made in both legislation and practice.
4. It is essential to provide local authorities with financial resources commensurate with their competences, as required by the Charter. Lack of transparency with regard to the allocation of funds cannot be reconciled with the essence of local self-government. Local authorities have to be provided with matching funds or be authorised to raise revenue when they are delegated State functions, to be carried out on behalf of higher-level authorities.
5. The electoral system should be revised to reduce the prohibitively high thresholds for political parties to be represented in the municipal and regional councils.
6. The provisions of Law 131-FZ make the establishment of municipal associations mandatory. However, Article 10 (2) of the Charter does not allow the State to pressurise autonomous local units formally or informally to unite. Such choices must be made at the discretion of freely elected local assemblies.
7. De jure and de facto measures have to be taken to ensure that autonomous local authorities are not completely controlled by regional authorities. Regional governors should be prevented from constantly interfering into the affairs of local authorities. There are provisions in the Reference Framework to prevent local authorities becoming inferior legal entities vis a vis regional authorities even in federal states. The Reference Framework underlines that regional democracy must not be achieved at the expense of the autonomy of local authorities, but must be accompanied by measures designed to protect such authorities respecting what has been achieved through the Charter.
8. Small settlements deprived of necessary financial resources and the landed property to carry out their responsibilities in providing public services are under pressure to transfer their competences to higher-level authorities. This should be avoided by appropriate measures in order to protect the institution of local self-government itself.
9. New decision-making mechanisms should be considered to reduce corruption, such as forms of compulsory competitive tendering that are in use in many developed countries.
10. Programs and organisations for training local officials and elected representatives should be expanded and strengthened to render public service provision at local level more efficient.
11. The Draft Law to authorise the regional parliaments to pass laws to substitute the powers of local authorities, concerning a number of municipal duties of local importance by the government of the subjects of the Federation, should be examined once again in detail, in consultation with the Council of Europe. It may undermine the philosophy of local government reform in Russia, based on Article 130 of the Federal Constitution, which stipulates that local government shall manage public affairs of local importance under its own responsibility. This would prevent a deviation from Article 4 (4) of the Charter, which emphasises that powers given to local authorities should be full and exclusive.
Programme of the first monitoring visit of the Congress of
Local and Regional Authorities to the Russian Federation
(Moscow, 16-17 December 2009)
- Mr Christopher NEWBURY Rapporteur on local democracy, member of the Institutional Committee of the Congress, Councillor of Wiltshire County Council, United Kingdom
- Mr Knud ANDERSEN Rapporteur on regional democracy, Vice-president of the Congress, Councillor of Bornholm, Denmark
- Prof. Dr. Ruşen KELEŞ Member of the Group of Independent Experts on the European Charter of Local Self-Government and Professor at Ankara University, Turkey
Wednesday 16 December 2009
- Dr. Evgeny M. MARKOV, President of the Union of Small Cities and Towns.
- Mr Yuri OSINTSEV, Deputy Minister for Regional Development and other officials of the Ministry for Regional Development.
- Mr Stepan KIRICHUK, Chair of the Committee on Local Self-Government of the Council of the Federation, President of the Russian National Congress of Municipalities, former member of the Congress of the Council of Europe;
- Mr Valery KADOKHOV, First Vice-President of the Committee on Regional Affairs of the Council of the Federation, member of the Congress of the Council of Europe;
- Mr Anatoly SALTYKOV, First Vice-Chair of the Committee on Local Self-Government of the Council of the Federation, member of the Congress of the Council of Europe.
- Mr Victor USACHEV, President of the Committee on Regional Affairs of the State Duma;
- Mr Vyacheslav TIMCHENKO, President of the Committee on Local Self-Government of the State Duma, Member of the Presidential Council on the Development of Local Self-Government, President of the Russian National Council of Local Self-Government;
- Ms Svetlana RAZVOROTNEVA, Head of the Central Executive of the Russian National Council of Local Self-Government.
- Dr. Emil MARKWART, President of the European Club of Municipal Experts.
Thursday 17 December 2009
- Mr Fernando M. VALENZUELA, Head of the EU delegation in Moscow and Mr Gavin EVANS, Head of the political department of the EU delegation.
- Mr Victor PANKRASCHENKO, Member of the Civic Chamber, Member of the Committee on Local Self-Government of the Council of the Federation, Chief Executive Officer of the Russian National Congress of Municipalities, Member of the Presidential Council on the Development of Local Self-Government, Secretary of the Russian delegation of the Congress of the Council of Europe;
- Ms Victoria BRAILITSA, Member of the Civic Chamber, Secretary of the Russian delegation of the Congress of the Council of Europe.
Programme of the second monitoring visit of the Congress of
Local and Regional Authorities to the Russian Federation
(Chelyabinsk and Moscow, 14-15 April 2010)
- Mr Christopher NEWBURY Rapporteur on local democracy, member of the Institutional Committee of the Congress, Councillor of Wiltshire County Council, United Kingdom
- Mr Knud ANDERSEN Rapporteur on regional democracy, Vice-president of the Congress, Councillor of Bornholm, Denmark
- Prof. Dr. Ruşen KELEŞ Member of the Group of Independent Experts on the European Charter of Local Self-Government and Professor at Ankara University, Turkey
Wednesday, 14 April 2010 in Moscow
- Members of the European Club of Municipal Experts.
- Mr Dmitry MURATOV, Editor-in-Chief of Novaya Gazeta.
- Ms Ludmila ALEKSEEVA, Chairwoman of the Moscow Helsinki Group.
- Mr Boris NEMTSOV, former deputy Prime Minister, Co-founder of the political party ‘Union of Right Forces’.
Thursday, 15 April 2010 in Chelyabinsk
- Mr V. V. MYAKUSHEV, President of the Legislative Assembly of Chelyabinsk and Chairman of the Committee on Budget and Taxes as well as other members of the Legislative Assembly of Chelyabinsk.
- Round-table discussion on "The respect of human rights and the problems and prospects of local self-government in the settlements of Chelyabinsk region" in Miasskoye village under the leadership of the Russian Association of rural settlements.
- Representatives of the media and NGOs in Chelyabinsk.
- Representatives of the City of Chelyabinsk.
3 See Dick Marty: Situation in the North Caucasus Region: security and human rights, Parliamentary Assembly, September 2009, http://assembly.coe.int/CommitteeDocs/2009/ajdoc43_2009.pdf
4 Adrian Campbell et al., “Institutional Transition and Local Self-Government in Russia”, Kier Discussion paper Series, Kyoto Institute of Economic Research, No:640, October, 2007, pp.11-12.
5 Vladimir Gel'man, "Leviathan's return: the policy of recentralisation in contemporary Russia", In: Federalism and local politics in Russia, Routledge, 2008.
6 Honouring of obligations and commitments by the Russian Federation, AS/Mon(2009)09 rev., March 2009, http://assembly.coe.int/CommitteeDocs/2009/20090330_amondoc09rev_2009.pdf