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Venice Commission adopts new opinion on 2020 constitutional amendments and the procedure for their adoption in the Russian Federation

Strasbourg 23 Macrh 2021
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Venice Commission adopts new opinion on 2020 constitutional amendments and the procedure for their adoption in the Russian Federation
   

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Communications

 

Réf. DC 035(2021)

Venice Commission adopts new opinion on 2020 constitutional amendments and the procedure for their adoption in the Russian Federation

The Council of Europe body of constitutional experts, the Venice Commission, in a new opinion adopted on 19 March 2021, notes that the 2020 constitutional amendments in the Russian Federation brought about several positive changes, but underlines serious flaws in the substance of the amendments to the Constitution and in the procedure of its adoption.

The constitutional amendments adopted in 2020 represent the most extensive and substantive revision of the 1993 Constitution of the Russian Federation ever carried out, notes the Venice Commission in its opinion.

The Venice Commission welcomes that the amendments bring about several positive changes, inter alia:

  • The increased protection of social rights
  • The two-term limitation of the mandate of the President.
  • The possibility for the President to refer to the Constitutional Court the use of a presidential veto.
  • The constitutionalisation of the State Council, which has, already for two decades, operated based solely on an executive legal act.
  • The extension of parliamentary control, including the possibility of carrying out inquiries into the heads of state bodies and the competence to “hear” the annual report of the Prosecutor of the Russian Federation.
  • The introduction of a fixed six-year term for most of the Senators of the Federation Council.

Nonetheless, the Commission has identified some serious flaws in the Constitution and the procedure of its adoption.

As to the procedure of the adoption of the amendments, the Venice Commission concludes that the speed of the preparation of such wide-ranging amendments was clearly inappropriate for the depth of the amendments considering their societal impact. This speed resulted in a lack of time for a proper period of consultation with civil society prior to the adoption of the amendments by parliament.

As a Constitutional Assembly was not convened, the Constitution was adopted after it was voted by Parliament and by the subjects of the Federation. Following these steps, the amendments had to enter into force under Article 135 of the Constitution. A negative outcome of the additional steps which were introduced ad hoc, i.e. the review by the Constitutional Court and the all-Russian vote, could not have prevented the entry into force of the amendments. It follows that the introduction of these additional steps in the procedure used to amend the Constitution created an obvious tension with Article 16 of the Constitution which safeguards the “the fundamental principles of the constitutional order of the Russian Federation”, the Venice Commission stresses.

On a general note, the Venice Commission says that raising to the constitutional level (constitutionalising) existing provisions of ordinary law creates a risk of excluding the issues in question from open debate and thus restricts democracy. Constitutionalised norms become more rigid; they cannot be reviewed by the Constitutional Court and become, on the contrary, the Court’s yardstick for evaluating other legal provisions.

Analysing the substance of the amendments, the Venice Commission concludes that they have disproportionately strengthened the position of the President of the Russian Federation and have done away with some of the checks and balances originally foreseen in the Constitution. The ad hominem exclusion from the term limits of the current and previous Presidents contradicts the very logic of the adopted amendment limiting the President’s mandate to two terms. The unusually wide scope of immunity, taken together with rules of impeachment that make it very difficult to dismiss a President raise serious concerns as to the accountability of the President.

The President has acquired additional powers at the expense of the Chair of the Government. The increase in the number of Senators appointed by the President may give the latter additional leverage, thus raising doubts as to whether the Federation Council will be independent enough from the executive to be able to exercise the monitoring functions entrusted to it by the Constitution.

Taken together, these changes go far beyond what is appropriate under the principle of separation of powers, even in presidential regimes, the Venice Commission concludes.

The amendments weaken constituent subjects and local self-government bodies. The inclusion of provisions referring to the Russian nation creates a tension with the multi-ethnic character of the Russian Federation.

With regard to the judiciary, the amendments, notably the power for the President to initiate the dismissal of apex court presidents as well as presidents, vice-presidents and judges of the cassation and appeal courts on very vague grounds affect the core element of judicial independence. Taken together, the amendments to the provisions on the judiciary amount to a danger to the rule of law in the Russian Federation.

The Venice Commission recommends at the very least to include in the implementing legislation the detailed criteria of what constitutes “a violation tarnishing the honour and dignity of judge” and “impossibility of discharging the functions of a judge” as defined by the Assembly of Judges. In addition, the implementing legislation should specify that disciplinary liability may only be engaged if a violation has been committed ‘deliberately’/’with intent’ or ‘with gross negligence’.

The current interim opinion was prepared upon the request of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe. It is based on virtual meetings with the representatives of the Russian parliamentarians and civil society representatives, as well as on written contributions from the Russian authorities. In its previous opinion on the matter adopted on 18 June 2020 the Venice Commission dealt with the draft amendments to the Russian Constitution related exclusively to the execution in the Russian Federation of decisions by the European Court of Human Rights. The current opinion addresses the remaining substantive issues. It will be complemented at a later stage by a final opinion taking also into account major implementing legislation.

 

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