This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.
During the consultation procedure the rapporteurs were informed by the representatives of the Republic of Tatarstan that the majority of the heads of municipalities are elected among members of municipal council (in Russia – 8 896 heads, 41.0%), or elected directly by universal, equal and direct election (in Russia – 6 718 heads, 30.9%). In the Republic of Tatarstan, for example, all 43 heads of municipal districts and two city mayors are elected among members of respected municipal councils. The rapporteurs observe that Law No. 8-FZ of 3 February 2015 has established a new model for the “election of the head of a municipality”: the status of the mayor can be acquired now by a person selected by a selection board originally established to fill another position, the head of a local administration. Thus, the head of a municipality is not subject to the procedure of election by the population or by the municipal council. Furthermore, the share of the selection board members appointed by the governor has increased to 50% and the governor also has the right to present candidatures for the position of mayor. So, the heads of municipalities are in fact appointed at the governor’s initiative and instruction.
The rapporteurs conclude that Article 3, paragraph 2, of the Charter is not respected.
On the basis of their exchange of views with various interlocutors the rapporteurs received information that direct elections have become the exception rather than the rule: local governments are prescribed to renounce direct elections (heads of municipalities are elected from among the councillors or – more often – appointed, following a contest). Only four federated entities provide for the opportunity to determine independently the structure and organisation of local governments. Among 80 regional capital cities, only eight of them have retained direct election of mayors (while the number of the heads selected through a contest has reached almost 50%). Besides, the regions very often abolish direct elections for the local government representative bodies at the level of municipal raions and town districts, which have intercity municipal formations (this refers to three city districts), replacing them by delegation.
Recently, in March 2019, the State Duma planned to examine the draft federal law No. 631751-7 “On Amendments to the Federal Law ‘On General Principles of Organisation of Local Self-Government in the Russian Federation’ (especially the Part referring to Issues of Territorial Organisation of Local Self-Government)”. According to criticism from the Yabloko party, the “election of mayors of cities and heads of districts has removed almost everywhere. The bill gives the right to the Russian regions (and, virtually, the governors) to liquidate local self-governments in cities and rural settlements by giving municipal districts the status of a municipal territory, which does not envisage having a local self-government in cities and rural settlements that used to be part of the municipal district”. These provisions of the draft law would “directly contradict the Constitution of the Russian Federation, according to which local self-government is guaranteed in the Russian Federation and is carried out in urban and rural settlements and other territories through elected bodies of local self-government”.
According to recent information provided by the Russian National Delegation to the rapporteurs after the second visit, amendments to the legislation regarding the direct mayoral elections in the Russian Federation were about to take place. Voters may now choose in which way the mayor should be elected. As was explained by the members of the delegation, in accordance with the law, there are four different definitions of a mayor.
1. A mayor who is elected from among the members of the representative body/municipal council. About 20% of mayors throughout the Russian Federation are elected this way.
2. A mayor who is elected through a direct election. In this case the mayor can be a head of either a representative or of executive power.
3. There is the provision for a mayor to combine the functions of a head of both the representative and executive powers. This is mostly practised in small rural constituencies (with small populations).
4. The last option is currently being explored as an experiment in 2 to 3% of municipalities – election of a mayor by conducting a tender. For the selection of the mayor, a special committee is created, set up by deputies.
The choice of one of these four options is to be made by the voters. They are informed about it through public hearings, mass media and other ways of increasing of public awareness. After the public consultation, the judicial bodies register the method of mayoral election chosen by the population.
However, during the consultation procedure, the State Duma informed the rapporteurs that the draft law to which the National delegation referred to, will not be considered by the State Duma, notably because, in its opinion, “it does not comply with the institutional principles of the Russian legislation”.
Under the Federal Political Parties Act, a political party is freely established without the permission of State authorities or officials. A political party may be established at the constituent congress of a political party (Article 11). Federal Law No. 28-FZ of 2 April 2012 “On Amending the Federal Law ‘On Political Parties’” reduced the required minimum number of political party members from 50 000 to 500 people. A member of a political party may be a member of only one regional branch of a given political party – at the place of permanent or primary residence. The charter of a political party may establish requirements for the minimum number of members of a political party in its regional branches (Article 3, paragraph 2, and Article 23, paragraph 6, of the federal act on political parties).
A political party (Article 3.2 of the federal law “On Political Parties”) must have regional branches in at least half of the constituent entities of the Russian Federation. The governing and other bodies of a political party, its regional branches and other structural subdivisions must be located in the territory of the Russian Federation. In 2012 the requirements with regard to the number of political parties were eased which resulted in the registration of 60 new parties. In reality, many parties operate in a few regions, although they have a federal status. Quite a few of them have been abolished by court decisions, because the number of their regional branches had dropped below the minimum.
Article 2, paragraph 25, of Federal Act No. 67 of 12 June 2002 on basic guarantees of electoral rights and the right to participate in referendums for citizens of the Russian Federation (hereinafter – Federal Law No. 67-FZ) provides for participation in local elections as electoral associations not only of political parties and their structural subdivisions but also of other public associations, established in the form of public associations and public movements and registered in accordance with the established procedure (including regional and local), whose charters provide for their participation in elections.
Recommendation 297 (2010) of the Congress had pointed out difficulties faced by new parties for registering at local and regional level and it asked the Russian authorities to prevent the use of closed lists in local and regional elections, while it also suggested measures to ensure that independent candidates may stand in these elections everywhere. During the first part of the monitoring visit in 2018, some local independent experts criticised legal provisions prohibiting regional and local parties since only federal parties having their branches in more than half of the regions can participate in local elections.
At the same time, however, the right to run for local elective office has been attributed to public organisations (associations and movements).
In fact, “closed lists” (party lists) are used in many European countries, but rather in national (parliamentary) elections. According to information provided by the Federation Council, the open-list system, in which voters were given the opportunity not only to vote for a list but also to express preference for one or more candidates from the selected list, was practised during the election of deputies to legislative (representative) bodies in the 1990s and 2000s in some constituent entities of the Russian Federation (Kaluga and Tver regions, Chukchi Autonomous Okrug). However, it was not widespread due to the difficulties in organising and conducting voting. Open lists were used only in four regions in the 2003 and 2005 elections, following which they were abolished by law in all regions where they were allowed. Open lists were allowed in four regions in the 2010 local elections if local authorities wished to have them. But in recent years, they have been abolished in the Republics of Saha (Yakutia), Tuva and Ulyanovsk Oblast. For a short period of time, open lists were provided for by the law of Tver Oblast, but they were also later abolished. In 2013, the Constitutional Court of the Russian Federation ruled that the system of closed lists did not violate the constitution nor was it at odds with European standards.
At present, open lists are still available in only one region – the Samara Oblast. But no municipality has made use of such an alternative.
The proportional electoral system has become widespread at the regional and local levels, mainly as a part of the mixed electoral system (providing for the election of one part of the deputies from the lists of candidates in proportion to the votes cast for these lists, the other part – from single-mandate or multi-mandate constituencies). According to Federal Law No. 67-FZ/2002, the adoption of a proportional electoral system for the election of all members or for parts of the legislative (representative) bodies of the constituent entities of the Russian Federation or of local self-government assemblies was left to the discretion of the constituent entities.
In accordance with Article 35.19 of Federal Law No. 67-FZ/2002, elections to the assemblies of rural and urban settlements (excluding urban districts) with a population of less than 3 000, as well as to assemblies of rural and urban settlements (including the representative bodies of urban districts) with a population of less than 15 000 shall be held only in single-mandate and/or multi-mandate constituencies. In these elections there is no provision for applying a proportional electoral system, in which, following the election results, the deputy mandates are distributed between the lists of candidates nominated by political parties and other electoral associations. Thus, this legal provision prohibits the nomination of candidates by means of lists of candidates from any political party or electoral association, including the application of “closed lists” in these elections. According to the Federation Council, a steady trend that emerged in 2011 and 2012 and intensified after the adoption of the federal law of 2 November 2013, No. 303-FZ “On Amending Certain Legislative Acts of the Russian Federation”, is the reduction in the use of both a purely proportional and mixed electoral system in municipal elections and its replacement by a majority electoral system with single- and/or multi-member electoral districts.
Concerning the legal right for independent candidates to stand in local or regional elections, it should be noted that Russian citizens may be nominated directly (a candidate in a single-mandate or multi-mandate constituency) or as part of a list of candidates (in a single constituency). The direct nomination of candidates may be done through self-nomination or through nomination by an electoral association. Candidates may be nominated as part of a candidate list by a political party entitled under federal law to participate in elections or by its regional branch or other structural subdivision entitled under federal law to participate in elections at the appropriate level (Article 32, paragraphs 1, 2 and 3, of Federal Law No. 67-FZ). Federal Law No. 67-FZ provides for the possibility of independent candidates participating in elections at both regional and local levels by self-nominating. An exception is the election to the “highest offices” (heads of the highest executive bodies) of the State in the constituent entities of the Russian Federation. In these cases, the possibility of candidature by self-nomination in accordance with paragraph 2 of Article 32 of Federal Law No. 67-FZ is left to the discretion of the constituent entities of the Russian Federation. But following a return to direct elections of the governors in 2012, regional laws did not envisage independent candidates, and this is true for most regions. Independent candidates are not provided for in the regional elections held on a proportional basis.
According to the view of some critics, there have been obvious efforts to exclude independent candidates from the elections. Two instruments have been used for this end:
–A mechanism aimed at excluding independent candidates from the elections by sorting out the fake signatures from among the electorate or removing candidates because of faulty documents (for example, an attempt to remove Konovalov, a candidate running for a position of governor in Khakasia, by the Procurator’s Office on the pretext that there was a mistake in the name of the Communist Party branch which put forward his candidature for the election).
–The absence of any opportunity for an independent candidate to carry out an advertisement campaign: even if a candidate could afford to pay the high prices for publishing promotional material, the mass media would deny him the right to do so: tough measures rule out advertising in the streets and on houses, and billboard advertisements are torn off by special groups whose organisers and sponsors cannot be identified. Street rallies and meetings with the electorate are also banned.
There were also complaints, coming both from experts and representatives of opposition parties and independent deputies, that several kinds of resources available to the administration are used for the benefit of incumbent politicians who are standing as candidates. Concerning fairness and transparency of election campaigns, according to information provided by the Accounts Chamber of the Russian Federation, Federal Act No. 67 of 12 June 2002 on basic guarantees of electoral rights and the right to participate in referendums for citizens of the Russian Federation (Article 24, paragraph 10,
sub-paragraph “e”), provides that the election commissions of municipal entities are vested with the authority to take measures in the territory of the municipal entity to finance the preparation and holding of local government elections and local referendums. They can also take appropriate measures for the distribution of funds allocated from the local budget and (or) the budget of the constituent entity of the Russian Federation, the financial support for the preparation and holding of local government elections, local referendums, as well as monitoring the use of those funds for their intended purpose. In addition, Federal Law No. 6-FZ (Article 9) entrusts the accounting authorities of the constituent entities of the Russian Federation and municipal entities with the authority to monitor the implementation of the budgets of the constituent entities of the Russian Federation and municipal entities, the legality, efficiency (effectiveness and economy) of the use of the funds of these budgets, as well as the funds received from other sources provided for by the legislation of the Russian Federation, and control over compliance with the established procedure for managing and disposing of State (municipal) property.
One of the suggestions included in Recommendation 297 (2010) was the ratification of the additional protocol on the right to participate. The Federation Council commented that the protocol “does not have a new, broader legal content than the current legislation of the Russian Federation regulating legal relations related to the implementation of local self-government in the Russian Federation”. The legal norms available in Federal Law No. 131-FZ regulate the relations on the realisation of the right to participate in the affairs of local authorities. Thirteen articles of the federal act (Articles 22-33 and 251) set out a wide range of “participatory procedures” – specific forms of direct citizens’ involvement and forms of participation (local referendums, public hearings, citizens’ gatherings, citizens’ meetings, citizen surveys, citizens’ law-making initiatives, territorial public self-government, etc.). Article 33 of Federal Law No. 131-FZ provides that citizens have the right to participate in the affairs of local self-government in any form that does not contradict the Constitution of the Russian Federation, the federal laws and the laws of the subjects of the Russian Federation.
According to information provided by the Federation Council, public hearings and public discussions can be initiated by both local authorities and the population, and they are held with the participation of residents to discuss drafts of municipal legal acts. An important feature is that drafts of some acts of the municipal entity, such as those governing its charter and local budget, have to be submitted to public hearings. A citizens’ meeting may be held to discuss issues of local importance, to inform the public about the activities of local self-government bodies and to implement territorial public self-government. At the meeting it may be decided to apply to the local self-government bodies, and persons authorised to represent the meeting of citizens in relations with local authorities may be elected.
An important form of direct citizens’ participation is the local referendum (Article 3, paragraph 2, of the Charter). Citizens, election associations, public associations or the representative body of a municipal formation can initiate a referendum. The most important issues related to the organisation of local government, such as early termination or extension of the term of office of local government bodies, early elections to local government bodies, adoption or amendment of the local budget and fulfilment of financial obligations of the municipality, can be the issues of such a referendum. Decisions taken in a referendum are mandatory throughout the entire territory of a municipal entity. Laws of several constituent entities include detailed provisions on local referendums. For instance, in Leningrad oblast, the law of 9 June 2007 “On local referendums in Leningrad oblast” was adopted, which establishes the procedure for preparation and holding of local referendums in municipalities. In addition, Regional Law No. 44-oz of 8 May 2009 “On the referendum of the Leningrad Region” defines the procedure for the preparation and conduct of the regional referendum at the level of the Leningrad Region. During the consultation procedure the representatives of the Leningrad region highlighted that in the Leningrad Region referenda on local issues are regularly held. For example, in September 2016 there were 3 referenda in Lomonosov Municipal District and in Tosno Municipal District. However remain cautious about the extent of the practical relevance such forms of citizens’ participation have in reality, taking into consideration the experience of Moscow, where the ability to hold a referendum was barely exploited.
During the consultation procedure, again the rapporteurs were also informed that in Leningrad Region over the past five years, special attention has been paid to the development of local self-government in such forms as village elders, public committees, initiative commissions (since 2018). Village elders contribute to communication between municipal administration and people. It is especially useful in remote areas where the communication infrastructure is not well developed. Local initiatives from village elders are supported through regional, municipal budgets.
Laws of constituent entities of the Russian Federation and normative legal acts of local self-government bodies may create new forms of citizens’ participation as long as they comply with the existing federal or regional laws. For example, participatory budgeting and the institution of elders first emerged through popular initiative and were supported by deputies of the representative bodies of municipal entities. Nevertheless, representatives of the Federation Council argued, as already mentioned, that the existing level of citizens’ participation would not need the backing of the additional protocol.
The rapporteurs would like to express their satisfaction at several positive changes that have been introduced, following Recommendation 297 (2010). For instance, minimum numbers of members for the registration of parties was drastically reduced, registration of candidates supported by associations and groups is allowed and the direct election of governors was reintroduced. The introduction of single-mandate constituencies in municipalities for the election of deputies could also promote accountability of representatives. Closed lists deprive voters of the opportunity to take advantage of preferential voting but they do not directly violate the provisions of the Charter. In fact, the free election of assembly members provided by Article 3, paragraph 2, of the Charter does not necessarily include a right for voters to carry out preferential voting. On the contrary, legal requirements for candidates to gather a considerable number of signatures supporting their candidature and, even more so, the municipal “filter” for candidatures at the level of constituent entities (federal subjects) pose serious obstacles to election freedoms and should be abolished. Methods of citizens’ participation that have been introduced constitute positive developments, even though it seems that instruments like local referendums are formally provided for but barely implemented.
As regard the “municipal filter”, the Ministry of Justice of the Russian Federation stressed during the consultation procedure that “the presence of a “municipal filter” stimulates political competition at the local level, forcing political forces to work with local problems and nominate political leaders from their midst who are ready to take responsibility for solving the problems of local communities and cooperate with higher authorities. Thanks to the “municipal filter”, local self-government becomes a “school of democracy” and the elected head of the subject of the Russian Federation is forced to take municipal interests into account in its activities.”
The rapporteurs do not share this opinion and in view of the aforementioned facts, the rapporteurs’ opinion is that the Russian Federation partly complies with Article 3, paragraph 2, of the Charter and should therefore abolish the provision for considerable numbers of signatures as a precondition for registration of candidatures, as well as the “municipal filter” for candidatures at the level of constituent entities. Finally, it should also be stressed that the fact that the several participatory instruments have formally been introduced is a strong argument for the ratification of the additional protocol by the Russian Federation.
. In Ruling No. 324-O of 6 March 2013, “At the request of a group of State Duma deputies to verify the constitutionality of the provisions of Parts 1 and 2 of Article 89 of the Federal Law ‘On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation’”, the Constitutional Court of the Russian Federation noted that in elections held under the rules of the proportional electoral system of closed lists, citizens, while exercising their active right to vote, do not vote for specific candidates but for the entire list and, essentially, votes are cast for the respective political party, its political performance and its election programme. Thus, the court confirmed the right to establish a proportional system with closed lists. The same ruling noted that the position adopted by the European Commission for Democracy through Law (Venice Commission) on the legal regulation of the activities of political parties (Venice, 15-16 October 2010) also states that the nomination of a person as a candidate of a political party is an expression of his or her personal right to be elected (paragraph 126); in electoral systems using closed lists, parties may determine the order of their candidates on the electoral lists, but parties should be prohibited from changing the order of candidates on the electoral lists after the beginning of voting (paragraph 129).