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Strasbourg, 17 March 2003
Opinion no.
231/2003
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CDL-AD (2003) 2
Or. eng.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion
on
the draft constitution
of
the chechen republic
adopted by the Venice
Commission
at its 54th Plenary
Meeting
(Venice, 14-15 March 2003)
on the basis of comments by
Mr J. JOWELL
(Member, United Kingdom)
Mr G. MALINVERNI
(Member, Switzerland)
Mr J.-C. SCHOLSEM
(Member, Belgium)
Mr G. NOLTE
(Substitute Member, Germany)
Mr F. MERLONI
(Expert, CLRAE)
Mr M. LESAGE
(Expert, CLRAE)
Mr A. CAMPBELL
(Expert, United Kingdom)
Mr G. MARCOU
(Expert, France)
I. INTRODUCTION
1.
By letter dated 17 January 2003 the President of the
Parliamentary Assembly, Mr Peter Schieder, asked the Venice Commission to draw
up an opinion on the draft Constitution of the Chechen Republic which will be
submitted to referendum on 23 March 2003.
The present opinion is based on contributions by the Commission’s rapporteurs,
Messrs Jowell (United Kingdom), Malinverni (Switzerland), Nolte (Germany) and
Scholsem (Belgium), as well as on a contribution by Messrs Merloni (Italy) and
Lesage (France) on behalf of the Congress of Local and Regional Authorities of
Europe, and contributions by two experts of the Council of Europe’s Directorate
General of Legal Affairs, Mr Campbell (United Kingdom) and Mr Marcou (France).
It was adopted by the Commission at its 54th Plenary Session in
Venice on 14 to 15 March 2003.
2.
Having regard to the
present situation in the Chechen Republic the Commission would like to
underline that it has been called upon to comment the text of the draft
Constitution submitted to referendum. Its task is not to determine whether the
conditions in Chechnya permit the holding of a referendum at the present moment
or whether it is opportune to hold such a referendum at the present stage. This
is for the political organs of the Council of Europe, in particular the
Parliamentary Assembly, to assess and, while the quality of the text of the
Constitution is one element relevant in this respect, it is by no means the
only one.
3. The Commission does,
however, consider it appropriate to assess the text by the standards of
European democracy in the context of the specific conflict situation in the
Chechen Republic. Such an assessment requires
a sensitive appreciation of the need to restore legality to the Chechen
Republic by establishing institutions which are in line with the constitution
of the Russian Federation yet which also allow sufficient opportunity for the
expression of the specific
aspirations of the Chechen Republic.
II. MAJOR
ISSUES
1. The
specific place of the Chechen Republic within the Russian Federation
4.
It is not surprising that the text of the draft Constitution
unambiguously reaffirms that the Chechen Republic is a part of the Russian
Federation. The Preamble refers to the historical unity of the Republic with
Russia and Article 1.2 states that the territory of the Chechen Republic shall
be an inalienable part of the territory of the Russian Federation. The fact that
Article 1.1 uses the term “sovereignty of the Chechen Republic” is no argument
to the contrary. While the term sovereignty is in principle inappropriate for a
federated entity and has indeed been declared unconstitutional by the
Constitutional Court of the Russian Federation with respect to constitutions of
other subjects of the Federation, it is clearly used not in the usual sense of
sovereignty but as a synonym of “competence” or “power”. Ultimately it will be
for the Constitutional Court of the Russian Federation to decide whether the
use of the term “sovereignty” is permissible in this context.
5.
When reading the text of the draft Constitution in parallel
with the Federal Constitution, it is apparent that, as is the practice in other
subjects of the Russian Federation, the draft closely follows the model of the
Federal Constitution. Not only is the structure very much the same but large
parts of the text are directly copied from the Federal Constitution, in
particular but not only in the area of human rights. This already seems to
indicate that the purpose of the draft is to underline the future of the
Republic as a part of the Russian Federation like any other without any
specific status. There are many other links with the Federal Constitution. The
need to respect Federal law is mentioned repeatedly and emphatically. Moreover,
many provisions taken from the Constitution of the Russian Federation do not
have, from a legal point of view, their proper place in the draft since it is
up to the Federal and not to the Republican Constitutions to define the powers
of federal organs and bodies.
6.
This gives the impression of a standard text which could be
used for any subject of the Federation and not a text tailored to the specific
needs of a conflict situation. The need to respect federal law is a fundamental
principle in any federal system and it is legitimate to insist on its full
application. The constant reiteration of this principle may be regarded as a
reaction to the conflict.
By contrast positive incentives designed to win over the sceptical or hostile
parts of the population seem to be largely lacking. What could be cited is the
use of the word “sovereignty” in Article 1 and a reference to “generally
recognised customs and traditions in the Chechen Republic” in Article 35.4.
This does not seem sufficient having regard to an exceptional situation. As
will be set out below, under the Russian Constitution it would seem possible to
do more in this respect (see e.g. the situation in Dagestan) although the drafters
had to respect the principle of the equal rights of the subjects of the Russian
Federation set forth in Article 5.4 of the Federal Constitution.
7.
It should also be noted that the draft avoids any reference to
the Chechen people as the titular nationality. The Preamble refers to the “multinational people of the Chechen
Republic” in the same way as the Federal Constitution refers to the
“multinational people of the Russian Federation”. It is certainly welcome that
in this way there is no basis for any discrimination on ethnic grounds.
Nevertheless a reference to the Chechen people or the term “people of the
Chechen Republic” might have facilitated the identification of the Chechen
people with the Republic. The multinational character of the Republic could be
underlined in a separate phrase as is done in other Republics.
8.
Russian Federal law does not provide for the possibility of a
separate citizenship of the Republics. The term “citizens of the Chechen
Republic” used throughout the text could therefore be regarded as contradicting
Federal law. It should however be noted that the term is defined in Article
29.1 as “citizens of the Russian Federation who live in the Chechen Republic”.
The contradiction is therefore more apparent than real.
2. The
jurisdiction of the Chechen Republic
9.
In a federal state the Constitution of the Federation and not
of the federated entities is the text determining the jurisdiction of the
various levels. Article 73 of the Constitution of the Russian Federation is
quite clear in setting out the general principle: “Outside the jurisdiction of
the Russian Federation and powers of the Russian Federation on matters of joint
jurisdiction of the Russian Federation and the subjects of the Russian
Federation, all powers of state authority shall be exercised by the subjects of
the Russian Federation”.
10.
The respective provisions in the constitutions of federated
entities therefore have more symbolic than real meaning. The provisions in the
draft generally correspond to the respective provisions of the Federal
Constitution. Article 60 on joint jurisdiction corresponds exactly to Article
72 of the Federal Constitution and the second subsection of Article 1 sets out
that the Republic has jurisdiction
“outside the limits of jurisdiction of the Russian Federation and its authority
on matters under joint jurisdiction of the Russian Federation and the Chechen
Republic”. By contrast, Article 61 setting forth the jurisdiction of the
Chechen Republic seems to be worded in an unsatisfactory way. It lists a number
of powers of the Republic without making it explicit that this cannot be,
having regard to Article 73 of the Federal Constitution, an exhaustive list but
constitutes only a list of examples. Many of the powers actually mentioned are
purely organisational. There is no mention of powers which, in federal states,
tend to belong to the level of the federated entities such as education and
culture. This omission in the text of the draft Constitution is particularly
regrettable since an explicit articulation of the autonomy of the Republic in
these areas could contribute to the acceptance of the legitimacy of the
Republican institutions Under Article 72.1.f of the Federal Constitution general
matters of upbringing, education, science, culture, physical culture and sports
are within the joint jurisdiction of the Federation and the subjects of the
Federation. This should leave sufficient scope for powers of the Republic in
this area which could be further clarified by means of a treaty in accordance
with Article 11 of the Federal Constitution.
11. A specific feature of the Russian constitutional system is the
possibility of supplementing the legal and constitutional arrangements by means
of treaties or agreements between the Federation and the subjects. Article 11
of the Federal Constitution mentions this possibility and the “Federal Law on the principles and procedure for
the division of the matters of competences and authority between the bodies of
state power of the Russian Federation and the bodies of state power of the
Russian Federation subjects” regulates such agreements. This provides an
opening towards a differentiated form of federalism such as is particularly
attractive in conflict situations. The explicit reference to such agreements in
Article 58 of the draft is therefore welcome and, once constitutional bodies
have been established in the Republic, this possibility should be used.
3.
The state language
13.
It is therefore striking that the draft does not give an equal
status to the Chechen language. While Article 10.1 declares both Chechen and
Russian state languages, Article 10.2 makes Russian “the language of official
office work in the Chechen Republic”.
The practical importance of Chechen as a State language is thereby greatly
reduced and the draft falls far short of the possibilities offered by the
Federal Constitution. This seems all the more regrettable since Chechnya is
relatively ethnically homogeneous compared to other Republics. Furthermore, it
should be borne in mind that the Russian Federation has signed the European
Charter for Regional or Minority Languages and is preparing its ratification;
it is therefore under an obligation not to adopt any measures that would run
counter to the purpose of that convention.
The current text of Article 10.2 of the draft constitution would appear
to make it difficult for the Russian Federation to apply much of Article 10 of
the Charter ("Administrative authorities and public services") in
relation to the Chechen Republic.
4.
Human rights
14.
As is usual in democratic federal states the Constitution of
the Russian Federation contains a comprehensive catalogue of fundamental
rights, thereby leaving little room for regulation by the subjects of the
Federation. The draft explicitly opts in Article 3 for the incorporation of the
respective provisions of the Federal Constitution into its text and
correspondingly Articles 14 et seq. are a generally faithful copy of the
respective provisions of the Federal Constitution. From the legal point of view
this approach does not make much sense and it may lead to difficulties,
especially in the case of amendments to the Federal Constitution. Nevertheless
it does not do much harm and may be justified as a symbolic reaffirmation of
the commitment of the Republic to these values.
15.
As a consequence the weaknesses of the respective text in the
Federal Constitution apply also to the present text.
The articles guaranteeing fundamental freedoms such as Articles 20, 25, 26, 27
or 28 set forth these freedoms but do not define the permissible restrictions.
These should normally be prescribed by law, pursue a legitimate aim and respect
the principle of proportionality. There is a general provision defining the
possible restrictions of human rights (Article 52.3). This text however only
limits the Federal legislator and not the Republican one. It is in particular
regrettable that the reasons justifying the detention of a person are not
indicated either in Article 19.2 or Article 45.2. In addition, on three
occasions the text of the draft differs significantly from the Federal
Constitution and all three times it reduces protection. In Article 17 the right
to life
is qualified by a sentence “No one can be deprived of life arbitrarily”. This,
probably unintentionally, reduces protection and might be interpreted as
allowing the death penalty or even preventive killings in certain cases. The
right to appeal, in accordance with international treaties of the Russian Federation,
to international human rights bodies which appears in Article 46.3 of the
Federal Constitution is omitted in the otherwise corresponding Article 43 of
the Republic Constitution. Finally, Article 53 on the state of emergency,
contrary to the otherwise corresponding Article 56 of the Federal Constitution,
does not contain a list of human rights that may not be restricted in a state
of emergency. If it is decided to incorporate the human rights provisions of
the Federal Constitution into the Chechen Constitution, this should be done
fully and not selectively. Nevertheless it has to be acknowledged that the
practical relevance of these shortcomings seems limited since such situations
will be determined in any case on the basis of Federal law.
5.
The role of the President of the Chechen Republic
16.
The draft clearly opts for a presidential system of government
in which power is concentrated in the hands of a President who is the highest
official of the Chechen Republic and head of the executive authority of the
Chechen Republic (Article 63). This largely corresponds to the system chosen by
the Russian Constitution and to the system adopted in some other subjects of
the Federation. In the presence of sufficient checks and balances with respect
to the power of the President this is in principle a legitimate democratic
choice. In a conflict situation such as in Chechnya or a post-conflict
situation it has however important drawbacks. Since power is concentrated in
the hands of a single person, it may not be easy to effectively associate
different groups with the exercise of power, thus making it more difficult to
integrate opposing political groups into the system.
17.
In addition, the powers of the President listed in Article 70
of the Constitution seem excessive even within the framework of a presidential
system, although it has to be acknowledged that to a large extent these powers
reflect Federal law, in particular the “Federal Law on General Principles of
the Organisation of the legislative and representative organs of State power of
the subjects of the Russian Federation”. Particularly problematic is Article
70.2.m according to which the President appoints half of the members of the
Central Electoral Commission. This is not in line with international standards
requiring the organisation of elections by an impartial body
although it seems not unusual in the Russian Federation. The exclusive power to
present the candidatures for the appointment of the chairman, deputy chairmen
and judges of the Constitutional Court (Article 70.2.f) may also appear
problematic taken together with his other powers.
18.
Article 70.2
gives the President the power to issue edicts and directives, a power made even
stronger by Article 85 enabling the President “to issue edicts to make up for
deficiency of law”. These provisions, taken together, appear to provide the
President with wide-ranging legislative powers although there may be the
opportunity for Parliamentary scrutiny of these powers. His right to dissolve
Parliament if Parliament adopts a normative act which contradicts federal law
or the Constitution of the Republic (Article 70.2.g and Article 91.1.b) appears
dangerous. If the Parliament adopts such an act and refuses to withdraw it, the
act should simply be declared void by the competent court. However, it has to
be acknowledged that this power reflects the provisions of Article 9.2 of the
“Federal Law on General Principles of the Organisation of the legislative and
representative organs of State power of the subjects of the Russian
Federation”. The Commission has been informed that this possibility has existed
under Federal law since 1997 but has never to date been exercised in respect of
any subject of the Russian Federation.
19. The power
to suspend regulatory and other acts of executive authorities (Article 70.2.r)
should also be reserved to a court. Other powers of the President such as the
power to veto laws (Article 70.2.b) and to take part in Parliament sessions
(Article 70.2.o) are derived from the “Federal Law on General Principles of the
Organisation of the legislative and representative organs of State power of the
subjects of the Russian Federation”. The latter power poses problems in respect
of the separation of powers.
6. The
role of Parliament
20.
As a consequence of and compared to the powers of the
President Parliament seems quite weak. No reason is provided for the choice of
a bicameral Parliament which seems questionable in a federated entity and
threatens to further weaken the weight of the chambers with respect to the
President. Article 5.3.e of the “Federal Law on General Principles of the
Organisation of the legislative and representative organs of State power of the
subjects of the Russian Federation” provides for the possibility that the
Parliament of a federated entity may exercise a vote of no confidence not only
with respect to the President but also with respect to the Government or
individual ministers. This possibility should be included in the Constitution
of the Republic. There seems also no justification why only some and not all
Ministers are appointed with the consent of the People’s Assembly (Article
70.2.d). The possibility of dissolution of Parliament by the Supreme Court of
the Republic (Article 91.1.c) is also highly unusual.
7. Federal Control of the organs of the Republic
21.
The text of the draft constantly underlines the need for the
organs of the Republic to respect federal law (see e.g. Article 71 for the
President and Article 94.2 for the Government). According to Article 71 the
President of the Republic must “fulfil edicts and directives of the President
of the Russian Federation and resolutions and instructions of the government of
the Russian Federation”. Article 72.d, providing the power to depose (impeach)
the President by the President of the Russian Federation without setting out
the reasons for such a step or the procedure seems highly unusual in a Federal
system, especially but not only with respect to a directly elected President
with such broad powers. The provision seems based on Article 29-2 of the
“Federal Law on General Principles of the Organisation of the legislative and
representative organs of State power of the subjects of the Russian Federation”
which permits the President to be deposed where certain violations of law have
been confirmed by court decision but not implemented. If it is considered necessary to have this provision reflected in
the Constitution of the Republic, reference should at least be made to the
possible grounds for deposing the President and the procedure under Federal
law. Article 91.1.d provides for the dissolution of the Parliament of the
Republic by a Federal law. This appears again in contradiction with the usual
functioning of a democratic federal system. Such provisions may be
understandable in the specific context of the Russian Federation where
violations of Federal law by the entities are more likely than in other
federations. The Commission was also informed that such powers have in practice
never been exercised in the Russian Federation, although their presence is an
incentive to the observance of Federal law.
III. COMMENTS
ON SPECIFIC ARTICLES
Article 6
22. This
Article largely reflects Article 76 of the Constitution of the Russian
Federation. From a legal point of view it does not seem necessary to restate
the principles set forth there in the Constitution of the Republic.
Article 8
23. Section 4
of this Article seems a reaction to the present conflict situation. The wording
“inflaming social, racist, national and religious discord” is extremely broad
and there is a risk of it being used to outlaw any opposition. A reference to
the freedom of expression in this context would be welcome.
Article 13
24. Section 1
establishes, following the model of Article 16 of the Federal Constitution, a
kind of hierarchy between the provisions of the first chapter and the rest of
the Constitution. The consequences of this provision, which is very unusual
from an international point of view, would have to be clarified. It threatens
to weaken the provisions of the following chapters of the Constitution. It gets
some meaning if seen together with Article 112 of the draft which does not
allow amendments to this Chapter of the Constitution.
Article 59
25. Section 5
lists the present administrative districts. There is however no reason to give
constitutional force to the existing system of territorial division, in
particular not in a Chapter which is difficult to amend later on (see Article
112.5).
Article 64
26. The oath of
the President does not refer to the Constitution of the Federation although he
has to respect it and depends on it.
Article 67
27. This
Article provides no details as to the way of electing the President although
Section 2 implies that there is a second round. Section 2 appears extremely
complicated.
Article 79
28. This
Article defines the electoral system for the Council of the Republic but not
for the People’s Assembly.
Article 83
29. Section 2
provides for an important role of the Council of the Republic with respect to
appointments. Since this Council is elected on the basis of the existing
administrative subdivisions, there is a risk that it becomes dominated by local
administrations.
With respect to the appointment of judges the involvement
of an independent professional body would be highly desirable.
Article 84
30. The
establishment of a Human Rights Commissioner of the Chechen Republic is welcome
(lit.n). Basic elements of his status, tasks and powers should however be
defined in the Constitution.
Article 87
31. Lit. a)
seems to go beyond the usual powers of a parliament.
Article 88
32. The right
to legislative initiative should not be given to courts (or the Election
Commission). This is difficult to reconcile with their independence and
impartiality when later interpreting these provisions. The rule corresponds
however to the situation at the Federal level where the highest courts also
enjoy this right.
Article 96
33. It is
difficult to assess on the basis of this Article whether there is a risk of
overlap between Federal and Republican courts and what is the extent of the
powers of the courts of the Republic.
Article 98
34. It seems
strange to provide that judges “answer to” Federal law but are only “guided by”
Republican law. Is Republican law not law binding on judges? This impression
may be due to translation, but, if not, the provision should be appropriately
amended.
Article 100
35. The powers
of the Constitutional Court appear quite limited. They should include in
particular a procedure on abstract and concrete control of norms. The law on
the Constitutional Court to be adopted on the basis of Article 100.4 should
provide an opportunity to introduce such a procedure in the future. The present
situation in the Republic would also seem to make it particularly desirable to
give to the Court the possibility of hearing claims from individuals that their
human rights were violated. This would give some meaning to the repetition of
the human rights set forth in the Federal Constitution in the Constitution of the
Republic.
Article 112
36. Section 2
of this Article provides that amendments to the Constitution may be adopted by
a Constitutional Assembly without specifying in any way the composition of this
Assembly. This cannot however be left to an ordinary law.
Sections 3 and 4 strongly limit the possibility for
constitutional amendments. These provisions, especially read together with
Section 5, are not at all clear. According to section 4 Chapters 4 to 7 may be
amended by the Constitutional Assembly and such decisions may be confirmed by
referendum according to section 5.
According to Section 3, Chapter 1 may not be amended. It seems that
section 5 has to be understood, although this is not made explicit, in the
sense that other chapters may be amended by referendum if two thirds of the
Constitutional Assembly so propose.
Concluding and transitional provisions
37. Half of the
members of the State Council during the transitional period will be the heads
of district administration and the other half people elected during meetings of
citizens. This solution is in no way satisfactory. If it is possible to hold a
referendum, why not elect at the same time the heads of district
administrations?
The establishment of the lists of assessors in the future
people’s courts during this period should also be done in a more democratic
manner.
IV.
CONCLUSIONS
38. The above analysis of the draft has shown
that it is mainly guided by the intention to emphasise the status of the
Chechen Republic as a subject of the Federation on an equal footing with the
other subjects. However, it seems that
the full opportunity to ensure the acceptance of the system by the local
population may not have been taken. In particular the powers the Republic
enjoys by virtue of the Federal Constitution are not clearly set forth in the
draft. The strong concentration of powers in the hands of the President and the
relatively weak Parliament may not facilitate the integration of the sceptical
or hostile parts of the population into the political system.
39. This does
however not mean that the adoption of the draft Constitution cannot contribute
to a future settlement. The draft Constitution, if applied, should provide the
population of the Chechen Republic with the possibility of exercising constitutional
rights. It will allow the establishment of a new tier of institutions at the
level of the Republic which act as a means of legitimate interlocution between
the Republic and the Federal institutions. It may thus be a first step leading
to a further process of devolution of powers to the Republic on the basis of
the possibilities offered by the Federal Constitution. Although it may appear
unfortunate that a bigger step was not taken when preparing this draft, the
Commission is of the opinion that it should be possible to move further in this
direction in the future. It is available to contribute if the authorities so
wish.
