The judges did not show responsiveness – Newspaper Kommersant No. 227 (7428) dated 12/07/2022

The Constitutional Court confirmed the current procedure for recalling municipal deputies. Now it is so complicated that such a procedure is simply impossible to implement, the applicants complained. But, the judges explained, it reliably protects the rights of voters and their representatives. In fact, the institution of recalling deputies is rather a harmful thing, the expert notes: if it works, it will only work against the opposition.

The Constitutional Court (CC) did not see any contradictions in the norms of the law “On the general principles of the organization of local self-government”, which determine the procedure for recalling local deputies. This is stated in the refusal decision on the complaint of Muscovite Elena Aksenova, published on the website of the court.

The applicant contested the rules according to which the grounds for the recall of an elected official could be his actions, recognized as unlawful in a court of law, or the will of more than 50% of the voters. In her opinion, such an order contradicts the constitutional principle of democracy, as it creates insurmountable obstacles in the implementation of the electoral right. After all, if for the empowerment it is required to gain more than half of the votes from the number of voters who came to the polls, then for the “revocable” expression of will, more than half of their payroll is required, the complaint emphasized.

As Mrs. Aksenova told Kommersant, the reason for applying to the Constitutional Court was the protracted conflict over the installation of a barrier in the courtyard of one of the houses in the Tverskoy district of Moscow. Residents first achieved permission for the barrier, but then it was canceled by municipal deputies. Attempts to achieve a review of the decision to cancel were unsuccessful, as well as lawsuits to recognize the deputies’ actions as illegal.

Such a court decision would make it possible to seek the recall of people’s deputies, whose actions were contrary to the wishes of the residents, Elena Aksenova explains. The activists did not even try to initiate their recall through the voting procedure, since it is completely unrealistic to gain more than half of the votes of the district voters. In her opinion, the number of those who voted for the deputy in the elections, plus at least one more vote, would be enough. Therefore, a group of activists last year challenged the norms of the charter of the Tverskoye municipality, including those providing for a vote to recall at least half of the registered voters. But the Moscow City Court denied the claim. He pointed out that the facilitated recall procedure, which the applicants insist on, could lead to abuse and “is unacceptable, including from the point of view of the need to ensure the continuity of the exercise of the functions of elected public authorities.”

The higher courts agreed with this position, and now the Constitutional Court has also supported it. The controversial norms contain guarantees that exclude an arbitrary assessment of activities, as well as early termination of the powers of local self-government officials, which is not based on the actual will of the population, the definition of the Constitutional Court says. Consequently, the court concludes, they are aimed at ensuring the electoral rights of citizens and at judicial protection of the rights of the recalled person, and as a result, at the implementation of the principles of democracy and independence of local self-government enshrined in the Constitution.

Elena Aksenova told Kommersant that from the point of view of the conflict that became the reason for applying to the Constitutional Court, the refusal of the court is no longer relevant: after the next elections in the fall of 2022, the composition of the district council of deputies has changed, and those whose recall the activists wanted to achieve are in a new convocation did not appear. However, she still considers wrong the situation in which a deputy is elected, relatively speaking, by ten votes, and 500 are required to recall him.

The former head of the Council of Deputies of the Tverskoy District, Yakov Yakubovich, agrees that the mechanism for recalling a municipal deputy today is actually a non-working norm, the procedure for its implementation is too complicated. On the other hand, he adds, the need for such an institution is not in itself obvious: the deputy is elected for a limited term, and if he acts against the will of the voters, they may simply not vote for him next time. “The people must learn to live under democracy,” Mr. Yakubovich insists, and if a deputy violates the law, then there is a supervisory body represented by the prosecutor’s office.

The guarantee that an elected person will remain in office for the entire term of office is one of the international electoral standards, reminds political scientist Alexander Kynev. From this point of view, the institution of recalling a deputy is rather a harmful thing and cannot bring any benefit, he believes. It is clear in advance that such a tool will work primarily against the opposition, because citizens, unlike the authorities, will not be able to put pressure on a deputy, the expert argues. It is no coincidence, he continues, that the institution of recall is practically never found in world practice, and rare cases are rather exotic in nature – as, for example, in American California, where in 2003, as a result of a recall campaign, Governor Gray Davis was replaced by Arnold Schwarzenegger. However, already in 2021, it was not possible to recall the current California Governor Gavin Newsom, Mr. Kynev adds.

Anastasia Kornya