B Explanatory memorandum
by Mr Pieter Omtzigt, rapporteur
1 Introduction
1. The subject of the motion for
a resolution underlying the present report, which was tabled on
27 January 2022, before the full-scale invasion of Ukraine by the
Russian Federation, is the legitimacy and legality of the amendments
to the Russian Constitution enacted in July 2020, including an ad hominem provision waiving the presidential
term-limits. The waiver allows Mr Putin – who has been continuously
in power as President or Prime Minister since 2000 – to remain in
office as President until 2036, when he will be 83 years old.
2. Since the start of the full-scale Russian war of aggression
against Ukraine on 24 February 2022, the question of the legitimacy
of President Putin’s possible re-election in the next presidential
election in 2024 has taken on particular relevance. The authority
of President Putin has already been put into question both nationally
and internationally, due to the legally and morally reprehensible
decision to launch a war of aggression against Ukraine and the obvious
miscalculation of the risks involved. President Putin and his visibly reluctant
inner circle appearing on television during the meeting of the National
Security Council on 21 February 2022
Note clearly underestimated the resilience
of the people of Ukraine and their preparedness to fight for their
independence and their very existence as a nation. President Putin
also underestimated the determination of the Western countries to
support Ukraine with weapons and ammunition. In addition, the military
setbacks the Russian forces have suffered so far at the hands of
the heavily outgunned Ukrainians have shown for all to see the state
of disorganisation and corruption of the Russian military. The rebellion
by the Wagner group of mercenaries has demonstrated the weakness
of President Putin, even if its leader and his main lieutenant have
perished in a plane crash in the meantime.
3. Members of the President’s inner circle who are aware of the
threats to their country posed by the decisions of the President
related to the aggression against Ukraine may well avail themselves
of the unlawfulness of the amendments to the Russian Constitution
enacted in July 2020 – in particular the waiver of the Presidential
term limit that allows Mr Putin to run for president again in 2024
and potentially remain in office until 2036 – in order to rid themselves
of a leader whose actions are becoming more and more of a threat
to the future of Russia, including the welfare of its elites. Such
motivation for the more rational elements within the inner circle
of power to rid themselves of President Putin could further be strengthened
by the increasing momentum of the international community’s plans
to set up an
ad hoc international
tribunal for the crime of aggression, to hold the political and
military leadership of the Russian Federation to account for the
unprovoked military aggression against Ukraine.
Note Those who contribute to ending the
war would be doing a great service both to Russia and to international
peace and security and could expect to be treated more leniently
by the future tribunal.
4. The explicit international recognition of the illegality of
these constitutional amendments, which may in fact amount to “unconstitutional
constitutional law” (a concept originally developed by the constitutional
or supreme courts of the United States, Germany and Austria, and
which has been recognised in numerous jurisdictions
Note) would further delegitimise Vladimir
Putin’s ambition to remain President of the Russian Federation indefinitely,
provided that he can continue to suppress any serious political
opposition.
5. The question of the legitimacy of the July 2020 constitutional
amendments has already been the subject of an Opinion by the European
Commission for Democracy through Law (Venice Commission). I will summarise
its main findings in chapter 2 of this report. In chapter 3, I will
address the more general issue of the need for term limits in presidential
systems of government, which has been the subject of another Study
by the Venice Commission. It should be noted that both studies of
the Venice Commission were produced before Russia was expelled from
the Council of Europe.
Note
2 Venice Commission Interim Opinion of
23 March 2021
6. The Opinion in question was
requested by the Assembly’s Committee on the Honouring of Obligations and
Commitments by Member States of the Council of Europe (Monitoring
Committee) in May 2020 in the framework of its work on the Russian
Federation. This request was intended to supplement the earlier
opinion requested by the Committee on Legal Affairs and Human Rights
on the amendments to Articles 79 and 125 of the Russian Constitution
(Opinion CDL-AD(2020)009, adopted
on 18 June 2020). This request, made in the framework of the committee’s
work on the implementation of the judgments of the European Court
of Human Rights, had been limited to those (then draft) amendments
to the Russian Constitution related to the execution, by the Russian
Federation, of the judgments of the Court.
7. The Venice Commission, at the time, benefited from the full
co-operation of the competent Russian authorities, including the
Constitutional Court, the Ministry of Justice and Parliament.
8. It studied and assessed only the constitutional changes themselves
and the procedure followed for their adoption, and not the implementing
legislation which was then still under preparation – hence the working
title “Interim Opinion”. The Venice Commission’s offer of assisting
the Russian side also with the drafting of the implementing legislation
(see paragraph 189 of the Opinion) was not taken up.
9. The Venice Commission strongly criticises both the procedure
in which the amendments were adopted and their content.
2.1 Procedural
issues
10. As regards the procedure applied
for the adoption of the constitutional amendments, the Venice Commission
finds that in view of the importance of the amendments and their
impact, the regular constitutional amendment procedure should have
been applied. The regular constitutional amendment procedure (laid
down in the 1998 Law on the Order of the Adoption and Entry into
Force of Amendments to the Constitution of the Russian Federation)
notably requires the convocation of a Constitutional Assembly and
that there shall be specific amending laws on the different changes
proposed, rather than a single en bloc vote
on all amendments. Instead, a novel ad
hoc procedure in three stages was introduced by the Amending
Law. In the first stage – the drafting of the amendments and their
adoption by both houses of parliament and the constituent entities
of the Federation – followed the normal constitutional amendment
procedure, until the entry into force of Article 3 of the Amending
Law. In the second stage, from the moment of the entry into force
of said Article 3, a sui generis procedure
established by Article 3 of the Amending Law was triggered. This
procedure involved the President asking for the Constitutional Court’s
opinion as to the compatibility of the amendments with Chapters
1, 2 and 9 of the Constitution and the compatibility with the Constitution
of the procedure for the entry into force of Article 1 of the Amending
Law (which lists the substantive amendments to the Constitution).
The Constitutional Court was required to provide its conclusions
within seven days. Once the Constitutional Court’s conclusions were
given, Article 2 of the Amending Law entered into force and the
third stage, governed by Articles 2 and 3 of the Amending Law, namely
the ad hoc nationwide vote,
was launched – a single en bloc vote
on all amendments that in addition was not subjected to the strict
procedural requirements applicable to referendums.
11. The Venice Commission noted that:
“the ad hoc nationwide vote was subject to much less elaborate
and detailed rules than a referendum would have been. This resulted
in a substantial reduction of procedural guarantees, which are inter
alia designed to ensure a degree of balance in how the issues are
presented, and thus increase the legitimacy of the result of the
referendum. The Federal Constitutional Law on Referendums would
have required sufficient airtime also for opponents of the amendments
(Article 59 (9)). Article 60 (5) of that Law would have obliged
State institutions to remain neutral. Article 2 of the Amending
Law establishing the ad hoc rules for the all-Russian vote ensures
airtime to the Central Electoral Commission only and has no provisions
on the neutrality of state bodies” [and]
“under the rule of law it is inappropriate to introduce
a new type of referendum for one particular revision of the Constitution.
Even if the all-Russian vote did not replace the vote by the Assembly
and the constituent entities of the Federation, the Commission recalls
that, as indicated in the 2020 Revised Guidelines on the Holding
of Referendums, ‘referendums cannot be held if the Constitution
or a statute in conformity with the Constitution does not provide
for them, for example where the text submitted to a referendum is
a matter for Parliament’s exclusive jurisdiction’.”Note
“[t]he Amending Law also
derogated from Article 2 (2) of the 1998 Federal Law N 33-FZ On
the Procedure for Adoption and Entry into Force of Amendments to
the Constitution of the Russian Federation, which provides that
there should be specific amending laws on interrelated topics, rather than
a single en bloc vote on all amendments. The Comments [author’s
note: by the Russian government side] insist that the amendments
are all interrelated with each other and therefore the requirement
of Federal Law N 33-FZ is met. The Venice Commission cannot follow
this argument as the amendments cover a very wide range of issues.”Note
12. Also, according to the Venice
Commission, the Amending Law is at odds with Article 135 of the
Russian Constitution in that the Constitutional Court’s conclusions
and the all-Russian vote foreseen in Articles 2 and 3 were in fact
irrelevant for the entry into force of the amendments after their
adoption by the two houses of parliament and the constituent entities
of the Federation.
Note
13. I should like to point out that the speed with which these
amendments were adopted is also quite remarkable: in a speech on
15 January 2020, President Putin proposed amending various provisions
of the 1993 Constitution. By decree of the same day, he established
a working group to prepare proposals for such amendments. On 20
January 2020, the President submitted the draft Amending Law to
the State Duma. Three days later, the draft passed the first reading.
On 2 March 2020, the President proposed additional amendments to
the Constitution. The draft, with these new amendments, passed the
second and third readings in the State Duma on 10 and 11 March 2020.
Approval by the Council of Federation followed on 11 March and by
the legislative councils of all federal subjects of the Russian
Federation on 12 and 13 March. On 14 March 2020, it was enacted
by the President of the Russian Federation and published. On the
same day, the President sent the request to the Constitutional Court
of the Russian Federation to verify the compatibility of the Amendment Law
with the Constitution; the Constitutional Court confirmed this on
16 March 2020. The popular vote was originally scheduled for 22
April 2020. It was finally postponed due to the Covid-19 pandemic
and took place from 25 June until 1 July 2020. The question put
to the vote was simply: “Do you approve
the amendments to the Constitution of the Russian Federation?”,
with no possibility to give different answers to such disparate proposals
as the constitutional recognition of social rights, the prohibition
of same-sex marriage and the ad hominem provision
waiving the constitutional term limits for the President.
14. As regards the procedure followed for the adoption of the
constitutional amendments, the Venice Commission therefore concluded
that:
“[i]n view of the subject
matters which were covered, a Constitutional Assembly should have
been convened under Article 135. As a Constitutional Assembly was
not convened, the Amendments were adopted, according to Article
136, after their adoption by Parliament and the constituent entities
of the Federation. Following these two steps, the Amendments had
to enter into force under Article 136. A negative outcome of the
additional steps, i.e. the review by the Constitutional Court and
the all-Russian vote, could not prevent the entry into force of
the Amendments. The procedure used to amend the Constitution creates
an obvious tension with Article 16 of the Constitution which safeguards
the ‘firm fundamentals of the constitutional system of the Russian
Federation’.”Note
2.2 Substantive
issues
15. The substantive changes adopted
following the novel procedure described above concern the following areas,
following the order of the explanatory report of the Amending Law:
- the position of candidates/office
holders;
- the structure of State bodies, their competences and mutual
relationships;
- the protection of social rights;
- the basic values of the State;
- the relationship between Russian national law and international
law.
16. In view of the subject-matter of the present report and the
fact that the final point (relationship between Russian national
law and international law) has already been covered in the Venice
Commission Opinion adopted on 18 June 2020 on draft amendments to
the Constitution related to the execution in the Russian Federation
of decisions by the European Court of Human Rights
Note and in the Assembly’s last report on
the implementation of judgments of the European Court of Human Rights,
Note I will limit myself to assessing
the first substantive issue, namely the position of candidates and
office holders, or more precisely the
ad
hominem waiver of the constitutional term limit of President
Putin.
17. The new wording of Article 81 (3) prevents a person from holding
the office of the President for more than two terms. But this limit
is not applied to current or former Presidents, that is (though
they are not named explicitly) MM. Putin and Medvedev. According
to Article 81 (3.1), this provision “is
applied to the person having held or holding the post of the President
of the Russian Federation without taking into account the number
of terms he (she) had held or is holding this post by the time of
coming into force of the amendment to the Constitution of the Russian
Federation introducing the relevant limitation, and does not exclude
for him (her) the possibility to hold the post of the President
of the Russian Federation during the terms allowed by this provision”.
18. As the Venice Commission points out, “[t]his provision creates
an exception for the current and previous holders of the office
to stand for two completely new terms, regardless of the number
of their past mandates. As this provision applies to two specific
persons, this amounts to an ad hominem constitutional
amendment.”
19. It should be noted that without this amendment, Mr Putin would
not be able, in 2024, to run for another 6-year presidential term,
as the Russian Constitution limited the presidency to two consecutive
terms. Mr. Putin had served two consecutive 4-year terms between
2000 and 2008 and will have completed two consecutive 6-year terms
between 2012 and 2024.
3 The
importance of presidential term limits for safeguarding democracy
20. In its 2021 Interim Opinion,
the Venice Commission refers back to its earlier work on the relationship between
the limitation of mandates and democracy.
Note It points out that limiting
the mandate of the president of a country to one mandate with the
right to one re-election is standard practice. In most cases (for
example Czech Republic, Finland, France, Latvia, Lithuania, Romania,
Slovak Republic) more than two consecutive mandates are excluded;
in some countries (for example Austria, Bulgaria, Germany, Poland),
no person can run for a third or further term even when it is not
consecutive. In some countries, any re-election at all is excluded
(for example Mexico, the Republic of Korea and Switzerland).
21. In its 2018 Study on term limits,
Note the Venice Commission pointed out that:
“[p]residential term-limits are
common in both presidential and semi-presidential systems, and also
exist in parliamentary systems (both where the Head of State is
directly and indirectly elected), while in the latter systems they
are not imposed on prime ministers, whose mandate, unlike those
of Presidents, may be withdrawn by parliament at any time. In presidential
and semi-presidential systems, term-limits on the office of the
President therefore are a check against the danger of abuse of power
by the head of the executive branch. As such, they pursue the legitimate
aims to protect human rights, democracy and the rule of law.”Note
22. I cannot but agree with the Venice Commission when it found
that:
“[t]here are good reasons
why presidential systems contain strict mandate limits. In a presidential
system which grants substantial executive powers to the president,
the longer the incumbent remains in office, the more cemented his
or her power becomes.”Note
“Term limits aim to protect
a democracy from becoming a de facto dictatorship. Furthermore,
term limits may strengthen a democratic society, as they impose
the logic of political transition as a predictable event in public
affairs. They can be “important mechanisms to safeguard against
“winner-take-all” politics”. They also keep alive the opposition
parties’ hope of gaining power in the near future through institutionalized
procedures, with little incentive to seize power in a coup. Term
limits therefore aim to protect human rights, democracy and the
rule of law, which are legitimate aims within the meaning of international
standards.”Note
“in the light of the comparative
analysis of the constitutions of the 58 countries under consideration, abolishing
limits on presidential re-election represents a step back in terms
of democratic achievement, at least in presidential or semi-presidential
systems. By eliminating an important protection against distortive
concentrations of power, abolishing term limits also risks undermining
various aspects of the human right to participate in public life.”Note
23. Very importantly, and of special
relevance to the case at hand, the Venice Commission stressed that:
“[t]o the extent that constitutional
amendments strengthening or prolonging the power of high offices
of state are proposed, such amendments (if enacted) should have
effect only for future holders of the office, not for the incumbent.”Note
24. As we have seen above (paragraph 17), the Amending Law, whilst
introducing a two-term limit, creates an exception for the current
and previous holders of the office to stand for two completely new
terms, regardless of the number of their past mandates. This provision
amounts to an ad hominem constitutional amendment
for the benefit of two specific persons.
25. The Russian authorities, in their replies to the Venice Commission
summed up in its 2021 Interim Opinion, stressed that the removal
of term limits was adopted by the Federal Assembly, approved by
all the constituent entities of the Russian Federation and approved
by the sovereign people in a nationwide vote. The term limits should
not be applied retroactively by counting the mandates of the current
and former Presidents. Another mandate of the incumbent or former
president will depend on the will of the citizens expressed in direct elections.
The Russian authorities insisted that the constitutional principle
of democracy implies the possibility for the people to exercise
the right to elect in free elections the person they deem most worthy
for the post of the head of state and that the participation of
an incumbent does not prejudge an electoral victory. They also considered
that the amendments result in a redistribution of public authority
between the various branches of power, in particular from the president
to parliament. These significant changes justified a transitional
rule not to take into account the presidential terms before the
amendments. The Constitution provided sufficient guarantees as to
parliamentarism, multiparty system, the presence of political competition,
the separation of powers, and the provision of rights and freedoms
by independent courts, including through constitutional proceedings.
The Russian authorities finally pointed out that leaders in other
countries (for example Germany’s Chancellor Merkel, Finland’s President
Kekkonen and Luxembourg’s Prime Minister Juncker) held office for very
long periods.
26. In its 2018 Study on term limits, the Venice Commission pointed
out that in its member States:
“term-limits
do not apply to the Head of government (usually the prime minister),
who technically may be removed at any time, in contrast to the rigid
and difficult impeachment procedures under presidential systems.
Therefore, the danger of abuse of power by the Head of the executive
branch is greater under presidential regimes than in parliamentary
ones.”Note
27. Even the long terms of office of Prime Ministers in parliamentary
systems such as Germany (Chancellors Merkel and Kohl) or Luxembourg
(Mr Juncker) did not reach anywhere near the length of Mr Putin’s
potential time in office, from 2000 until (under the newly changed
rules) 2036, with only the short interruption between 2008 and 2012
when Mr Medvedev acted as President and Mr Putin as Prime Minister.
By contrast, the presidency of President Franklin D. Roosevelt,
who won four consecutive US presidential elections, gave rise to
the introduction of a two-term limit in the United States of America.
Similarly, Finland introduced a presidential limit of two terms
of six years in the 1990s.
28. The Russian authorities’ argument that the constitutional
amendments brought so many changes in the redistribution of power
from the president to the parliament that the abolition of the term
limit in favour of the incumbent would be justified does not look
convincing either. The imprisonment or forced exile of all remaining politicians
who truly oppose the existing regime speak for themselves. The Assembly
has already studied the case of Alexei Navalny and other political
prisoners and is now looking into the fate of Vladimir Kara-Murza. Even
the most prestigious institutions of civil society, including Memorial
and the Moscow Helsinki Group are closed and their activists in
prison or in exile. Especially since the start of the Russian aggression
against Ukraine, the State Duma and the Federation Council have
completely failed in holding the President and his inner circle
to account in any way.
29. Finally, the authorities’ assertion made in 2021 that the
Russian Constitution provides sufficient guarantees as to “parliamentarism,
multiparty system, the presence of political competition, the separation
of powers, and the provision of rights and freedoms by independent
courts” reads like mockery in light of the accelerating descent
into authoritarian rule since then.
30. Interestingly, the 2018 Study on term limits is based on a
different perspective than that underlying the 2021 Interim Opinion.
However, the Venice Commission arrives at the same result looking
at the issue from either perspective.
31. The 2018 Study was prepared in response to a request by the
Secretary General of the Organization of American States, who asked
the Venice Commission to undertake a study on the right to re-election,
to answer four questions in particular:
- Does a human right to re-election exist? If so, what are
the limits to this right?
- Do term limits constrain the human and political rights
of aspirant candidates?
- Do term limits constrain the human and political rights
of voters?
- What is the best way to modify term limits within a constitutional
State?
32. By contrast, the 2021 Interim Opinion was prepared following
a request by the Assembly’s Monitoring Committee, which was worried
about the ad hominem waiver
of the presidential term limit in the Russian Federation, much like
the movers of the motion for a resolution underlying this report.
33. In its 2018 Study (paragraphs 94 and 95), the Venice Commission
recognised that:
“[i]n modern
democracies, the sovereignty of a nation resides in the people.
All state authority shall emanate from the people. No one can therefore
argue to be entitled to run for re-election after a first mandate
if the constitution provides otherwise. The restriction to the right
to be elected derives from a sovereign choice of the people in the
pursuit of the above-mentioned legitimate aims of general interest, which
prevail over the right of the incumbent president. […] For the above
reasons, it is obvious that limiting presidential mandates for reasons
of safeguarding democracy, which together with human rights and
the rule of law is a foundational value of the Council of Europe,
does not amount to discrimination in the sense of Art. 1 of Protocol
12. Limits on presidential mandates, aiming at securing democracy,
i.e. the very same purpose which electoral rights also serve, would
not be found discriminatory or unreasonable in the sense of Art.
25 of the ICCPR. Limitation of mandates is not one of the grounds
for discrimination contained in international treaties. However,
term limits should be neutral and should not be imposed or removed
in a manner that would prematurely remove someone from office or
secure the continued service of someone currently holding office
(i.e., by lifting term limits). This risk may be averted if such
changes do not benefit the incumbent.”
34. From both perspectives, that of the incumbent wishing to run
for an additional mandate or that of the defenders of democracy
worrying about the overwhelming power of the executive, it is obvious
that any change to the presidential term limits must be carefully
considered by society as a whole. In the words of the Venice Commission:
“[a] decision to alter or remove
presidential term limits should be subject to thorough public scrutiny,
as it has a significant impact on the political system, a country’s
stability and on confidence in the electoral process. In the long
term, a reform of these provisions may affect democratic quality
or even democratic endurance. A broad consensus, as well as respect
for constitutional and legal procedures, is crucial to maintain
strong democracy and confidence in institutions and electoral processes.”Note
35. Given the rapid-fire procedure followed for the adoption of
the amendments in question and the joint treatment of and vote on
very disparate issues (see paragraph 13 above), this condition was
clearly not met in the case at hand.
4 Hearing
with the President and Secretary of the Venice Commission in April
2023
36. As a visit to the Russian Federation
was obviously not feasible and the Venice Commission itself was faced
with the refusal of the Russian authorities to co-operate in its
further work on this topic, I organised a hearing during the meeting
of the Committee on Legal Affairs and Human Rights in April 2023
with the President of the Venice Commission, Ms Claire Bazy Malaurie,
and the Secretary of the Venice Commission, Ms Simona Granata-Menghini.
At my request, they also presented the positions and arguments brought forward
by the Russian authorities while they were still co-operating in
the preparation of the Interim Opinion.
37. Ms Bazy Malaurie noted that every time the Venice Commission
worked with Russia, they came across legal experts, who in the sophist
tradition are very good at undermining concepts which are accepted
as standard in the broader legal profession. In its 2021 Interim
Opinion, the Venice Commission carefully collected the precise replies
that it had obtained in its exchanges with the Russian authorities,
legal experts and parliamentarians. These replies showed that the
Russian authorities fundamentally disagreed with the Venice Commission’s
approach following which the constitution shall lay down the basic
rules on the separation of powers. Procedurally speaking, the amendments
were adopted following a procedure which does not exist in the Constitution,
in particular the “popular vote”, which did not correspond to a
proper referendum. Ms Bazy Malaurie explained that, to her surprise,
with regards to the separation of powers, the authorities’ replies showed
that in Russia the President is not considered as belonging to any
of the three branches. This is so despite the President’s and the
Presidential Administration’s broad executive powers, which should
be balanced out by another power. The President can overrule the
Duma when nominating the Prime Minister, and the “multi-party system”
and the “independent judiciary” referred to by the Russian interlocutors
simply do not exist. The President even has the right to revoke
Constitutional Court judges when they show a “lack of dignity” in
the exercise of their function. Ms Bazy Malaurie noted that the
Venice Commission never received explanations of what qualifies
as “dignity” or lack thereof or what would trigger a revocation.
She added that the Federation Council was indeed somewhat strengthened
by the amendments, but at the same time its composition had become
more “centralised” by the President’s right to appoint new members,
for life. Once the President stands down, he automatically becomes
a member of the Federation Council and enjoys a very special immunity
regime, for life.
38. Ms Granata-Menghini noted that the Venice Commission had previously
come across the issue of term limits in other constitutions, in
the context of checks and balances. Excessive powers and time in
power lead to a distortion of political pluralism, checks and balances,
and the non-existence of a level playing field for elections. From
the opposite perspective, a study commissioned by the Organisation
of American States examined whether term limits exert an undue interference
with the human rights to vote, to elect and to be elected. The European
Court of Human Rights had stressed the importance of non-discrimination
in this context, as in the Sejdić and
Finci case on elections in Bosnia and Herzegovina. The
Venice Commission did not find any trace of a “right to be re-elected”
or to run for re-election; in providing for a specific electoral
system or term limits in the Constitution, the People are sovereign.
Different Constitutions present different modalities (for example
maximum number of consecutive terms, maximum number of years in
power). On the question of a potential violation of the rights of
voters who cannot choose to keep a president as long as they would
like, Ms Granata-Menghini noted that the right to take part in genuinely
free and fair elections may be negatively affected through excessively
long term limits, where the president has been in power for so long
as to make numerous appointments that affect the “independence”
of other State bodies. The Venice Commission therefore did not agree
with the practice of some Latin American constitutional courts which
found that some constitutional provisions relating to term limits
violated international standards. Any constitutional amendment requires
broad consensus, wide consultations, and full respect of the amendment
procedure. Rules cannot be changed ad
hoc, ad personam or in haste. Constitutional courts should
have the power to review the procedure followed to adopt constitutional
amendments. If the courts are to review the content, this needs
to be clearly set out in advance. Finally, referenda on the one
hand tend to add legitimacy. On the other hand, they may be used
to bypass parliament and the constitutionally prescribed procedure.
Referenda must follow strict rules and standards. By contrast, the
Russian Federation used a much simpler procedure with greater opportunities
for one-sided campaigning. Term limits also imply that the incumbent
can eventually be called to account – and the incumbent is aware
of this and acts accordingly. Therefore, extending immunity beyond
the term limit frustrates the very aim of having term limits prescribed
in the Constitution.
39. In reply to the discussion, Ms Bazy Malaurie confirmed that
the Russian President enjoys total immunity under Russian law. Once
he is no longer President he will be a member of the Federation
Council and as such continue to enjoy functional immunity. De facto and de
jure, he will always enjoy both functional and personal immunity.
This cannot be challenged under the amendments which preclude any
proceedings being brought against a president or former president.
She also drew attention to another new provision of the Russian Constitution
providing for “support” for the Russian population and culture.
5 Conclusions
40. Term limits serve to keep in
check those who might be tempted to use their presidential power
to curtail any opposition, and they protect checks and balances
that erode over time as presidents become gradually cut off from
critical voices. Presidents who know their term is finite and who
presumably want to live out the rest of their lives in their home
country have an incentive not to use excessive force against political
opponents, for they know one day one of them may be elected as their
successor and they will no longer be able to exercise political
power to protect themselves from the consequences of their acts.
Note
41. I therefore strongly feel that term limits are not just allowed
in a democracy (from the point of view of the ruler’s rights), but
they are necessary to preserve the rights of the people. Term limits
mean that the president, and definitely the president in his or
her last term, has more incentives to be preoccupied with the challenges facing
the country and with securing their place in history and helping
their political allies retain the trust of the people, rather than
with brutal suppression of the opposition.
42. It should be noted that once a president has taken the path
of severe oppression of the opposition and cruelty against his or
her own people, he or she knows there is no way back. Relinquishing
office then means risking to be held accountable for their misdeeds;
to avoid this they attempt to spend the rest of their lives clinging
to office at ever higher cost to their own country, their own people
and ultimately themselves.
43. That is why a country which takes a big step towards extending
term limits beyond two periods, takes an equally big step away from
democracy and the rule of law. Other States, including member States
of the Council of Europe, were too slow to realise the risks attached
to these constitutional changes and too quick to accept the outcome
of the deeply flawed procedure including the “popular vote”.
44. A president, together with his or her political allies, usually
wields substantial power to nominate allies to high positions in
the State, be it the highest courts, the electoral body, the auditors’
office, the armed forces, the central bank or other institutions.
It is the function of these State institutions to keep presidential
powers in check. These checks and balances tend to erode over time
when a president remains in office, as he or she will nominate friends
and allies to those key positions. Dissenting voices will also disappear
from his or her inner circle. Ultimately this has a high cost to
the president, too, as the system of checks and balances exists
to prevent large-scale errors. This can unfortunately be observed
in Russia: President Putin clearly no longer received reliable information
and advice on the effective power of the Russian armed forces and
the Ukrainian people’s will (and ability) to resist, let alone on
the legal and moral aspects of starting a war of aggression when he
decided to invade Ukraine. This is exactly the type of large-scale
error and crime the system of checks and balances is intended to
prevent.
45. In the draft resolution, I have summed up the main findings
of this report in such a way as to send a strong signal to the international
community and to Russian society, which should understand that the
waiver of the presidential term limit in favour of President Putin
is neither legitimate, not even in accordance with Russia’s own
Constitution, nor in line with international standards designed
to protect checks and balances preventing a descent into dictatorship
with all its nefarious consequences for Russia and its neighbours.
46. Regarding the consequences that need to be drawn from these
findings, the Assembly may wish to consider, first of all, to invite
the competent Russian constitutional bodies, namely the State Duma,
the Federation Council and the Constitutional Court, to reverse
the ad personam waiver of
the presidential term limit for Mr Putin and Mr Medvedev. Secondly,
the Assembly may wish to invite the international community as a
whole to minimise contacts with Mr Putin, which should be limited
to those that are unavoidable on humanitarian grounds and in the
pursuit of peace. This should apply, in particular, after the expiry
of his current mandate in 2024. Thirdly, the Assembly should recall
that all States Parties to the Statute of Rome of the International
Criminal Court are legally bound to arrest Mr Putin, should he enter
their jurisdiction, on the basis of the arrest warrant issued by
the International Criminal Court on 17 March 2023. This arrest warrant
was based on war crimes allegedly committed by Mr Putin by overseeing
the deportation, to Russia, of a large number of Ukrainian children
from the temporarily occupied areas of Ukraine. Finally, the Assembly
should use this opportunity to reiterate its support for the creation
of an ad hoc international
criminal tribunal for the crime of aggression and to welcome the
progress made in this respect. Such tribunal should be able to investigate events
starting from the illegal annexation of Crimea in 2014 onwards and
therefore also the war in the Donbas region and the downing of flight
MH17.
