Instead of the Electoral Code of the Russian Federation

Kudryashov Evgenii Olegovich PhD in Law Associate Professor of the Department of State Legal and Financial Legal Disciplines of Moscow University of Finance and Law MFUA 160009, Russia, Moscow region, Krasnogorsk, Voronki str., 45 D, office 5 referee-35@mail.ru

For several decades now, the scientific and professional community has been discussing the need to develop and adopt the Electoral Code of the Russian Federation. This sluggish discussion, which from time to time becomes more active, after which it is forgotten again. Another surge of interest in the topic was observed in 2018-2019, but the epic with the 2020 constitutional amendment pushed all other issues of constitutional law into the background.At the same time, the constitutional reform is not limited to the adopted amendment, the development and adoption of more than a hundred laws and other regulations is being implemented.

The prevailing conditions create a favorable ground for changing constitutional legislation, including the codification of electoral law, which today remains fragmented, internally contradictory and difficult to apply. The introduction of a single voting day and the unification of several election campaigns in time has led to the simultaneous operation of a set of federal and regional laws, as well as a large number of regulatory acts of election commissions of different levels, which creates difficulties in law enforcement.

Attempts to develop the Electoral Code of the Russian Federation have been made repeatedly, but the federal legislator preferred to focus on the option of regulation by a combination of a framework federal law and special federal and regional laws, each of which regulates a specific type of election. But the regional legislator in some cases has moved further on this issue: electoral codes function in some subjects of the Russian Federation, but the detailed nature of regulation at the federal level excludes the diversity of regional codes. As S.V. Gromyko rightly notes, one of the most serious shortcomings of the federal law is the complete loss of the line between fundamental and detailed legal regulation ^[9].

In 2018, an agreement was signed between Moscow State University (MSU) and the non–profit organization "Russian Foundation for Free Elections" (hereinafter referred to as the Foundation) on the development of the next draft of the Electoral Code of the Russian Federation. As a result of the work carried out, a draft federal law "The Code on Elections and Referendums in the Russian Federation" (the Electoral Code of Russia) appeared on the Foundation's website ^[5]. This is probably the last attempt to codify the electoral legislation, apparently, like all previous ones, it ended in nothing, since it did not offer adequate solutions to the problems mentioned above.

In this paper, the readers are presented with the concept of codification, which differs significantly from those that were proposed earlier.

1. Code and codification.The arguments "for" and "against" the codification of electoral law have been repeatedly expressed in the literature, as well as various variants of the subject of legal regulation of the electoral code have been proposed.

It was proposed, for example, to exclude referendum issues from the electoral code or to focus on regulating only federal elections, etc.

Some scientists generally believe that in fact the electoral code already exists, its role is fulfilled by the Federal Law "On Basic Guarantees of Electoral Rights and the right to participate in a referendum of citizens of the Russian Federation" ^[10]. Comparing the content of this law with the drafts of the Code, one can make sure that such a position is not without grounds.

And yet, for almost three decades, the system of regulatory legal acts regulating the organization of the preparation and conduct of elections and referendums has survived, despite all its shortcomings, there has been a more or less definite law enforcement practice. It seems that it is now easier to resolve existing difficulties than to look for answers to new challenges that may arise if the federal code comes into force. The passivity of the legal community in the development of the code is explained, in my opinion, by the fact that the "lesser evil" has already been chosen in the form of complex but familiar legislation, and not the "greater evil", which consists in the need to restructure the work in accordance with the requirements of the new code.

The drafters of the draft electoral code, including the draft published on the official website of the Foundation, propose one way or another to combine the existing laws on elections and referendums, including their provisions in the code, while eliminating overlapping norms and bringing all electoral procedures to uniformity. After all, this is closer to consolidation.

Let's turn to the definitions of the concept of "codification".

Codification, writes N.I. Matuzov and A.V. Malko, involves the reworking of the norms of law in terms of content into their systematic, scientifically based presentation in a new law (code, code of laws, etc.) ^[14].

V.P. Gavrikov points out that codification is a type of ordering of normative material in which several normative legal acts are consolidated into one code with a significant change in the content of these previously independent acts ^[8].

The Co-Chairman of the Working Group on the preparation of proposals for amendments to the Constitution of the Russian Federation, State Duma Deputy P.V. Krasheninnikov notes that unlike incorporation, which consists in systematizing legislation without changing it in essence, codification includes not only systematization, but also the processing of the current legislative material with its alignment into a new act,as a rule – the code. Figuratively speaking, if incorporation is putting a residential building in order, then codification is the demolition of an old house and the construction of a new house, but with partial use of materials obtained from demolition ^[11].

A similar position was held by Academician of the Russian Academy of Sciences V.S. Nersesyants, who wrote that the codification act is distinguished by the qualitative novelty of the normative legal provisions contained in it. This is a new act both in form and in its regulatory content and nature ^[13].

From the above definitions, it can be seen, firstly, that there is a uniform understanding of codification in science. Secondly, codification requires not only a technical action to combine the laws into a single act, but also a substantial (and not cosmetic!) processing of regulatory material. The discussion on the codification of electoral legislation, in my opinion, pays excessive attention to the external – the least important – side, while the essential side, that is, the radical processing of the content of normative material, is completely insufficiently discussed.

Thus, familiarization with various drafts of the electoral code allows us to conclude that they are written in the image and likeness of the Federal Law "On Basic guarantees of Electoral Rights and the right to participate in a referendum of citizens of the Russian Federation" ^[4]. At the same time, norms of both material and procedural nature are literally copied. For example, in the 456-page draft code submitted by the Foundation, even such odious institutions as the so-called "municipal filter" are not excluded, the election commissions of municipalities are not removed from the system of election commissions. The procedures for the nomination and registration of candidates are in many respects similar to those in force today, about the same can be said about other procedures.

If codification does not comprehensively solve the most acute problems of electoral law, the question of its expediency arises, and I come to the conclusion that the electoral code, in the form in which it has been presented up to now, is not needed.

At the same time, there is a need for a radical revision of the legal norms regulating not only elections, but also other relations related to the functioning of institutions of direct democracy. Already today, electoral legislation covers legal regulation that goes beyond election campaigns ^[7] and the actual legal relations regarding elections, including the legal status of political parties, the procedure for campaigning in the form of public events, etc.

Thus, norms are required, for example, excluding the arbitrariness of public authorities in the exercise of the right of citizens to hold public events, without which, by the way, it is difficult to imagine holding democratic elections. Such norms should contain unambiguous objective requirements for the organizers of public events, exclude broad discretion of public authorities. In this regard, it seems that it is possible to introduce guarantees of their conduct, similar to those contained in the legislation on elections. Democratically formed authorities should remain in a democratic tone, be accessible to voters, and be open to their influence. In this regard, the procedure for considering citizens' appeals also needs serious adjustment: it should become a simple and effective way to protect rights.

Alternative to the Electoral CodeI will present in general terms my own concept of codification of the norms of public law, which should cover not only electoral legislation.

In the framework of this work, we will talk about the name and form of the proposed act, the subject of legal regulation and structure.

1. Name of the act.

The product of the proposed codification should not be the electoral Code, but the Code of Democracy of the Russian Federation. The name is determined by the subject of regulation, which covers not only the norms of electoral law and the process, but a wider range of public law norms regulating public relations regarding the functioning of institutions of direct democracy.

2. The form of the act.

Today, all codes in force in the Russian Federation are federal laws. The only exception is the Customs Code of the Eurasian Economic Union ^[2], which is an annex to the international treaty of the Russian Federation. At the same time, the Constitution of the Russian Federation ^[1] does not prohibit the code from being adopted in the form of a federal constitutional law, if this law is adopted on issues provided for by the Constitution of the Russian Federation (Part 1 of Article 108).

Due to the fact that the proposed act will regulate relations regarding the procedure for calling a referendum, the code should be adopted in the form of a federal constitutional law, as required by paragraph "b" of Article 84 of the Constitution of the Russian Federation. At the same time, there is no prohibition to establish in such a federal constitutional law the regulation of other, related, relations based on common principles aimed at achieving common goals. Thus, the current Federal Constitutional Law "On the Referendum of the Russian Federation" ^[3] is not limited to regulating relations only regarding the appointment of a referendum.

The form of the federal constitutional law follows from the requirements of the Constitution of the Russian Federation, but it will also be useful in order to stabilize electoral legislation, after all, the procedure for amending the federal constitutional law is more complicated than the adoption of amendments to federal laws, however, it also depends on the composition of parliament.

3. Subject of legal regulation.

Public relations regarding the functioning of institutions of direct^[1] democracy today are regulated by the norms of constitutional law contained in numerous normative legal acts.

Let's make a reservation that some authors point to the duality of the institutions of direct democracy. For example, I.A. Alabastrova writes that the forms of direct democracy are completely clearly divided into two varieties within themselves: forms of democracy (imperative forms of direct democracy) and forms of political participation (consultative forms of direct democracy) ^[6]. Still, it seems that "democracy" and "democracy" are equivalents, but this is a discussion about terms. At the same time, it is necessary to unequivocally agree with the division of the institutions of direct democracy into the two named types.

If we abstract from the classification, then the institutions of direct democracy include popular voting, referendum, elections, nationwide voting, recall of a deputy or elected official, nationwide voting, public events (meetings, rallies, demonstrations, processions, picketing), public hearings, etc., the functioning of political parties and their blocs, political movements, petitions. All these institutions allow the state to increase the degree of democracy by coordinating its policy with the expressed demands of its citizens ^[15].

The functioning of these institutions, which are essentially procedures, is supported by the institutional infrastructure: election commissions, public chambers, volunteers and their communities, and others. All this, in my opinion, is the subject of legal regulation of the proposed code.

It can be expanded at the expense of other institutions that have not yet found (or almost have not found) reflection either in the Constitution of the Russian Federation or in legislation. These include consultative referendums, preliminary elections in political parties (primaries), people's legislative initiative, etc.

The above can be formalized in a single codified act based on general principles, which include freedom, equality, transparency, universality, continuity of citizens' participation in government, ideological diversity and others.

4. The structure of the Code.

The structure of the proposed code is determined by the subject of legal regulation and, as it seems, may consist of the following sections:

General provisions.

The legal status of subjects of direct democracy.

The order of functioning of institutions of direct democracy.

The infrastructure of direct democracy.

4.1. The general provisions should reflect the basic concepts and terms used in the Code, the principles of legal regulation, the procedure for calculating deadlines, etc.

4.2. A separate chapter (section) of the Code is devoted to the legal status of subjects of democracy. I will single out several subjects of democracy.

First of all, the voters. In the current legislation, the concepts of "voter" and "referendum participant" are persistently separated, but the benefits of such a separation are much less than the harm they cause, which is expressed in the overload of formulations and the complexity of the perception of the law. Meanwhile, Chapter 9 of the Constitution of the Russian Federation does not single out "participant of the popular vote", the term "voter" is used, and common sense is enough to understand who and what is being discussed without overloading the text. Lyubarev A.E. notes that there are also no serious reasons why the adjective "electoral" could not be used in the law regulating the issues of holding a referendum ^[16].

It seems that the legal status of a voter should presuppose not only the right to vote in elections, but also participation in the implementation of other forms of direct democracy.

It is worth mentioning separately about the observers. Today it is not only a legal institution, but also an institution of civil society, which contributes to increasing confidence in the voting process and vote counting. It would be useful to expand the legal status of observers, making their participation not just possible, but mandatory both during voting and during the implementation of other institutions of direct democracy. For example, during public events.

I also refer to the subjects of democracy as political parties and their blocs, political movements, as well as individuals engaged in political activity alone. Their legal status should be linked to the regulation of the procedures in which they participate, respectively, this should be done within the framework of a single code.

4.3. A separate chapter (section) of the Code should regulate such democratic procedures as elections and referendums, organization and participation in public events, and others. The listed procedures have common principles of legal regulation, retaining, of course, their own characteristics.

It seems that it is possible and necessary to bring to general principles the functioning of such institutions of direct democracy as the formation of authorities by voting of citizens (elections and recall), decision-making (referendums, etc.), public events (rallies, etc.), petitions and others. Without going into details, I would like to note that there are much more general principles of such regulation than we observe in legislation today. Here are some examples. Thus, the procedure for financing democratic procedures, the procedure for their appointment at a certain time and in a certain place can be united by common principles of regulation (that is, to establish, for example, not only a single voting day, but also the days of public events); regulation of the procedure for monitoring elections and referendums can be extrapolated to other forms of democracy; in the light of recent events, to prohibit the participation of minors, or vice versa, to lower the age limit for voting, thereby involving young people in the democratic process.

4.4. I refer to the infrastructure of democracy as election commissions, whose powers can be expanded and applied not only to elections and referendums, but also to other democratic procedures (it catches the eye – primaries). Electoral districts, polling stations, GAS "Elections", and volunteers also belong to the infrastructure of democracy, the functioning of which should be regulated on the basis of the principles mentioned above.

Thus, in order to realize the democratic nature of the Russian state, to increase the efficiency of the functioning of direct democracy institutions, to reduce their dependence on the discretion of public authorities, to increase the guarantees of citizens for access to them, it seems possible and necessary to develop, widely discuss and adopt the Code of Democracy of the Russian Federation.

^[1] I identify direct democracy with direct democracy.