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Number 4(8), autumn, 2003
Number 8 of the journal Kazan Federalist (in english)
KAZAN CENTER
OF FEDERALISM
AND PUBLIC
POLICY
/ Kazan Center of Federalism and Public Policy / Publications / Journal Kazan Federalist / 2003 / Number 4(8), autumn, 2003 / A new stage of local self-government reform in Russia and the German experience return to homepage
A new stage of local self-government reform in Russia and the German experience
 
 
 

:
  • Elena Gritsenko
The current stage of local self-government reform is executed in the context of large-scale changes in the whole system of public authority; therefore, it cannot be analyzed apart from Russias federalism reforms, administrative reforms and the reform of the budget and tax system of the Russian Federation. This integrated approach has been outlined back in the Conception of the Distribution of Powers.

Elena Gritsenko*

A new stage of local self-government reform in Russia and the German experience

The current stage of local self-government reform is executed in the context of large-scale changes in the whole system of public authority; therefore, it cannot be analyzed apart from Russias federalism reforms, administrative reforms and the reform of the budget and tax system of the Russian Federation. This integrated approach has been outlined back in the Conception of the Distribution of Powers.[1] Later on, it was expressed in adopted federal laws that is, in changes and additions made to federal law on the state authority organs in the federal subjects[2] as well as in the new version of the federal law on local self-government.[3] It is also expressed in the bills which will be discussed in this article the federal law On Entering Changes and Additions to the Budget Code of the Russian Federation Regarding the Regulation of Intergovernmental Relations and the federal law On Entering Changes and Additions to the Tax Code of the Russian Federation and Recognizing the Effect of the RF Law On the Bases of the Tax System in the RF introduced by the Russian government to the State Duma Federal Council of the RF on September 4, 2003.[4]

In general, the legislators aim at raising the efficiency and responsibility of each authority level and providing the combination of powers and spending obligations for the entire system of authorities. The mentioned program goals should also be achieved in the process of reforming the lower level of public authority that of local self-government.

In Germany, issues of federalism and communal (local) self-government (or communal reform) cause burning discussions these days. In spite of the differences in the federal organization of the Russian Federation and Germany, local self-government is executed in both states under the conditions of distributed powers between two levels of state authority the federation and the federal subjects. Thus, local self-government reform develops in the context of the reform of federalism as well as in the reform of public authority in general.

According to the remarks of modern researchers, three circles of problems remain vital for the German municipal (communal) politics:

- conformity of organizational forms to the goals pursued by communities;

- proportionate assignment of public goals to the Federation, federal lands and communities;

- allocation of sufficient funds in accordance with the defined goals.[5]

Currently, the above-mentioned problems are no less important for Russia. This lets us conclude that using the German experience can be helpful in elaborating concrete ways to carry out the steps planned for the new stage of Russian self-government reform.

Territorial and functional reform two directions of reforming local self-government

As has been demonstrated by the evolution of communal (local) self-government reform in Germany, consolidation of the economic, financial and management potential of the lower level authorities can be achieved through conducting the territorial (Gebietsreform) and functional reform (Funktionalreform). Territorial communal reform suggests setting optimal borders for communities and municipal corporations with the corresponding set of goals and level of responsibility, while the functional reform deals with changes in sets of goals and responsibility level of a municipal unit type.

The territorial reform, being a means of optimizing municipal authority (through enlarging territories of communities or creating united communities (Gesamtgemeinden) of different kinds) came to the forefront in the 1970s in the Western federal lands.[6] After the reunification of Germany, Eastern lands also implemented a territorial reform which was mostly concerned with changing the borders of counties (Kreise) and did not deal with large-scale reforming of communal territories. Consolidation of the management potential of communities was reached through creating administrative (Verwaltungsgemeinschaften Sachsen-Anhalt, Thueringen) or departmental (Aemter) communities (Brandenburg, Mecklenburg-Vorpommern).[7]

At the same time, territorial reform was accompanied by a number of contradictory trends: enlargement of a communal territory meant not only increased socioeconomic and management potential (which was necessary to tackle objectively more complicated municipal tasks), but also the loss of a local community feeling, a gap between authorities and citizens. As Heinrich Scholler justly remarked, if higher efficiency and rationalization of municipal governing are gained at the expense of letting fewer citizens be a part of it, then the very essence of self-government and the very idea of building democracy bottom-up is lost.[8]

In parallel with the territorial reform, the functional reform started being discussed in the German lands. The functional reform was mostly perceived as formal transfer of powers from the lands to certain municipal corporations. The tasks assigned to communities and problems of the local community became a keystone of discussions on the topic. The volume and contents of municipal tasks, however, directly depends on the size and financial potential of a community. The functional reform also assumes distribution of powers between the district (county) and the community level of communal self-government. Above that, it includes a political aspect: participation of communal corporations in any state-level decision-making process which concerns the interests of local self-government; securing the direct democracy institutes on the local level.[9]

The Russian municipal formations also face the double task of implementing territorial and functional reforms. On one hand, it is demonstrated in the new local self-government federal law which plans for some territorial changes in connection with transferring all federal subjects (except cities of federal importance) to the two-level territorial organization model of local self-government settlement metropolitan area (Ch. 2, Art. 85, C. 1, Subc. 1, C. 3 and others). Unlike the German variant of the territorial communal reform, the Russian variant is not concerned with enlarging the lower level of municipal formations (settlements), but rather with subdividing the wide-spread one-level area model of territorial organization, which currently does not give the status of municipal formations to some rural localities and even towns. According to the new local self-government law (Art. 11) the status of a municipal formation should be given to all towns (except towns claiming to get the status of an urban district) and villages including their adjacent territories; rural settlements or their unions can get the status of a municipal formation, i.e. rural community, depending on their population size (as a rule, it should exceed 1,000 people).

On the other hand, the functional aspect of the reform is very significant: the local issues of a settlement, metropolitan area, or urban district are strictly separated, and certain forms of interaction between municipal formations of different types (art. 14-16 of the federal law on local self-government), as well as between the municipal formations and the state (including the issues of vesting local authorities with certain state powers see Ch. 4), are defined. Sufficient attention is given to the ability of municipal formations and settlements to influence state and local decision-making processes (Art. 8, Ch. 5, Ch. 9).

Further development of local democracy

The key ideas of the local self-government reform are a part of all-European democratic standards. Expressed in the new Federal Law, those standards are connected with the development of local democracy, local self-government being a kind of government by the people, or democracy. It is expressed through several key points of the law:

- local self-government as a level of public authority is brought closer to people by giving the status of a municipal formation to all towns, villages and rural settlements or their unions in accordance with the criteria of population size, territory size and accessibility of the settlements center, as stated by the law (Art. 11);

- forms of direct democracy are developed at the local level (Ch. 5 of the Law): in addition to the well-known forms of local self-government (introduced by the Federal Law on local self-government of 1995[10] - i.e. local referendum, municipal elections, recall of an elected representative of local self-government, gathering of citizens, territorial public self-government, citizens assembly, lawmaking initiative, address of citizens to local self-government organs, etc.), the current Law mentions and regulates public hearings, conferences (gathering of delegates), polling of citizens, voting on issues of changing the borders limits and reforming municipal formations;

- in case of forming a new municipal formation or reforming the existing one, the structure of local self-government organs is determined through a democratic procedure (the decision is made by a local referendum, a gathering of citizens or by a local representative organ Art. 34, C. 5-6 of the Law);

- additional guarantees ensuring the transparency of local authorities are set: the project of the local budget, the decision to pass it, an annual budget administration report, quarterly data on the process of budget administration; quarterly data on the number of municipal employees with an indication of actual expenditures on their pay all these documents have to be laid open to the public (Art. 52, C.6 of the Law). In addition to that, public hearings have to be held for discussions of the projects of municipal formations statute, local budget and budget administration report, as well as the formations development plans and programs (Art. 28, C.3).

- representative organs gain more importance in the system of local self-government organs: government organs and officers should be promoted by the population or representative organs (Art. 35, C. 2; Art. 36, C. 2, Subc. 1, C.5; Art. 37, C. 3, 5, 6 of the Law). The head of administration cannot simultaneously hold the function of the head of representative organ (Art. 36, C. 2, Subc. 4). The control powers of representative organs are extended: they now have the exclusive competence to control the activity of local self-government organs and officers in regard to local issues (Art. 35, C. 10, Subc. 9). There are introduced the right to override the veto of the municipal head (Art. 35, C. 13), as well as the concept of broad social representation in the process of determining the limit of a minimal number of deputies in the settlements (art. 35, c. 6).

Engaging residents and citizens in local government is the crucial element of communal self-government guarantee in Germany. At the same time, the German doctrine separates two forms of peoples participation in local self-government:

- individual participation in internal municipal relations which are set within the commune[11] between the organs and population;

- participation in external relations within the limits of a unified territorial corporation a community or a union of communities.

In regard to the forms of internal municipal participation in communal self-government, it is important to differentiate between two aspects: on the one hand, the residents are the consumers of municipal services, but, on the other hand, they actively participate in administering local government and important municipal decision-making. In this connection, municipal legislation differentiates between the citizens (Buerger) and residents (Einwohner) of the community. Accordingly, different terms are used to denote a body of citizens and a collective of residents township (Buergerschaft) and communal population (Gemeindebevoelkerung). Population is a generic term which includes the body of citizens as well.

Community residents are all individuals who temporarily or permanently live in the community, i.e. have residence on its territory.[12] Residence is a very wide term in this context: it includes suburban houses, dachas, and residential containers. The fact that an individual has several residences does not influence his community resident status: he might simultaneously be a resident of several communities. The laws on communities define a circle of rights and duties of residents. They include, for instance, the right to use community institutions (Benutzung der oeffentlichen Einrichtungen), the duty to bear expenses connected with being a community member,[13] the right to obtain information on communal matters of public importance and to participate in solving municipal problems (Unterrichtung der Einwohner),[14] the right to participate in gatherings of residents (Einwohnerversammlungen),[15] the right to put questions to the representative organ of the community during special times scheduled for that purpose (Einwohnerfragestunde), and to participate in hearings organized by the representative organ of the community (Anhoerung);[16] and, finally, the right to raise the initiative to examine a certain issue from the area of the communitys competence in the communitys representative organ (Einwohnerantrag).[17]

Unlike community residents, community citizens are only those individuals who permanently or predominantly reside on the given territory, i.e. have a main residence on it (Hauptwohnung), and have an active right to vote (i.e. are German in the sense of article 116 of the Main Law:[18] have reached the age of 18, live in the community[19] and the right to vote has not been legally taken away from them). These restrictions are connected with the fact that citizens are vested with political legal capacity and can participate in the realization of such political rights and duties as the right to vote, the right to participate in civil initiative (Buergerbegehren), the right to participate in a referendum (Buergerentscheid),[20] the duty to carry out certain activities for the community on a volunteer basis (Ehrenamt), and the duty to participate in activities supporting community interests on a volunteer basis (Ehrentaetigkeit).[21]

It is remarkable that the German approach to the forms of citizens and residents participation in the local self-government presupposes not only their rights, but also their duties.

Both concepts residents and citizens are also used in the Russian legislation on local self-government. At the same time, neither the Federal law of 1995 nor the new Federal Law on local self-government state cardinal differences between the municipal-legal statuses of citizens and residents.[22] However, the attempt to view citizens participation in administration of local self-government not only through the perspective of rights but also duties is partly present in the norms of the Russian Federal law on local self-government (the part regulating the power of the authorities of urban districts and settlements to make a decision to involve citizens in execution of socially important activities Art. 17, C.2). However, citizens participation in execution of such activities is voluntary. Therefore, the duty implied in this case is the duty voluntarily accepted by a resident.

Germany and Russia have a different evaluation of legal meaning and forms of citizens participation in solving municipal-territorial reformations. In Russia, such reformations are executed according to the law of the federal subjects. The new Federal Law on local self-government states that changing the borders of urban districts and settlements which might result in transforming the borders of a given territory should be executed only if the population of these settlements or localities had given their consent for it (Art. 12). Uniting two or more settlements or splitting a settlement also can be realized, given the population of each settlement had given their consent (Art. 13, C. 3, 5). The issue of an urban settlements receiving (or losing) the status of an urban district is also decided by consent of the population of the settlement and the population of the municipal district that includes in or excludes out of its composition the given urban settlement (Art. 13, C. 7). The populations consent can be a deciding factor: neither border changes nor reformations can be conducted without it. Voting for or against changing borders (reformations) is executed according to a special procedure, stated by the Federal law on local self-government (art. 24).

In Germany, changing the borders of territorial communal corporations is executed not only by law but also based on the law (given the agreement between the communities and permission of law enforcement organs). In addition to that, despite the fact that municipal-territorial reformations are also executed given the permission of the community (the procedure itself must also be organized in such a way so that the sense and purpose of opinion research would not be deformed[23]), the negative opinion regarding territorial deformations itself is not a serious barrier blocking the whole process. The common good demands (Gruenden des oeffentlichen Wohls) are the deciding factor. Given these demands, territorial reformations can be conducted even against the communitys will. However, such a decision must necessarily be supported by law.[24]

As we can see from the above-quoted comparison, the participation of German communities in municipal-territorial reformation procedures, at the first sight, looks less democratic than that of the population of Russian municipal formations. However, it seems that the very mandatory participation of the population in the given procedure (with a deciding vote) is not yet a criterion of democratic municipal-territorial reformations. Necessity and reason for administration of reformations are dictated not only by the will of population of a certain territorial entity, but also by the states economic and social politics, requirements of increasing government efficiency and other factors, denoted by a concise and evaluative concept of common good or common interest in the German variant. That is why the German experience of regulation procedures of municipal-territorial reformations brings to mind the issues of improving the Russian model suggested by the new Federal Law.

Types and statuses of municipal formations

As has been mentioned above, it is quite remarkable that the new Russian Federal Law uses the principles of functional reform to define the statuses of municipal formations of various types. The key issue here is the transfer of corresponding powers to the government level where they will be executed most effectively and economically. Besides, a combination of responsibility for administering the given power and financing its execution is assumed from the beginning. Thus, the Law covers a number of questions of local importance for urban and rural settlements, on the one hand, and metropolitan areas, on the other hand. Urban districts have a special status, since they are not included in the composition of the metropolitan area and are vested with both settlement and area powers.

In general, the idea of type-defined statuses of municipal formations is quite in line with the European approach to defining the nature and tasks of municipalities. For instance, the self-government rights for communities and unions of communities are understood differently in the German Main Law. The communities have an all-encompassing competence (Allzustaendigkeit), while unions of communities areas/counties are given self-government right within their legislated tasks and based on certain laws (Art. 28, Paragraph 2 of the German Main Law). Communities also differ by the volume of powers they are vested with. Accordingly, there exist: area/county communities and towns, i.e. parts of the area/county (kreisangehoerige Staedte und Gemeinden), and non-district/non-county towns (kreisfreie Staedte), or towns with area/county rights. The latter territorial formations are not just bigger in population size and more socioeconomically important, they have the same status as counties do and, therefore, administer both community and area/county tasks. The model of a town with area rights is used in the process of defining the status of an urban district by the Russian local self-government reform.

The Russian approach to distribution of powers between settlements and areas is also quite different from its foreign counterpart. The subsidiarity principle is discarded by the law where the areas of competence of municipal formations are concerned. Both local issues lists those of settlements (Art. 14 of the Law) and municipal areas (Art. 15) are presented as exhaustive. Thus, the Russian law did not receive the idea presented in the European Local Self-Government Charter (further referred to as the Charter) and in the German legislation stating that the lower level of public authority (closest to the population) should solve all problems which are not excluded from its competence and not attributed to the competence of other organs or power. It means that this level of public authority has priority where the distribution of powers is concerned: other levels will be included only at the point when a certain task is attributed to them with considerations of tasks size and nature, and well as general requirements of efficiency and economy of funds (Art. 4 Paragraphs 1-3 of the Charter). Thus, it is impossible to present an exhaustive list of powers of the lower local self-government level. Evidently, that is the reason why German legislators use a general and indefinite formulation when defining communities competencies all business of the local community. Besides, the limits of all business of the local community constituting the base of community competences are not rigid and may therefore change. There does not exist a once-given sphere of municipal tasks; powers and competencies can be redistributed depending on socioeconomic change and dictated by the requirements of the public good.

The Russian variant of distribution of powers between settlements and areas does not provide any space for law administrators to use in case of legislative collisions or gaps. The formula used in the Law (the local self-government organs of both settlements and areas have the right to solve other tasks, not attributed to the competency of local self-government organs of other municipal formations and excluded from the own competency by the federal law and the law of federal subjects, only if they have their own material resources and financial means[25]) does not neutralize the contradiction and cannot be viewed as an interpretation of the subsidiarity principle.

Distribution of powers in the local legal regulation sphere

Both Russia and Germany face the issue of distributing powers in the local legal regulation sphere among the Federation, federal subject and municipal formation levels. On the one hand, differences between different federalism models are predefined by different solutions of that issue. In Germany, the legal regulation of a communal self-government (just as providing self-government institutional guarantees) lies within the competency of lands, while in Russia, defining general principles of local self-government organization is a power shared by the Federation and its subjects (art. 72, part 1 of the Russian Constitution). Accordingly, the Russian Federation initially possessed a wide range of legislative powers in the mentioned sphere. Local self-government organs were given separate state authorities directly through certain laws, the area of their competencies was also directly defined by the Federation without any participation from the federal subjects.

On the other hand, the Russian lawmaking role of municipal formations is significantly different from that in Germany. According to the prevailing German opinion, communal self-government is viewed as mediated land government, while the lawmaking of communities and community unions is viewed as administrative norm-making. In Russia, local self-government is stably perceived as an independent kind of public authority which predefined a special approach to the lawmaking activity of municipal formations, as well as to the transfer of some legislative questions to the municipal legal regulation level.

If we examine the distribution of regulative powers in the organization of local self-government in the Russian Federation and analyze it through the perspective of the German experience, we can conclude that the distribution stated in the Federal Law of 1995 was not optimal and needed improvement. I have already proposed the following ways to improve the Russian model of distributing lawmaking functions in the mentioned sphere: overcome fuzziness in the distribution of lawmaking powers; reduce egregious centralization of legal regulation in some issues and excessive centralization in some others; provide a more effective and active use of regional legislation in the process of regulating local self-government issues (which is also caused by necessity of consideration of regional peculiarities in the process of defining the legal bases for organization of local authorities); free municipal lawmaking from alien legislative functions.[26]

When formulating distributed powers in the legal regulation sphere of local self-government, the legislator of the new law proceeded from the necessity of improving the previously existing model. However, the suggested variant of redistributing functions in the mentioned sphere can barely be called optimal.

There is a serious tendency toward federal centralization of all legal regulation issues of local self-government and considerable reduction of legislative powers of the federal subjects (for instance, in regulating issues of municipal service, status of elected representatives of local self-government, order of recalling an elected member of local self-government, order of referendum organization, order of registration of statutes of municipal formations, order of administering municipal-territorial reformations and others).

Even though local issues of settlements, areas, metropolitan areas mostly deal with executive or governmental matters, the bills considerably extends the lawmaking powers of local self-government organs. Municipalities do not get rid of legislative functions (alien to them) and, moreover, they receive additional opportunities to fill in the gaps left for them by the federal law. Thus, the municipal formation statute suggests regulating bases and procedures of recalling an elected member of local self-government (Art. 24, C. 2). The order of organizing and executing such matters as lawmaking initiative (Art. 26, C.1, Part 1), territorial public self-government (Art. 27, C. 11), public hearings (Art. 28, C. 4), scheduling and conducting an assembly, conference, poll of citizens (Art. 29, C. 5; Art. 30, C. 2; Art. 31, C. 4 and many others), etc. are all transferred to the municipal level of legal regulation and are completely excluded from the legislative powers of the federal subjects.

Reduction in the sphere of legislative regulation of local self-government issues by the federal subjects authorities cannot be justified either practically or theoretically. The federal subjects legislative power in the issues of organizing local self-government follows from the constitutional nature of shared powers, and stating common principles of local self-government organization is one of them (Art. 72, Part 1 , Art. 76 Part 2 of the Russian Constitution). In the process of regulating the issues of municipal power organization, when regional specifics are crucially important, it is hard to overestimate the role of the federal subjects. Since the Federal Law of 1995 had become active 8 years ago, the regions created a stably functioning vast legislative system which regulates various issues of municipal authority organization.[27] Beyond doubt, it needs improvement rather than radical reorganization.

On the other hand, excessive extension of municipal formations lawmaking powers and vesting them with almost legislative functions does not correspond with the main purpose of local self-government, that is, with executive (governmental) direction of its powers.

Federal regulation limits on local self-government

In the Russian Federation, the tendency to extend federal regulation of local self-government issues accompanies the absence of clarity in the new federal legislation system. The object of the new Laws regulation considerably exceeds the limits of common principles of local self-government organization. It cannot be acknowledged to be justified, since, even according to the new conception of local self-government legislation, federal regulation of organization of local authorities cannot be exhausted by the Law On general principles Realizing a variety of local self-government powers in certain areas, as well as bases of organizing and administering municipal elections or local referendum, municipal service issues, regulating the legal side of municipal property, local finances and budget, and many other issues, are all subjects of other federal laws. Besides, setting common principles of local self-government organization is also a regional legislators task (according to the idea of shared powers).

Including new norms regulating separate procedural issues of municipal organization in the Federal Law (for instance, those concerning the order of changing borders of municipal formations, reforming municipal formations, local referendum procedures, voting on recall, order of contract deputizing of administration head, and other issues) seems to be excessive and breaking the logic of the Russian legislation on local self-government. It is true even more so, since the laws task to regulate a considerable number of procedural issues eventually ends up being unresolved: it is impossible to present necessary detailed regulations of such varying procedural issues in one law. As a result, the order of municipal-territorial formations is marked in a quite sketchy way, most part of procedural issues is beyond the limits of the Federal Law but, nevertheless, the Law does not allow for different regulations of the issues (Art. 13, C. 2).

Limits of organizational insulation of local governments

The new Federal Law moves toward discarding the principle of absolute organizational insulation of local governments from federal state authorities. In case the functions of public authority cannot be executed by local self-government organs and there is created a threat of human rights violation, the mechanisms of intervention by government should function. This trend is generally in accordance with the democratic principles of the Charter and the German approaches. Organizational insulation of German communal corporations from the state does not eliminate the double status of communal unions areas (whose government organs also function as lower level organs of direct land management). This principle is not considered violated in the process of organization of government in the cities-lands, where the state and communal activities are not segregated and local government administers the powers of a city-land as those of a community, a union of communities and a land in one.

Organizational insulation coexists with the developed system of administrative supervision over communal self-government, encompassing various forms of preliminary and subsequent inspection. Specific means (forms) of preliminary legal supervision over statutes and provisions adopted by communal corporations within their lawmaking autonomy are the following: bringing the act to the notice of legal regulation organs (Anzeige), presenting the act to the legal regulation organ (under the condition that the act will come in effect after a certain period since the moment of presentation) (Vorlage), enacting the act by the legal regulation organ (Genehmigung). A peculiar instrument of indirect legal supervision is developing model statutes and provisions on the land level (Mustersatzungen): in case of their use, the communal corporation withdraws its demand to go through the whole procedure of official enactment of the adopted act. The legislation and practice of German lands pays special attention to the means/forms of subsequent supervision over the legality of communal corporations activity, such as: the right to demand disclosure of information (Informationsrecht); the right to appeal the communitys decision (Beanstandungsrecht); the right to give directions (Anordnungs-, Anweisungsrecht), compulsory administration of a task (i.e., decision of a legal regulation organ) at the expense of communitys funds (Ersatzvornahme); appointment of a plenipotentiary representative (Bestellung eines Beauftragten); pre-term dismissal of communal government organs.

State in local self-government Federal Law of 1995, the principle of inadmissibility of state authorities and officials administering local government (Art. 14,C. 5) had not been confirmed by the new Law. In this connection, the emphasis on unconditional prohibition of limiting local government rights is shifted to possible limiting of those rights basing on the principle of proportionality to the degree which is necessary to protect the bases of constitutional organization, countrys military defense and security of the state (as has been suggested by Art. 3 C. 3 of the Law). Participation of state authorities and officials in forming local self-government organs, as well as dismissing local officials, is permitted in certain cases and in the order, suggested by the Federal Law (Art. 34, C. 4, Art. 37, Subc. 5, 11). In addition, there is stated a possibility that in certain cases, some powers of local governments can temporarily be transmitted to the authorities of the federal subjects; the federal subjects authorities can also administer early termination of office of a representative organ, municipal formation and/or local administration head within the limits of their official responsibilities (Art. 75 of the Law).

At the same time, we cannot state that bases and order of state intervention into local government issues are well thought through. There are enough unanswered questions concerning the new procedure introduced by the arbitrary court of the RF: a federal subject might be initiated a temporary financial administration for up to one year, if due to decisions or actions (inaction) of local self-government organs, municipal formations have overdue debts which, as stated by the Budget Code of the RF, exceed 30% of municipal formations own income in the fiscal year or 40% of budgetary allocations in the fiscal financial year, given that financial obligations of the federations and federal subjects budgets to the local budget are properly executed (Art. 75, C. 1, Subc. 2 and C. 4 of the Law). In addition to that, neither the new Arbitrary Procedural Code nor the Budget Code suggest corresponding procedures and powers for the arbitrary courts. As for the new forms of control and supervision over the legality of local self-government (including those above-mentioned and proven to be successful in Germany), they have not yet been settled in the Russian legislation.

* * *

This article has examined some modern trends of local government development in the RF, considering the German experience and based on the complex analysis of the problems connected with further realization of new municipal reform trends. It is highly important to define these problems at the current stage of formation of new legislation on local government, since the further success of the reform will greatly depend on it. Democratic development experience of the Federal Republic of Germany presents a rich material for elaborating and achieving own program benchmarks in the matters of local government organization.


*Elena Vladimirovna Gritsenko, Doctor of Science (jurisprudence), professor of state law department of Saint-Petersburg State University.

[1] Conception of distribution of powers between the federal government, state authorities of the federal subjects and local self-government bodies of power on general issues of organization of state authorities and local self-government organs. See the working version of the Conception, forwarded by the Second Director of the Presidential Administration D.N. Kozak to the members of the State Council of the Russian Federation on September 14, 2002. (letter #A4-11962Pkd).

[2] Federal law O vnesenii izmenenii i dopolnenii v Federalnyi zakon Ob obshchikh printsipakh organizatsii zakonodatelnykh (predstavitelnykh) i ispolnitelnykh organov gosudarstvennoi vlasti subektov Rossiiskoi Federatsii from July 4, 2003. #95-FZ // Svod zakonov Rossiiskoi Federatsii. 2003. #27 (part 2), Art. 2709.

[3] Federal Law Ob obshchikh printsipakh organizatsii mestnogo samoupravleniia v Rossiiskoi Federatsii from October 2, 2003 #131-FZ // Ros. Gaz. October 8, 2003.

[4] Full texts of bills: http://www.legislature.ru (electronic resource) October 30, 2003; http://www.minfin.ru/fvr/fin_ref.htm October 10, 2003.

[5] Nassmacher H., Nassmacher K.-H. Kommunalpolitik in Deutschland. Opladen: Leske+Budrich, 1999. S.62.

[6] 71 of Lower Saxony community law from October 18, 1977 ((Nds. GVBl. S. 497); 59 of the Law of communities in the land of Baden-Wuertemberg from December 22, 1975 (GBl. v. 27.01.1976, S.1).

[7] 7 of Communal constitution of Brandenburg from June 30, 1994 (GVBl. I, S. 122); 6 of Communal Constitution of the land of Mecklenburg-Vorpommern from November 13, 1995 (GVBl. I, S. 537).

[8] Scholler H. Grundzuege des Kommunalrechts in der Bundesrepublik Deutschland. Heidelberg: C.F. Mueller, 1990. S.47.

[9] In detail on functional reform see: Scholler, Grundzuege , S.52 ff.; Nassmacher /Nassmacher, Kommunalpolitik , S.26-27.

[10] Federal Law Ob obshchikh printsipakh organizatsii mestnogo samoupravleniia v Rossiiskoi Federatsii from August 28, 1995 // // Svod zakonov RF. 1995. #35. Art. 3506; 1996. #17. Art. 1917; #49. Art. 5500; 1997. #12. Art. 1378; 2000. #32. Art. 3330 (Further Federal Law on local self-government of 1995).

[11] Commune is used here and further as a collective term for denoting territorial communal corporations of all types.

[12] See, for instance: 13, paragraph 1 of the Law on Brandenburg Communities (GVBl. I 1993, S.398; 1999, S.90, 98); Lower Saxony Law on Communities (Nds. GVBl. 1996, S.382; 1999, S.74).

[13] See, for instance, 14 of the Law on Brandenburg Communities.

[14] Ibid., 16.

[15] Ibid., 17.

[16] In some laws on communities, even children and youth are given the right to hold speeches in hearings. ( 18, paragraph 1 of the law on communities of Brandenburg).

[17] Ibid., 19.

[18] At this time, this right is valid for all residents of the community who are EU citizens.

[19] Sometimes, land municipal legislation sets a small local residence requirement from three to six months. For instance, 7 of the Law on municipal elections in the land of Nordrhein- Westfalen (GV NW 1998, S.454; 1999, S.412) states that it is necessary to reside not less than three months on the territory of the election district.

[20] In general, the subject of civil initiative and legislative referendum is not an individual, but a unity of communitys citizens township ( 20 of the Law on Brandenburg communities). Thus, the meaning of the medieval-born Buergerschaft the collective subject of certian self-government rights is still preserved these days.

[21] See, for instance, 26 of the Law on Brandenburg communities.

[22] The new Federal Law mentions the population and residents, as opposed to the citizens, only in regard to realization of right to participate in public hearings (art. 28). In this connection, we can assume that the legislator creates certain preconditions for differentiating between the rights of citizens and residents in administering local self-government.

[23] In detail, see: Scholler, Grundzuege ., S.48 ff.

[24] See, for instance: Art. 98 of the Constitution of the land of Brandenburg (GVBl. I 1992, S.298; 1999, S.98).

[25] Art. 14, c. 2, art. 15, c.3 of the Law.

[26] See, in detail: Gritsenko E.V. Mestnoe samoupravlenie i gosudarstvo v usloviiakh federalizma: sravnitelno-pravovoe issledovanie na primere Germanii i Rossii: Avtoref. disser. doktora iurid. nauk. SPb. 2002, p. 13.

[27] In regard to regional legislation on local self-government, see, for instance: Nauchno-prakticheskii kommentarii k Zakonu Irkutskoi oblasti O mestnom samoupravlenii v Irkutskoi oblasti. Irkutsk, 2001. pp. 10-15 and others.


 
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