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Recommendation 143 (2004)1on local and regional democracy in the Russian Federation

The Congress,

1. Drawing attention to:

a. Article 2.1.b of Statutory Resolution (2000) 1, which provides that one of the aims of the Congress is “to submit proposals to the Committee of Ministers in order to promote local and regional democracy”;

b. Article 2.3 of Statutory Resolution (2000) 1, which provides : “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 Resolutions 31 (1996), 58 (1997) and 106 (2000), which set out guidelines on drawing up the reports;

d. Congress Recommendation 30 (1997) on the state of local democracy and federalism in Russia;

2. Having regard to explanatory report CG (11) 5 on local and regional democracy in Russia, which was prepared after two official visits to Moscow (on 8 and 9 July 2003 and from 31 March to 2 April 2004) and an official visit to the Volga federal district (28-30 January 2004) by co-rapporteurs Guido Rhodio (L, Italy, EPP/CD) and Hans Ulrich Stöckling2 (R, Switzerland, ILDG). They were assisted by Professor Francesco Merloni, Chair of the Group of Independent Experts on the European Charter of Local Self-Government (hereinafter “the Charter”), and Professor Michel Lesage, Council of Europe expert, both of whom the co-rapporteurs sincerely thank for their invaluable help;

3. Likewise thanking:

a. the Russian national delegation to the Congress and the Congress of Local Authorities of Russia for their great assistance with the report and the arrangements for the on-the-spot visits;

b. the Russian Federation Presidential Administration, the federal government, the Federal Assembly, the Supreme Court, the Public Prosecutor’s Office (Prokuratura), the Volga federal district, the Nijni Novgorod region, local authorities and research institutions for making themselves available, providing help for the report and giving the co-rapporteurs the benefit of their comments;

4. Wishes to draw the Russian federal authorities’ attention to the general observations and the recommendations below:

I. REFORM OF LOCAL AND REGIONAL SELF-GOVERNMENT GENERALLY:

5. Congratulates the Russian authorities on completing the first stage in the reform, culminating in enactment in 2003 firstly of the federal law amending and supplementing the federal law on the

general organising principles applying to legislative (representative) and government bodies of Constituent Entities of the Russian Federation and secondly of the federal law on the general organising principles of local self-government in the Russian Federation (hereinafter “the framework laws”);

6. Acknowledges that, through its work, the commission in charge of the reform, chaired by Dmitri Kozak (hereinafter “the Commission”) has set in motion a constructive multi-stage process with regard to local administration in Russia and has laid the foundations for a more balanced apportionment of powers between the three levels of public authority in Russia (the Federation, the Constituent Entities and the local authorities) on the basis of the subsidiarity principle (Article 4.3 of the Charter);

7. Welcomes the fruitful advisory cooperation on the framework laws between the Commission and the Council of Europe (the Directorate of Co-operation for Local and Regional Democracy);

8. Encourages the Russian authorities to continue with the reform, whose rigorous implementation will contribute to the long-term development of local and regional self-government in Russia;

9. Calls on the Russian authorities to supplement the framework laws by amendments to the Tax Code and Budget Code so that local authorities are provided with the financial resources necessary to the exercise of their prerogatives set forth in federal law;

II. DEVELOPMENT OF LOCAL DEMOCRACY IN RUSSIA:

A. Guarantees and achievements

10. Notes with satisfaction that the Russian federal authorities have taken into account the recommendations set out in Congress Recommendation 30 (1997);

11. Welcomes the fact that in the last ten years the concept and fact of local self-government have gradually taken root in Russian political practice despite heated debate about the place and future of local self-government in Russia’s institutional architecture;

12. Likewise welcomes the fact that in the last ten years some 12,000 local authorities endowed with elected political bodies have been set up in Russia, notwithstanding some difficulties in a number of the Constituent Entities;

13. Notes that at federal level in Russia local self-government is now underpinned by substantial constitutional guarantees (Article 12 and Articles 130-133 of the Federal Constitution) and is regarded as a tier of public authority in its own right;

14. Is pleased that, on joining the Council of Europe, the Russian Federation ratified the Charter quickly (in 1998) and without any reservations, thus proving its commitment to meeting its European undertakings in the field of local self-government;

15. Notes that the Russian courts refer to the text of the Charter in decisions concerning local authorities’ rights in Russia;

16. Is aware that the 1995 federal law on the general organising principles of local self-government in the Russian Federation (hereinafter “Federal Law No.154”) was intended gradually to lay the legal foundations for a system of local self-government based on the principles of the Federal Constitution;

17. Notes that to implement Federal Law No.154 several other pieces of legislation concerning local self-government have been enacted (in particular on the financial basis of local self-government in the Russian Federation, on the basis of municipal public service in the Russian Federation, and on Russian Federation citizens’ constitutional rights to vote and stand in elections to local self-government bodies) and that a large proportion of the powers of local self-government bodies is governed by the Civil Code of the Russian Federation, the Land Code of the Russian Federation, the Town Planning Code and the federal law on the basic guarantees of Russian Federation citizens’ electoral rights and right to vote in referendums;

18. Likewise notes with satisfaction that in the last ten years public administration at the local level has been performed by locally elected bodies politically accountable to the electorate;

19. Takes the view that the 1998 inception of the Congress of Local Authorities of the Russian Federation and its recognition by two presidential decrees (No.1281 of 22 1998 and No.1370 of 15 October 1999) as a national association of local authorities representing local-authority interests at federal level was an important step forward in the consolidation of local self-government in Russia ;

B. Difficulties encountered and inadequacies of the legislative framework

20. Observes at the same time that:

a. Federal Law No.154, although highly democratic, is occasionally somewhat imprecise as a framework and has not succeeded in setting out clearly and exhaustively the questions to be regarded as local matters or the extent of the powers for dealing with them, or in interconnecting those powers with those of state government bodies, resulting in obvious disparities between local self-government functions and available resources;

b. the procedure for delegating and performing a number of functions of state government services has not been clearly laid down either, making it more difficult for local authorities to perform their inherent functions and causing conflict with regional authorities;

c. the legislation was insufficiently precise with regard to procedure governing relations between local self-government bodies on the one hand and federal bodies, the community and economic agencies on the other;

d. no federal legislation has been enacted on assignment of powers and responsibilities to local self-government bodies, or on the manner of transfer of federal or regional property to municipalities, or on the rights and duties of local elected representatives, or on procedure for award of public-works contracts at the local level;

e. the economic and financial base of most local authorities in the Russian Federation is at present inadequate for performance of local self-government functions;

f. setting up local self-government bodies is encountering considerable difficulties in a number of the Constituent Entities;

g. there is a downward trend in local-authority expenditure in the general context of the economic transition and of social difficulties nationally;

h. local authorities’ functions are not in line with available resources;

21. Notes with satisfaction that these legal difficulties and the problems inherent in the national economic transition, together with the attendant widespread social difficulties, have prompted the federal authorities to begin a significant reform of the legal and institutional framework of local self-government with the main aims of clearer, more balanced, fairer apportionment of powers and responsibilities between the different levels of public authority and of matching them to available resources;

22. Notes that a further purpose of the reform is to begin reorganising the units of local government in the country so as to set up viable, well-functioning local authorities throughout the Federation;

C. Reform

23. Notes with satisfaction that the new version of the federal framework law on the general organising principles of local self-government in the Russian Federation, promulgated in October 2003 (hereinafter “the new framework law” or “Federal Law No.131”) seeks to solve the problems that prevent the local self-government system from functioning properly, develop the system and later bring it into line with the Constitution of the Russian Federation;

24. Particularly welcomes:

a. the new law’s recognition of the bodies in charge at the local level as public authorities, its affirmation of local self-government as one of the foundations of Russia’s constitutional system and its guarantee of local self-government throughout the Federation;

b. the new law’s guarantee, in Article 1.2, that in local self-government local matters are dealt with by the people direct or through elected bodies answerable to them;

c. the statement in Article 4.1 of the new law that part of the legal basis of local self-government in Russia is the international treaties to which the Russian Federation is party;

25. Notes with satisfaction that the new framework law contains a large number of important provisions which were either not present or differently worded in Federal Law No.154 and that they relate to:

a. the organising principles of local self-government (introducing three types of local authority : the commune [urban or rural] ; the municipal district; and the urban district;

b. regulation of local matters coming within local-authority statutes;

c. setting up local administration in the form of compulsory bodies;

d. the local-authority leader’s not being allowed simultaneously to hold mandates as president of the representative body and head of the local administrative services;

e. more detailed rules on the forms of popular participation in local self-government;

f. co-operation between authorities and the introduction, in each Constituent Entity, of a council of local authorities;

g. consulting the community on removal of a local elected representative, boundary alterations or changes to the local authority;

h. changes to the budget system and property arrangements;

26. Regards the new model as making it possible to:

a. deal with concrete local matters at the level which has the resources and the organisational and structural capability to handle them;

b. meet the twin objectives of optimum relations between the local authority and the community on the one hand and between the authority and central government on the other;

c. lay down precise principles and procedures for assignment of powers and for apportioning responsibilities between the different tiers of authority, and setting up machinery for supervision both by the community and the central authorities;

d. set out in detail the arrangements for delegation of central functions to local self-government;

e. avoid unfinanced “federal mandates”;

f. develop the concept of co-operation between local authorities, which was virtually non-existent in the 1995 law;

D. Recommendations to the federal authorities:

27. Maintains vigilance on a number of matters to do with progressive implementation of the new law, believes that the following observations warrant highlighting and calls on the federal authorities to pay close attention to them in implementing the framework law, taking care to do so in the spirit of the Charter:

a. financial resources (Article 9 of the Charter) and municipal property:

the reform could be jeopardised if the new local authorities ended up without the necessary resources proportionate to their functions. This is a major issue. Care needs taking that they have an adequate financial and material base of their own to perform properly. In particular that necessitates the announced amendments to the Tax Code and Budget Code, together with a new law on public property;

b. setting up the new local authorities and any changes to the statutes or boundaries of existing local authorities (Article 5 of the Charter):

the transition from urban communes [towns and cities] to « urban districts » (the gorodskoy okrug) is crucial to development of towns and cities in Russia and consequently to development of the country as a whole. It is therefore necessary to preserve urban municipalities that have a sound social and economic base and communities which clearly identify with their municipalities in order to obviate any unjustified changes in the status of a municipal authority;

c. delegation of state powers (Article 4.5 of the Charter):

this question is likewise important in that local authorities will be responsible for performing a number of functions delegated by central government. It has to be ascertained objectively whether local authorities have the capability to perform the functions transferred from the centre, and it is absolutely essential for transfer of functions to be accompanied by transfer of the necessary resources, as provided for in the federal law.

d. administrative supervision (Article 8 of the Charter):

i. administrative supervision of local-authority measures to ensure their lawfulness is to be performed by the Public Prosecutor or the courts. This is an important advance for local authorities;

ii. the procedure for supervision of local-authority measures, and for proceedings against or imposing penalties on elected local self-government bodies [the representative body, the leader of the municipality and the head of administration], is laid down in the new law. The local authorities have adequate safeguards through the courts, for challenging any decision concerning them. It will thus be for the judicial authorities to play their full part in the procedure;

iii. resort to proceedings against elected bodies must be had in exceptional cases only, in accordance with the legislation;

e. legal protection (Article 11 of the Charter):

i. on certain conditions and subject to certain formalities, local authorities can at present appeal to the Constitutional Court for protection of their rights;

ii. it is desirable to amend the federal constitutional law on the Constitutional Court of the Russian Federation so as to entitle local authorities to refer direct to the Constitutional Court any law or federal regulatory measure interfering with their rights;

f.
central government bodies responsible for local self-government:

calls on the federal authorities to create with the government of the Russian Federation a government body responsible for the design and implementation of government policy in the field of local self-government;

g. foreigners’ participation in local public life:

calls on the Russian authorities to sign and ratify the European Convention on the Participation of Foreigners in Public Life at Local Level (ETS No.144);

III. WITH REGARD TO REGIONAL SELF-GOVERNMENT, the Congress:

E. The general reform framework:

28. Notes that relations between the Federation and the Constituent Entities continue to be affected by difficulties arising from:

a. imprecisions as to application of the constitutional provisions on exercise of powers in areas of joint responsibility;

b. the problems with giving treaties and agreements between the Federation and the Constituent Entities proper prominence in the country’s institutional structure;

c. the discrepancies between the Constituent Entities’ functions and the available funding;

d. differences of development between the Constituent Entities;

e. the imprecision of federal supervision procedures;

29. Observes that reform of the federal system, on the basis of the Constitution, as given effect in the Federal Law of 4 July 2003 (hereinafter “Federal Law No. 95”), was primarily intended to:

a. give precise expression to the constitutional principles of Articles 71-73 in a general piece of legislation not only dealing with matters of local-government organisation in the Constituent Entities but also laying down the framework for exercise of powers in areas of joint responsibility, a matter which had often caused difficulties in relations between the Federation and the Constituent Entities;

b. reassert the principle of the rule of federal law;

c. ensure concordance between powers and finances;

d. improve arrangements for federal supervision;

30. Believes that the Commission chaired by Mr. Dmitri Kozak and the Russian legislature have made huge efforts to clarify and explain the constitutional provisions on relations between the Federation and the Constituent Entities, particularly as regards the apportionment of powers in areas of joint responsibility;

31. Observes that the new law also seems sufficiently flexible to deal with specific situations or handle crises (in particular by means of treaties) in a manner according with the Federal Constitution;

32. Regards this concern for clarity and precision as laudable and as helping to put an end to situations where regional legislation has flatly contradicted federal legislation;

33. Welcomes, in this connection, the work throughout the 2000-2003 period on bringing regional legislation into line with the Constitution and federal legislation;

F. Recommendations to the federal authorities:

34. Is keeping an eye on a number of matters relating to progressive implementation of the new law, considers the following points worth highlighting, and asks the federal authorities to pay particular attention to them in implementing the framework law:

a. The concept of sovereignty:

i. notes that, in its decision of 7 June 2000, the Constitutional Court said that only the Russian Federation had sovereignty and further notes that the Constituent Entities with which that decision and the Order of 27 June 2000 were concerned have removed from their constitutions the provisions cancelled by the Constitutional Court;

ii. draws attention to Resolution CG (11) 5, in which the Congress calls on the Constituent Entities to abide by that decision of the Constitutional Court;

b. treaties and agreements:

i. notes that between 1994 and 1998 42 treaties were signed with 46 of the Constituent Entities and that most of the regions have now abandoned the idea of a treaty with the Federation on apportionment of jurisdiction as their historical mission has been completed and all treaties must be confirmed during a two year period;

ii. regards the new treaty-conclusion procedure as reflecting the Federation’s concern to ensure observance of citizens’ fundamental rights and an unbroken legal area covering the entire Federation;

iii. notes that conclusion of jurisdiction-apportionment treaties is allowed only if required by a Constituent Entity’s particular economic, geographical or other features and those features require an apportionment of powers other than that laid down in federal law (and subject to the treaty’s being valid for 10 years only);

iv. regards this approach as helping take ample account of the Constituent Entities’ particular features and as averting a number of difficult situations so as to secure unity amid diversity of Russia’s regions;

c
. apportionment of powers:

i. takes the view that the provisions of the new law which tie apportionment of powers to responsibility for financing and to available funding are consistent with the connexity principle and reinforce regional authorities’ accountability to their electorates;

ii. will keep under the review the implementation of the new provisions, which will depend greatly on the Constituent Entities’ actual resources and on the arrangements which will have to be set up for financial equalisation between the Constituent Entities;

iii. notes that the law provides for such financial equalisation in principle and that equalisation will involve transfers from the federal-budget support fund to the Constituent Entities;

iv. will continue to pay particular attention to exercise of the Constituent Entities’ inherent powers and their powers in areas of joint responsibility under the new legislative framework;

d. federal supervision:

i. shares the federal authorities concern to ensure implementation of the Constitution, federal laws and judicial decisions throughout the Federation;
ii. believes in particular that full application of federal legislation must be ensured with regard to issues concerning human rights and minorities;

iii. believes that the surveillance procedures laid down in the new law give the regional authorities adequate guarantees, in particular involving applications to the courts;

iv. at the same time will maintain vigilance on the matter and trusts that the judicial authorities will fully play their part in the procedure laid down in the law;

v. points out that the procedure in Article 29.2-3 (removal from office) of the new law must be a last resort for dealing with a grave breach of federal law and that extensive interpretation of the provisions is to be avoided;

e. composition of the Federation Council:

encourages the Russian authorities to continue reflecting on the composition of the Federation Council with a view to improving its democratic representativeness and strengthening Federation Council members’ links with the regions;

f. Draft European convention on regional self-government:

invites the Russian authorities to give their backing to the draft European Charter of Regional Self-Government;

g. cross-border co-operation:

i. calls on the Russian authorities to continue promoting cross-border co-operation between Russian regions and communes and local authorities in neighbouring countries, particularly on the basis of Recommendation 125 (2003);
ii. invites the Russian authorities to sign and ratify Protocols Nos. 1 and 2 (ETS No. 159 and ETS no. 169) to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No.106).

G. Political dialogue with the Congress of the Council of Europe:

35. Invite relevant representatives of the Russian federal authorities to inform the Congress on the progress made with regard to the reform of local self-government and federalism in Russia at the next Institutional Session of the Congress.

1 Debated and adopted by the Congress on 26 May 2004, 2nd Sitting (see doc. CG (11) 5, draft recommendation presented by G. Rhodio (Italy, L, EPP/CD), and H. U. Stöckling (Switzerland, R, ILDG), Rapporteurs).

2 Alternate rapporteur for the Chamber of Regions.



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