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Does Russia follow the European Local Government Charter? Monitoring results
The European Charter of Local Self-Government was adopted in 1985 by the Congress of Local and Regional Authorities of the Council of Europe and is the most important multilateral document defining the fundamental principles of the functioning of local self-government. The Charter is an international treaty and therefore has priority over the national legislation of each of the states which have signed and ratified it. The Russian Federation has ratified the Charter in full, and according to the article 4 of the Constitution it is obligatory for execution. The Charter entered into force in Russia on September 1, 1998. Developed in early 2000, the Federal Law number 131 “On general principles of the organization of local self-government in the Russian Federation” included the basic provisions of the Charter. Amendments to the Federal Law-131 and especially the recent changes, as well as the law enforcement practice and the general legal nihilism make it difficult to implement the Charter provisions in Russia. Monitoring the implementation of the Charter is important not only in terms of Russia’s implementation of international commitments but also in order to give civil society and independent municipal deputies additional levers of influence on those who infringe the rights of the local self-government in our country.
The following methods were used in the study:
– Comparative analysis
– Survey in questionnaire form
The comparative analysis was carried out in relation to compliance of the legislation regulating questions of local self-government (federal legislation, laws of subjects of the RF, statutes of municipal entities) to the norms of the European Charter of Local Self-Governance. The study covered the laws of those subjects of the Russian Federation where the questionnaire was conducted at the level of municipalities.
The survey was conducted in the form of a questionnaire which was filled in by representatives of municipalities from six regions of Russia – Moscow and Moscow region, Kaluga, Kaliningrad, Pskov regions and the Republic of Dagestan. All six regions have their own distinctive characteristics related to the size of the territory, population density, level of urbanization, social policy, degree of economic development, etc.
Two regions – Kaliningrad region and the Republic of Dagestan stand out. Kaliningrad region is an exclave, has no common border with Russia, and is directly adjacent to the States of the European Union, and the Republic of Dagestan is a polyethnic subject of the Russian Federation which is home to several dozen nationalities, speaking different languages and having significant cultural and religious differences.
Among experts who filled in the questionnaires there were both experts in the field of LSG, and ordinary citizens who have received training at seminars of the Moscow School of Local Self-Government. In this connection, during the analysis of questionnaires the final conclusions were verified by the results of comparative analysis. In a number of cases, reservations have been made with regard to the responses to questionnaires to assess the extent to which, in experts’ view, the implementation of LSG fulfills the norms of the Charter but also the provisions of the Russian legislation.
Despite the lack of representativeness of the survey, it can be stated that in its main findings the study revealed a number of significant discrepancies both in legislation and in law enforcement practice of the Russian regions to a number of basic provisions of the Charter.
Relevance of the Russian national legal standards and law enforcement practice to the European Charter on Local Self-Governance
Results of the expert survey
The survey conducted in the fall of 2017 represents thirteen municipalities of the six Russian regions. Municipalities represented both rural and urban settlements (1+2), municipal districts (2), town districts (1) and the Moscow intracity municipal districts (6).
Apart from Moscow, which is also a subject of the Russian Federation, the answers to questionnaires were sent from Dagestan, Kaliningrad oblast, Kaluga oblast, Moscow oblast, Pskov oblast.
The aim of the survey is to compare munisipal legislation and practices in local self-governance in different regions and analyse their relevance to the norms of the European Charter of local self-government.
Two types of Charter norms were selected for those purposes:
2. The optional choice (article 4 – paragraphs 3, 5 and 6, article 6, paragraphs 1 and 2, article 7 – paragraphs 2 and 3, article 8, paragraphs 1 and 3, article 9, paragraphs 4, 5, 6, 7 and 8, article 10 – paragraphs 2 and 3)
There should be noted two conditions, which may affect the representativeness of the obtained survey results: A) low coverage regions (less than 10% of the total) and municipalities (less than 1% of the total number of municipalities in these regions) and B) the subjective approach of regional experts who have no assess to the official statistics on number of points.
However, the obtained results largely correspond to the assessment contained in other sources, for example, in the Report “On the condition of local government in the Russian Federation” (Moscow, Russian Academy of National Economy and State Service under the President of the Russian Federation) published this year.
Overall survey results
Generally, we can say that significant part of Charter norms are not fully executed or not executed at all in the most surveyed municipalities.
The implementation of the following list of mandatory choice norms raise the most serious questions: paragraph 1 of article 3, paragraphs 2 and 4 of article 4, article 5, paragraph 1 of article 7, paragraph 2 of article 8, paragraphs 1 and 2 of article 9.
Respondents point out the complete absence of law regulations of a significant portion of public affairs in 8% of cases, restricted right – in 25% of cases.
Herewith the general lack of professional staff called by 61% of respondents, while 23% marked the lack of qualified staff in representative bodies of LSG. The lack of qualified personnel hampers the implementation of the Charter norm on the ABILITY of LSG structures to manage public Affairs.
Consequently the key terms of LSG activities – the RIGHT and ABILITY to regulate public Affairs and manage them – are not provided in the most cases.
In the narrow sector, where such a right is provided, and the ability is present in more than half of the cases the regulation is not handling by local Councils but by local authorities or state authorities.
The paragraph 2 of article 3 of the Charter namely the “right to regulate public Affairs” carried out mainly elected by the population Council’ is fully implemented only in 8% of cases.
Here it is necessary to mention that in general the situation in Russia looks somewhat different and the share of municipalities where most of the public affairs are regulated by the local Council is much higher and can range from 20% to 30%. However, these figures are not encouraging.
In all municipalities participating in the survey of local councils are elected by free, secret, direct ballot and equal universal suffrage.
However, many constituent entities of the Russian Federation adopted a scheme when district councils are not elected by the population, but formed from a number of elected deputies in their urban or rural settlements.
This arrangement allowed by legislation while the formation of councils of urban districts with intracity division.
In such cases, paragraph 2 of article 3 of the Charter is violated. This paragraph defines the only version of the Council legitimation its election through the free, secret, equal, direct and universal suffrage.
Evaluated implementation of the paragraphs 2 and 4 of the article 4 of the Charter indicates a low degree of autonomy of LSG bodies in the management of public Affairs.
Regarding the ability of LSG structures to assume powers of management of public Affairs, it is not prescribed by law directly, but experts have recorded a proportion of about 3:1, where “1” is the proportion of municipalities with the opportunity to expand the volume of their powers and responsibility.
In fact, in this case, most likely, we are not dealing with real but desired state of things.
In accordance with the Federal Law №131-FZ “On General principles of organization of local self-governance in the Russian Federation” and the Budget Сode of the Russian Federation, local governments may expend local budget funds only on those issues which are directly specified in the law.
LSG structures do not have sufficient degree of autonomy within its terms of reference. Only 16% of the surveyed municipalities assessed by experts as “fully independent”.
Decisions depend on other authorities in 84% of the municipalities in more or less extent, and the authorities of other (superior) municipalities or the region resolve the most issues in 69% of cases.
In General the conditions for the municipal deputies activities do not exist wholly or partially in 77% of the municipalities.
At that the worst situation is in the municipal districts of the city of Moscow, rural settlements and municipal districts.
Here in 67% of cases these conditions do not exist at all. The opposite is true among the urban settlements, where 75% of municipalities provide deputies with all necessary conditions for a work.
In fairness it should be noted that the number of urban settlements (including the urban districts) does not exceed 10% of the total number of municipalities in Russia.
The situation with the administrative control is contradictory. Approximately equal proportions of experts evaluated the extremes – the absence of administrative intervention at all (39%) and the necessity of a constantly report to the public authorities (38%).
At that the worst situation at the level of municipal districts rural settlements and municipal districts of Moscow again.
The norm of the Charter allowing for the control of expediency in respect of only delegated by the state authorities powers is the observed in 23% of municipalities.
In terms of financial empowerment of local authorities, the experts paint a very pessimistic picture.
So only 7% of respondents say about fair and equitable sharing of national and regional budget resources regarding municipal funds.
93% believe that transfers comprise a smaller part of what would remain after the fair distribution.
Less than half manage their existing funds independently and freely, and 54% are required to coordinate most of their costs with other authorities.
The majority of municipalities (76%) have insufficient financial resources, half of them has no money even for essentials. Only 16% said financial resources are fully commensurate with the responsibilities.
Against this background one of municipal districts of Moscow looks exotically with recorded finance more than needed.
Concerning the implementation of paragraph 3 of article 9 of the Charter identified 15% of the municipalities (municipal districts of city of Moscow) whose budgets are generally not forthcoming local taxes and fees. If it’s true, we can talk about gross violation of the budget and tax legislation that established mandatory enrollment in local budgets of tax revenues.
In principle, one could restrict the analysis of the responses to survey questions according to the norms of the Charter, referred to the group of obligatory choice. However, the Russian Federation is among the few countries which ratified the Charter in the full. Therefore, the study shall be subject to all the paragraphs of the Charter, regardless of whether Russia is a real opportunity to fulfill all of them at the time of ratification and in the future.
Serious questions raised by the execution of following list of optional choice from the Charter – paragraphs 3, 5 and 6 of the article 4, the article 6, the paragraph 2 of the article 7, paragraph 3 of the article 8, paragraphs 4, 6, and 7 of the article 9 and the article 10.
The article 4, paragraphs 3, 5,6
The transfer of powers from the level of urban and rural in villages on the level of municipal districts is a very worrying trend. In some cases the powers are withdrawn from the municipalities and transferred to the state authorities. It is directly contrary to the requirement of the Charter entrusting public authority, local authorities closest to citizens.
Such transfers are quite extensive regardless the volume and nature of the specific task requirements of efficiency and economy.
Requirements of public authorities in the sphere of execution of delegated state powers becomes stricter that reduces the possibility of flexible response to changing conditions on the ground.
There is no system of consultation of public authorities with the local authorities in the planning and decision-making directly relating to local government practically.
In 87% of cases consultations have both lacking and perfunctory character.
The article 6
The experts point out the definition of internal administrative structures of LSG bodies in practice is carried out mainly according to the subjects of the Russian Federation rules and under the control of state authorities.
Professional qualities of local administrations staff are considered extremely rare, despite the presence of statutory requirements for municipal employees and the mandatory periodic certification. Mainly recruitment is based on personal loyalty to the head of municipality (84% of answers).
The article 7, paragraph 2
The wage for local deputies is provided in the lower part of the municipalities. There is no compensation for loss of earnings and lost profits anywhere.
The article 8, paragraph 3
The principle of proportionality to the degree of administrative control of the importance of the interests that it intends to protect has no reflection neither in law nor in practice of the public authorities activities. The experts have called existing controls excessive designed to exert pressure on local authorities in 58% of the responses to the questionnaire.
The article 9, Paragraphs 4, 6, and 7
The experts note a lack of diversity and flexibility of local financial systems in 43% of cases, calling systems strictly regulated, not subject to adjustment due to the emerging external changes.
Selectivity and subjectivity in implementation procedures for fiscal capacities equalization was marked in 52% of responses 32% of respondents say that such procedures do not exist.
In this case, most likely, we are dealing with expert ignorance about such procedures, while the Budget Code of the Russian Federation provides them in mandatory order. This assumption is confirmed by the fact that 86% of respondents cited lack of mainstreaming of the LSG structures during procedures of equalization.
Despite Federal law that enshrines the right of LSG for the Association establishment, 100% of the answers indicate that the current Regional councils of municipal formations and the Congress of municipal formations of the Russian Federation do not play a significant role in the activities of local authorities.
In 1998 the Russian Federation with the ratification of the Charter has made commitments which was not able to perform in a number of circumstances, including economic, social, cultural etc.
Many of these objective circumstances have not been overcome and continue to exert its negative impact on the execution of a number of norms of the European Charter of LSG by Russia.
However, recent years there has been a number of trends of subjective nature associated with the deterioration of Russia’s relations with leading democratic countries of the West. In these conditions there are voices to drop some Russia’s international obligations, including ECLSG. There were some attempts to revise norms of the Russian Constitution defining the priority of international law over national legislation.
Inability or unwillingness of state authorities to follow their international obligations often transform into concept of “particular way”, the “sovereign democracy”, “the historical roots”, etc. Unfortunately, the first victim in this battle with a known sad end becomes a local self-government.
Under the circumstances determining diagnosis and methods of treatment we should follow medical rule noli nocere.That’s why we shouldn’t rely on this study as some kind of dogma.
Obviously, the problem needs more comprehensive investigation, with the involvement of an array of data reflecting a more accurate picture as in the local government sector and in the sphere of public authorities, primarily at the regional level, which today are transferred unprecedented powers to the legislative regulation of issues of organization and activities of local government.