Main Characteristics of the Federal Legislation on Local Self-Government and its Realization in the Nizhni Novgorod Region.

To define the legal basis of local self-government in Russia it is necessary to start with the analysis of the current constitution of the Russian Federation, which was adopted in 1993. It is known that the Russian Constitution of 1993 has some peculiarities in the content of its provisions as compared with the previous ones and possesses somewhat unusual legal traits of some of them. This is first of all true concerning the provisions of Chapter I " Fundamentals of the Constitutional System" of the First Part of the Russian Constitution. Its first peculiarity is the formulation and assignment of the system of the most general provisions on the most vital phenomena of state-legal and social-economic life of the society.

Its second peculiarity is that the above mentioned provisions possess higher legal power than the constitutional provisions of Chapter 3 " Russian Federation”, Chapter 4 "President of the Russian Federation", Chapter 5 " Federal Assembly", Chapter 6 "Government of the Russian Federation", Chapter 7 "Judicial Power" and, I would like to stress it, Chapter 8 "Local Self-Government".

  Such level of legal power is created by the fact that Article 16 of Part I provides the mechanism of, figuratively speaking, cementing the provisions of Chapter 1 "Fundamentals of the Constitutional System". The formula of the first paragraph of Article 16 of the Russian Constitution can be considered as one of the elements of this mechanism: “The provisions of the present Chapter of the Constitution are the foundations of the constitutional system of the Russian Federation and may not be changed except as provided for in this Constitution. » Addressing the Chapter 9 "Constitutional Amendments and Revision of the Constitution", the Article 135 of the Russian Constitution in particular, we can see that the provisions of Chapters 2 (“Rights and Liberties of Man and Citizen”) and the Chapter 9 cannot be revised by the Federal Assembly. If the proposal about the revision of the provisions of Chapters 1, 2 and 9 of the Russian Constitution is supported by three fifth of voices of the members of the Constitutional Council and deputies of the State Duma, then, in line with the federal constitutional law, the Constitutional Council is summoned, which either assures the invariability of the constitution of the Russian Federation, or develops the draft of a new Constitution, that is further either approved by the Constitutional Council or is brought to public voting.

 Thus the conclusion is simple - even to put in or cross out the punctuation mark in the above mentioned provisions, including those concerning the local self-government, it is necessary to complete the procedures envisaged by Article135 of the Russian Constitution.

Returning to Article 16 of the constitution containing the next element of the mechanism of creation of Chapter One high legal power, let me quote the content of its second part: “ No other provision of this Constitution may contravene the foundations of the constitutional system of the Russian Federation.»

Thus as far as the provisions on self-government of Chapter I “Fundamentals of the Constitutional System” are concerned, one should stress their general character, rigidity of the mechanism of changing their content and form and their predominant legal force compared with other constitutional provisions on self-government.

At the same time these provisions are small in volume and can be presented as four elements creating the legal foundation of local self-government as one of the fundamentals of the constitutional system of the Russian Federation.

The first of these elements is contained in Part 2 of Article 3 of the Russian Constitution in the form of the provision of exercising by the people their power through organs of local self-government.

Second, third and forth elements are fixed in Article 12 in the form of the following provisions:

·  Local self-government is recognized and guaranteed in the Russian Federation;

·   Local self-government is independent within the bounds of its authorities;

·  Local self-government bodies are not part of the state power bodies.

Characterizing the quoted provisions in brief, we want to stress the existence of objective circumstances demanding the exercise of self-government, in particular when solving the questions directly concerning human rights, economic expediency, and cutting off bureaucratic aspirations of the state power bodies.

Constitutional provisions of the State responsibilities in recognition and guarantee of local self-government and independence of the latter within the boundaries of its authorities are quite clear. They are shown in detail and are well-grounded contrary to the provision that the bodies of self-government are not part of the State power bodies. The context of the mentioned provision does not consider the participation of the heads of local municipal administrations and regional-municipal entities in the deputies’ corps of representative (legislative) bodies of power of the subjects of the Russian Federation. Constitutional potential of the provision mentioned above is not used by the legal practice as well.

Provisions of Articles 130,131,132 and 133 of the Russian Constitution united in Chapter 8 named “Local Self-Government”, having general character and thus possessing large variability in the solution of a particular situation, constitute, by their content, the main elements of the building of the local self-government under construction. Here we can clearly single out five provisions that have fundamental meaning for the organization and legal regulation of local self-government.

1.  The first of these provisions deal with the subject of the local self-government activity, namely the solution of local problems, ownership and the use and disposal of municipal property.

2.  The second is the introduction of organizational-legal forms of local self-government, such as referendum, elections and other forms of direct will expression, through elected and other bodies of local self-government.

3.  The third is the establishment of local self-government in cities, rural areas and other localities, taking into account historical and other local traditions; on the other hand, the borders of territorial entities under local self-government are changed only with the consent of their population.

4.  The fourth is the right to form, approve and execute the local budget, to levy local taxes and duties.

5.  The fifth provision is the possibility to give to the bodies of local self-government some state powers by law with the transfer of material and financial resources required to exercise such powers.

 The provision contained in Article 133 of the Russian Constitution is the detailed description of such fundamentals of the constitutional system as the guarantee of local self-government.

When investigating the constitutional-legal conception of local self-government of the Russian Federation, we should mention the well-known provision of part 4 of Article 15 of the Russian Constitution about recognition of generally accepted principles and norms of international law and international agreements of the Russian Federation as a constituent of its legal system. In particular, the European Charter of Local Self-Government (Charter hereinafter) enforced by the Federal Law on “Ratification of the European Charter of Local Self-Government”/Code of Laws of RF, 1998, N15, p.1695; 1998, N36, p. 4466/ was completely reflected in the Russian Constitution and federal legislation despite its belonging to the European continental conception of local self-government and its possession of a strong stress on independent regulation and management of most part of public matters by local self-government.

At the same time the provision that “Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority” (Charter, art. 4, par. 2) is a clear legal norm for courts considering disputes between different authorities, as the corresponding provisions are less clearly fixed in the Russian legislation, and the legal consciousness of most functionaries of the power bodies of the subjects of the Russian Federation usually considers local self-government as a subordinate structure with all consequences following.

Whatever numerous the works considering the correlation between the Russian Federation, international law and international agreements can be in the Russian legal science, the influence of the Charter on the development of local self-government has hardly been given any attention.

The provision of the Item m) of the Article 72 of the Russian Constitution on joint authority of the Russian Federation and its subjects in the “Establishment of general guidelines of the organization of the system of bodies of state power and local self-government» is an essential element of the concept under consideration. Given provision is a constitutional basis for additional legal regulation of local self-government.

Addressing the current federal legislation let me mention special Federal Laws: “On General Principles of Self-Government Organization in the Russian Federation”, “On Financial Fundamentals of Local Self-Government in the Russian Federation”, “On Fundamentals of the Municipal service in the Russian Federation”, and “On Provision of the Constitutional Rights of Russian Citizens to Elect and to be Elected at the Local Self-Government Bodies.” We should also mention here the Tax Code of the Russian Federation, the Budget Code of the Russian Federation, Federal Laws “On Education”, “On Bowels of the Earth” and others.

Generalizing the characteristics of the content of the Federal law “On general principles of organization of local self-government in the Russian Federation” we can say the following:

1.  The title of this law let us presume that it contains mainly general provisions.

2. The definition of the content of the terms used, out of which “municipal education”, “questions of local importance», “local self-government”, and in fact constituting the meaning stem of local self-government, can be named the key moments of the above mentioned law.

3. The most important group of the provisions of this law is represented by the Articles 4, 5, 6 as they stipulate the authorities of the bodies of state powers of the Russian Federation, of the bodies of state power of the subjects of the Russian Federation in the field of local self-government, and the questions under jurisdiction of local self-government without using such terms as “and other authorities”, which are usually placed in the end of the article. We can affirm that a fruitful attempt to divide the authorities in the sphere of local self-government between the mentioned power bodies and local self-government has been made.

One should also pay attention to Article 7 on the necessity of the administration of local self-government according to the Russian Constitution, the Federal law mentioned above, other Federal laws, Constitutions and Regulations of the subjects of the Russian Federation and laws of the subjects of the Russian Federation. The article also contains the original stipulation – Federal laws, laws of the subjects of the Russian Federation -, establishing the norms of municipal law that cannot contradict the Russian Constitution and the given Federal law or restrict the rights of local self-government guaranteed by them.

The interpretation of the Federal law “On Organization of Local Self-Government” let us make a conclusion that it possesses predominant legal force as compared with all other federal laws and, undoubtedly, with the laws of the subjects of the Russian Federation. Not speaking about the well-groundness of such a formula in Article 5 of the Federal Law in detail, the latter can be named even a ”minor self-government constitution”. Opportunely, in a number of cases the legal practice of dispute solution on the right of the local self-government bodies to solve the questions of local importance independently leads on the legal priority of the given law to the laws of the subjects of the Russian Federation.

Provisions of Articles 12-13 on territorial fundamentals of local self-government are one of the most important stipulations of the Federal Law. It must be admitted that they do not contain clear and unambiguous answer to the question of the criteria of establishment of the territories included into this or that kind of municipal formation. The constitution foresees that local self-government is administered in urban, rural and other kind of territories, while the territories of that municipal formation are established along federal laws and laws of the subjects of the Russian Federation; on the other hand, cities, regions and rural settlements have different statutes. This all complicates the question of what territories form a municipality and leads to the exclusion by some subjects of the Russian Federation of cities and regions from the number of municipal formations and thus the establishment of representative and executive state bodies in them.

A propos, the establishment of representative and executive state bodies in regions and cities is declared as non-contradictory to the Russian Constitution by the Decree of the Constitutional Court of the Russian Federation N 1-P on 24.01 97 in “The Case of Check-Up of Constitutionality of the Law of Udmurt Republic on 17 April 1996 “On System of the State Power Bodies in the Udmurt Republic”.

I would like to express my opinion in this connection and stress that the given decision of the Constitutional Court of the Russian Federation legitimized the exclusion of the largest territorial formations from the sphere of local self-government. The question arises whether it is possible to restrict such fundamentals of the constitutional system of Russia on local self-government. It is evident that the question of the legitimacy of such exclusion can be answered by practice. As it is known this practice is different. But one fact is evident: the lowering of the level of local self-government to villages, settlements, city districts does not coincide with the federal laws giving to local self-government the right to manage the municipal property, to levy local taxes, to form, approve and execute the local budgets and to administer some state authorities by the local self-government bodies.  These largest and most important organizational, material, financial and legal qualities of local self-government are in many cases clearly and definitely secured by the above mentioned federal laws.

The above-mentioned federal laws also play an important role in the solution of other questions of local self-government establishment and development, in particular through the attribution of constitutionally secured authority to the bodies of state power of the subjects of the Russian Federation in establishing general principles of local self-government organization.

Laws on organization of local self-government, on the state registration of municipal formations regulations, on election of deputies and heads of local self-government and local referendum are adopted in Nizhnii Novgorod Oblast. The same question is also solved by many laws and legislative acts of the Legislative Council, of Governor and the Government of the oblast when approving the budget of the oblast, passing the state property into the ownership of the municipality, delegating some state authorities to the bodies of local self-government.

Evaluating the illustrated legislation of the oblast and the realization of its practice in general, we can say the following:

The concept of local self-government, established by constitutional and other norms of the federal legislation, is brought into life slowly. Particular pressure is being exercised on the aspiration of the local self-government bodies to solve the local questions independently. The legislation of the oblast is overfilled with the provisions on the forms of coordination of the solutions of the questions, for example, of election of deputies of local self-government representative bodies and heads of local self-government with the state power bodies of the oblast. It is in this kind of coordination that the last decision in the dispute is made by the court.

Strong tension in the above mentioned interaction is felt in the distribution of the shares of the taxes between the oblast and the local budgets. The processes necessary for the redistribution of resources among municipal formations by using differentiated rates of sharing the tax revenues turn into the subject of long-lasting political debates, to put it mildly.

The execution of state duties by the local self-government bodies is accompanied by facts of ignoring such authorities, especially those on salary payments and maintenance of economic complexes, spending the state allocated money on other purposes by the bodies of state power of the oblast and bodies of local self-government. And these problems are often turned into the subject of political disputes.

The formation of municipal property and the exploitation of its objects, the utilization of the land within the municipal formation boundaries in questions connected with privatization and rent, maintenance of historical and cultural monuments of local and federal importance due to their different status and being on the balance of either municipal or state unitary enterprises is the subject of many disagreements. The same is true about the municipal economy.

It is evident that the problem of a detailed division of authorities between the state power bodies of the subjects of the Federation and the local self-government bodies working on their territories has become crucial and the delay in its solution can have large negative social consequences.

I do not support the solution of the mentioned problems by exclusion of the cities and regions from the number of municipal formations due to the circumstances stated above, and I think that it is urgent to solve the following problems:

1.  The increase of the role of the state power bodies of the subjects of the Russian Federation in organization and work of the local self-government by passing a federal law, stating in detail the order of giving the bodies of local self-government some state authorities with the definition of the forms of control executed by the subjects of the Russian Federation over the execution of these authorities.

2.  The development and adoption of the package of legislative and other legal acts by the subjects of the Russian Federation with participation of the local self-government bodies in order to work out in detail the authorities of the state bodies of the subjects of the Russian Federation in the field of local self-government stipulated by Article 5 of the Federal Law  “On General Principles of Organization of Local Self-Government in the Russian Federation.”

3.  The development and utilization of the legal norms stating coordinated positions of local self-government bodies on the subjects of execution of local self-government authority stated in Article 6 of the above-mentioned law.

 The broadening of the legal regulation of the questions of cooperation of the state bodies of the subjects of the Russian Federation with the local self-government bodies in the constitutions and regulations of the subjects of the Russian Federation as one of the organizational-legal means of stabilization of local self-government in the developing legislative systems of the subjects of the Russian Federation.