25 March 2021
by Boris Vishnevsky, Deputy of the Legislative Assembly of St. Petersburg, laureate of the Moscow Helsinki Group Prize
The Venice Commission of the Council of Europe – the authoritative international expert and advisory body on constitutional law – has stated that the July 2020 amendments to the Russian Constitution “go far beyond what is appropriate under the principle of separation of powers even under presidential regimes.”
The fact that Russia is a super-presidential republic (where the powers of the head of state are higher than is usually the case in states with a presidential form of government) has been noted by many (including the author) since December 1993, when the new Constitution was adopted. But now, after the verdict of the Venice Commission, Russia can be confidently called an ultra-presidential republic.
A year ago, a large group of academics and politicians appealed to the Council of Europe: Viktor Sheinis, a professor and one of the authors of the 1993 Constitution; professor of constitutional law Irina Alebastrova, the chair of the Sakharov Center; Vyacheslav Bakhmin (co-chair of the Moscow Helsinki Group); the chair of the Boris Nemtsov Foundation, Vladimir Kara-Murza, PhD candidates Andrei Zubov, Lilia Shevtsova and Ivan Kurilla; as well as Stanislav Stanskikh, Yury Dzhibladze, Lev Gudkov, Valery Borshchev (co-chair of the Moscow Helsinki Group), Elena Panfilova, Igor Klyamkin, Vladimir Ryzhkov, Lev Ponomarev (a member of the Moscow Helsinki Group added by the Ministry of Justice to the register of foreign media agents); Lev Shlosberg, Natalya Evdokimova, Alexander Cherkasov and others, including the author.
The statement noted that what is presented to society as a constitutional reform in practice further alienates Russia from the implementation of the principles of a democratic federal rule of law with a republican form of government and European constitutional values and democratic norms and also directly contradicts Russia’s obligations within the Council of Europe.
It further noted that the proposed amendments to the Constitution strengthen an already powerful and undemocratic vertical of power and reduce guarantees of the upholding of human rights; that they increase the imbalance in the system of checks and balances and weaken the independence of the judiciary; and finally, that they centralise state administration even further, to the detriment of the constituent entities of the Russian Federation and significantly narrowing the autonomy of local authorities.
It concluded that these amendments are aimed not at improving the functioning of the political system of Russia, but at ensuring the preservation of the current political elite’s power and at preventing the prospects for the development of democratic and legal institutions.
Most importantly, the statement noted that the amendments include cancelling the presidential term of the incumbent head of state, allowing him to be re-elected for two six-year terms after more than 20 years in power. This will trample on the fundamental principle of a democratic state: the change of those in power.
The Monitoring Committee of the Parliamentary Assembly of the Council of Europe has sent an appeal for examination to the Venice Commission (European Commission for Democracy through Law), whose task is to analyse laws and bills of the member states that touch upon problems of constitutional law.
On 19 March the Commission adopted its conclusion, which was then made public on 23 March and it is extremely inconvenient for the Russian authorities.
The Commission notes that the amendments represent the most extensive and significant revision of the 1993 Constitution ever undertaken in Russia. To sweeten the pill, the Commission welcomes the fact that the amendments lead to a number of positive changes: increased protection of social rights, the limitation of presidential powers to two terms, and the expansion of parliamentary oversight.
And then, it states that it has identified “a number of serious inadequacies in the Constitution and the procedure for its adoption.”
That the speed of preparation of such large-scale amendments “clearly did not correspond to the significance of the amendments, given their impact on society.”
That raising the existing provisions of customary law to the constitutional level “creates the risk of excluding the issues under consideration from open debate and thus restricts democracy”, because the constitutional norms become more stringent, cannot be reviewed by the Constitutional Court and, conversely, can serve as a criterion for assessing other legal norms. And, more importantly, analysing the substance of the amendments, the Venice Commission concludes that they “disproportionately strengthened the position of the President of the Russian Federation and eliminated some of the systems of checks and balances originally envisaged by the Constitution.” Namely:
The exclusion of current and previous presidents from the term limit “contradicts the very logic of the adopted amendments limiting the presidential powers to two terms”;
An unusually wide scope of immunity, coupled with rules for impeachment, which make it very difficult to dismiss the president, raise serious concerns about the president’s accountability;
The president received additional powers at the expense of the prime minister;
An increase in the number of senators appointed by the president may give the latter additional leverage, thereby raising doubts as to whether the Federation Council will be sufficiently independent from the executive branch to be able to exercise the control functions entrusted to it by the Constitution.
And cumulatively, as stated above, “go far beyond what is appropriate according to the principle of separation of powers, even under a presidential regime.”
In addition, the Commission notes that the amendments “weaken the subjects and bodies of local self-government.”
That “the inclusion of provisions concerning the Russian ethnic group creates a contradiction with the multi-ethnic nature of the Russian federation.”
And that the president’s right to initiate the dismissal of chairs of higher courts, and also chairs and vice-chairs of cassation and appeal courts on very vague grounds “affects a key element of judicial independence” and “poses a threat to the rule of law in the Russian Federation.”
And finally, the Commission states, that this opinion will be “supplemented by a final opinion, at a later stage, which will also take into account the main legislative acts on implementation.”
Of course, there is nothing sensational in the Commission’s opinion: Russian opposition politicians and experts have been talking and writing about practically all of these issues for months – since the amendments appeared. And in Yabloko, together with a specially created Public Constitutional Council, they have developed alternative amendments to the Constitution, providing for movement in the opposition direction – to a parliamentary-presidential republic, where the president’s power is seriously limited. But all this hasn’t stopped the Kremlin, which has decided the main and most important assignment: “Putin forever”.
How the “Putin amendments” were then passed – in the absence of serious discussions, with a monopoly on campaigning exclusively for the amendments on television, and the weekly “curbside voting” – is well known.
On 2 July 2020 Russians woke up in a completely different republic.
And, in fact, there are doubts about whether it is a republic at all.
The opportunities for democracy are now at a minimum.
Nevertheless, a return to a republic is possible.
For this, we would need a sufficient number of republicans to come to the autumn elections.