-->
EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE
COMMISSION)
OPINION
ON
“WHETHER THE DECISION
TAKEN
BY THE SUPREME COUNCIL
OF THE AUTONOMOUS REPUBLIC OF CRIMEA
IN UKRAINE
TO ORGANISE A REFERENDUM
ON BECOMING A CONSTITUENT
TERRITORY
OF THE RUSSIAN FEDERATION
OR RESTORING CRIMEA’S 1992
CONSTITUTION IS COMPATIBLE
WITH
CONSTITUTIONAL PRINCIPLES”
adopted by the Venice
Commission
at its 98th Plenary
Session
(Venice, 21-22 March
2014)
on the basis of comments by
:
Mr Peter PACZOLAY (Honorary
President, Hungary)
Ms Hanna SUCHOCKA (Member,
Poland)
Mr Evgeni TANCHEV (Member,
Bulgaria)
Mr
Kaarlo TUORI (Member, Finland)
CDL-AD(2014)002
Engl. only
Venice, 21 March 2014
Opinion no. 762 / 2014
I.
Introduction
1. By letter dated 7 March 2014 the
Secretary General of the Council of Europe,
Mr Jagland, asked the Venice
Commission to provide an opinion on “whether the decision
taken by the Supreme Council of the
Autonomous Republic of Crimea in Ukraine to organize
a referendum on becoming a constituent
territory of the Russian Federation or restoring
Crimea’s 1992 Constitution is
compatible with constitutional principles”.
2. Mr Paczolay, Ms Suchocka, Mr Tanchev
and Mr Tuori were appointed as rapporteurs for this opinion.
3. The present opinion was adopted by
the Venice Commission at its 98th Plenary session in
Venice on 21 March 2014.
4. On 6 March 2014 the Supreme Rada
(Council) of the Autonomous Republic of Crimea
adopted a Resolution “On the
all-Crimean referendum”. According to the Resolution, the
voters are given two options: "1)
Do you support the reunification of the Crimea with Russia
as a subject of the Russian Federation?
2) Do you support the restoration of the Constitution
of the Republic of Crimea as of 1992
and the status of the Crimea as a part of Ukraine?"
Article 3 of the Resolution provides
that the option supported by the majority of votes shall
be deemed a direct expression of will
by the Crimean population.
5. On the ballot paper the two
questions appear as alternatives, i.e. the voters are not asked
to say yes or no to each question but
they can either vote for the first or the second
alternative.
 | ||||
| Заседание на Венецианската Комисия |
6. The Resolution was passed on the
basis of Articles 18(1)(7) and 26(2)(3) of the
Constitution of the Autonomous Republic
of Crimea. Article 18(1)(7) provides that among the
powers of the Autonomous Republic of
Crimea is “calling and holding of republican (local)
referendums upon matters coming under
the terms of reference of the Autonomous Republic
of Crimea”. In turn, according to
Article 26(2)(3) “passing of a resolution upon holding of a
republican (local) referendum”
belongs to the powers of the Supreme Rada”. These
provisions are based on Article 138.2)
of the Constitution of Ukraine according to which the
“organising and conducting local
referendums is within the competence of the Autonomous
Republic of Crimea”.
7. In order for the referendum to be
constitutional and legal, it would be required that the
issues to be put before the voters are
issues which can be the object of a local referendum
under the Constitutions of Ukraine and
the Autonomous Republic of Crimea. The
Constitution of Ukraine enjoys
supremacy over the Constitution of Crimea as an autonomous
republic. Ukraine is a unitary state
(Article 2 (2) of the Constitution of. Ukraine). According to
Article 132 of the Constitution of
Ukraine, “the territorial structure of Ukraine is based on the
principles of unity and indivisibility
of the state territory, the combination of centralization and
decentralization in the exercise of
state power, and the balanced socio‐economic
development of regions (...)”. Under
Article 134 of the Constitution of Ukraine, “the
Autonomous Republic of Crimea is an
inseparable constituent part of Ukraine and decides
on the issues ascribed to its
competence within the limits of authority determined by the
Constitution of Ukraine”. The
Autonomous Republic of Crimea therefore enjoys autonomy
only to the extent that powers were
transferred to it by the Constitution of Ukraine
 |
| Заседание на Венецианската Комисия |
8. Accordingly, Article 135 of the
Constitution of Ukraine holds that, “regulatory legal acts of
the Verkhovna Rada of the Autonomous
Republic of Crimea and decisions of the Council of
Ministers of the Autonomous Republic of
Crimea shall not contradict the Constitution and
laws of Ukraine and shall be adopted in
accordance with and in pursuance of the
Constitution of Ukraine, laws of
Ukraine, acts of the President of Ukraine and the Cabinet of
Ministers of Ukraine”. A
corresponding provision is included in Article 28 of the
Constitution
of the Autonomous Republic of Crimea:
“The statutory acts of the
Supreme Rada of the
Autonomous Republic of Crimea and
the Council of Ministers of the Autonomous Republic of
Crimea upon any and all matters
regarding the powers of the Autonomous Republic of
Crimea shall conform to the
Constitution of Ukraine and Ukrainian laws.”
An act by an
authority of the
Autonomous Republic of Crimea which is contrary to the Constitution
of
Ukraine is therefore also contrary to
the Constitution of Crimea.
- Alternative 1: Unification with Russia
9. The first alternative proposed to
the voters, for Crimea to join the Russian Federation,
would imply secession from Ukraine. The
question is whether the Constitution of Ukraine
allows referendums on secession.
10. It is true that the Constitution of
Ukraine, in particular its Article 69, recognizes
referendums as an expression of the
will of the people. This does, however, not mean that
any referendum is automatically
constitutional. On the contrary, there are numerous
provisions of the Ukrainian
Constitution which show very clearly that the secession of a part
of the territory of the country cannot
be the object of a local referendum.
11. The Constitution of Ukraine makes
it very clear that the sovereignty and territorial
integrity of the country are
fundamental principles of the Ukrainian constitutional order.
Article 1 of the Constitution refers to
Ukraine as a sovereign country. Article 2 of the
Constitution is worded as follows:
“The sovereignty of Ukraine
extends throughout its entire territory.
Ukraine is a unitary state.
The territory of Ukraine within its
present border is indivisible and inviolable.”
Already in its study on
“Self-determination and secession in constitutional law”
(CDL-
INF(2000)002), the Venice
Commission noted that “Affirmation of the indivisibility of the
state
plainly implies outlawing of
secession...”
12. Article 2 of the Constitution of
Ukraine shows that the indivisibility of the territory of
Ukraine is one of the highest values of
the Ukrainian Constitution and is an indication that a
referendum on secession cannot be
constitutional in Ukraine.
13. Chapter X of the Constitution of
Ukraine pertaining to the Autonomous Republic of
Crimea does not contradict but confirms
this approach. Article 134 of the Constitution refers
to the Autonomous Republic of Crimea as
an “inseparable constituent part of Ukraine”. As
regards referendums, Article 138.2
of the Constitution of Ukraine explicitly limits the
competence of the Autonomous
Republic of Crimea to “organizing and conducting local
referendums”. From the outset,
issues of altering the territory of Ukraine cannot be decided
by a local referendum. Article 73 of
the Constitution of Ukraine explicitly provides:
“Issues of altering the territory of
Ukraine are resolved exclusively by an All-Ukrainian
referendum.”
14. Since Article 134 of the
Constitution of Ukraine defines Crimea as an inseparable
constituent part of Ukraine, the
secession of Crimea would require amending the
Constitution of Ukraine. Such a
constitutional amendment is however, prohibited by Article
157.1 of the Constitution of Ukraine
which provides:
“The Constitution of Ukraine shall
not be amended, if the amendments foresee the
abolition or restriction of human
and citizens' rights and freedoms, or if they are
oriented toward the liquidation of
the independence or violation of the territorial
indivisibility of Ukraine.”
15. It is therefore clear that the
Ukrainian Constitution prohibits any local referendum which
would alter the territory of Ukraine
and that the decision to call a local referendum in Crimea
is not covered by the authority
devolved to the authorities of the Autonomous Republic of
Crimea by virtue of Article 138 of the
Ukrainian Constitution. This is confirmed by the
judgment of the Constitutional Court of
Ukraine of 14 March 2014 recognising the decision as
unconstitutional. Since Article 28 of
the Constitution of the Autonomous Republic limits the
authority of the Supreme Soviet of the
Autonomous Republic to matters within the authority
of the Autonomous Republic under the
Ukrainian Constitution, the decision also violates the
Constitution of the Autonomous
Republic.
16. The provisions of the Constitution
of Ukraine pertinent for this opinion are part of the initial
text of the Constitution adopted in
1996 and were never amended. The question whether the
constitutional amendments adopted in
2004 are part of the Constitution or not is therefore not
relevant for this opinion.
17. If the Constitution of Ukraine does
not allow a referendum on secession, this does not in
any way contradict European
constitutional standards. Rather, it is typical for constitutions of
Council of Europe member states not to
allow secession. In its Report on “A general legal
reference framework to facilitate the
settlement of etno-political conflicts in Europe” (CDL-
Inf(2000)16 the Venice Commission
noted:
“The principle of territorial
integrity commands very widespread recognition - whether
express or tacit - in constitutional
law. On the other hand, constitutional law just as
comprehensively rules out secession
or the redrawing of borders. This should come
as no surprise since that branch of
law is the very foundation of the state, which
might be deprived of one of its
constituent parts if such possibilities were provided
for.”
18. This does not mean that the notion
of self-determination would be alien to European
constitutional law. However, in its
Report on “Self-determination and secession in
constitutional law” quoted above, the
Venice Commission concludes that self-determination
is understood primarily as internal
self-determination within the framework of the existing
borders and not as external
self-determination through secession.
19. The decision of the Ukrainian
constituent power not to grant a right to secession can
therefore not be criticised on the
basis of European constitutional standards.
- Alternative 2 – Return to the 1992 Constitution
20. According to the second alternative
provided for in the referendum, a return to the 1992
Constitution of the Autonomous
Republic, Crimea would remain part of Ukraine. The
constitutional objections to the first
alternative therefore do not apply. A consultative
referendum on increasing the autonomy
of Crimea would be possible as a local referendum
within Crimea. However, since this
second alternative is provided not as a separate question
but only as an alternative to
secession, it cannot be regarded as valid on its own. In any
case such a referendum could not be
regarded as binding. According to Article 135 of the
Constitution of Ukraine, the
Constitution of the Autonomous Republic has to be approved by
the Verkhovna Rada. It could only be
regarded as a consultative local referendum on the
basis of Article 48.2 of the
Constitution of the Autonomous Republic of Crimea which is
worded as follows:
“The Supreme Rada of the
Autonomous Republic of Crimea may, by a
resolution of an advisory republican
(local) referendum, make motions on alterations
regarding the limitation of the
status and powers of the Autonomous Republic of Crimea, the
Supreme Rada of the Autonomous
Republic of Crimea and the Council of Ministers of the
Autonomous Republic of Crimea
determined by the Constitution of Ukraine and Ukrainian
laws.”
The compatibility of the 1992
Constitution with the Constitution of Ukraine, which was
adopted in 1996, would then have to be
ascertained.Compatibility of the referendum with
European constitutional principles
- Compatibility of the referendum with European constitutional principles
21. While the first requirement for the
validity of the referendum is that it may not contradict
the provisions of the Constitution of
Ukraine, this is by no means sufficient. It is also
necessary that the referendum complies
with basic democratic standards for the holding of
referendums, such as those established
by the Venice Commission’s Code of Good Practice
on Referendums (CDL-AD(2007)008rev). In
its Opinion on the Compatibility of the Existing
Legislation in Montenegro concerning
the organization of referendums with applicable
international standards
(CDL-AD(2005)041) the Venice Commission noted (at 11):
“11. Any referendum must be
organised in full conformity with internationally
recognised standards. A
consideration of these standards must begin with an
examination of European standards.
...
12. The internationally recognised
fundamental principles of electoral law, as
expressed for example in Article 3
of the First Protocol to the ECHR and Article 25
ICCPR, have to be respected,
including universal, equal, free and secret suffrage.
For a referendum to give full effect
to these principles, it must be conducted in
accordance with legislation and the
administrative rules that ensure the following
principles:
- the authorities must provide
objective information;
- the public media have to be
neutral, in particular in news coverage;
- the authorities must not influence
the outcome of the vote by excessive, one-sided
campaigning;
- the use of public funds by the
authorities for campaigning purposes must be
restricted.“
22. A number of circumstances make it
appear questionable whether the referendum of 16
March 2014 could be held in compliance
with international standards. Such circumstances
are:
Ukraine does not at the moment have a
law regulating local referendums. It is
therefore not clear according to which
legal rules the referendum will be carried out.
While the Venice Commission has not
made a comprehensive assessment of the
current situation in Crimea, the
massive public presence of (para)military forces is not
conducive to democratic decision
making.
Concerns have been expressed, including
by the OSCE with respect to the freedom
of expression in Crimea;
The period of only 10 days between the
decision to call the referendum and the
referendum itself is excessively
short.
On 11 March the Supreme Rada adopted a
declaration on the independence of
Crimea. This raises doubts with respect
to the legal effects of the referendum and the
neutrality of the authorities.
23. Moreover, the referendum question
is not worded in a neutral way. It provides two
alternatives: independence or return to
the 1992 Constitution. It is not possible to directly
express the wish to maintain the
current Constitution. In addition, the reference to the 1992
Constitution is ambiguous. This text
underwent major changes in September 1992, making it
much clearer that the Autonomous
Republic is part of Ukraine. Does the referendum refer to
the original text adopted in May or the
revised text as amended in September? The Code of
Good Practice on Referendums requires
(at I.3.1.c) that “c. The question put to the vote
must be clear; it must not be
misleading; it must not suggest an answer; electors must be
informed of the effects of the
referendum; voters must be able to answer the questions
asked solely by yes, no or a blank
vote.”
24. Holding a referendum which is
unconstitutional in any case contradicts European
standards. The Code of Good Practice
on referendums provides in Part III.1 on the Rule of
Law:
The use of referendums must comply
with the legal system as a whole, and especially
the procedural rules. In particular,
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.
25. It also has to be taken into
account that the referendum concerns an issue of
outstanding importance. In its opinion
on Montenegro quoted above, the Venice Commission
also noted (at 24) that “the issue at
stake is possibly the most important decision that a
political community may take by
democratic means: its independence. Hence, the matter
requires the broadest possible
commitment of the citizens to the resolution of the issue.” The
Venice Commission recommended serious
negotiations among all stake holders to ensure
the legitimacy and credibility of the
referendum and such negotiations subsequently took
place.
26. With respect to the referendum of
16 March the Venice Commission can only note that
no negotiations aiming at a consensual
solution took place before the referendum was
called. Due to the multi-ethnic
composition of the population of Crimea (Russian, Ukrainians,
Tatars and others) such negotiations
would have been particularly important.
- Conclusions
27. The Constitution of Ukraine like
other constitutions of Council of Europe member states,
provides for the indivisibility of the
country and does not allow the holding of any local
referendum on secession from Ukraine.
This results in particular from Articles 1, 2, 73 and
157 of the Constitution.
These provisions in conjunction with
Chapter X of the Constitution
show that this prohibition also applies
to the Autonomous Republic of Crimea and the
Constitution of Crimea does not allow
the Supreme Soviet of Crimea to call such a
referendum.
Only a consultative referendum on
increased autonomy could be permissible
under the Ukrainian Constitution.
28. Moreover, circumstances in
Crimea did not allow the holding of a referendum in line with
European democratic standards. Any
referendum on the status of a territory should have
been preceded by serious
negotiations among all stakeholders. Such negotiations did not
take place.
