But what may the expression *problems of national interest* mean, taking into consideration the fact that a general definition of this broad term was not given? Over the years the debates in the public sphere pointed out several problems which can be assessed as being *of national interest* in Romania's case:

The principle of consultation of citizens on matters of local interest (or local referendum) is a component of local democracy, allowing the direct intervention of local communities in solving certain problems (Soós/Tóka/Wright 2002). The principle of consultation of citizens derives from local autonomy, as the local referendum is a genuine feature of it (Soós/Tóka/Wright 2002).

In Romania, as in other European countries, local collectivities have the right to intervene directly in the administration in some cases, through a referendum or other forms prescribed by law (Dragoş/Neamţu 2007). The principle of consultation of citizens on matters of local interest or local referendum is a component of local autonomy secured by constitutional regulations (Dragoş/Neamţu 2007).

The local referendum as well as the national one is an element of direct democracy, as it provides local communities with the opportunity to intervene directly in resolving issues of local interest (Devas/Delay 2006).

In Romania the organization of a local referendum is regulated through Law 3/2000 regarding the organization and holding of a referendum, the same law that regulates the organization of national referendums (Monitorul Oficial 2000).

Article 13 of this law states that (Monitorul Oficial 2000):

In the next article (Article 14) of the same general law (Law 3/2000) it is provided that (Monitorul Oficial 2000):

As in the case of putting in function the instrument of direct democracy at the national level there are some observable issues raised by the use of those instruments at the local level.

Thus, according to opinion polls made in the last twenty-six years the Romanian population generally believe they do not have a significant say in the decisions taken at a local level. The general attitude towards local administration and local government was and remains one of high distrust. People feel and frequently complain that the local administration and local government are unwilling or unable to satisfy their requests or wishes.

After the accession of Romania to the European Union as a full member (2006) the use of the instrument of direct democracy at the local level was more frequent than in the past (Coulson/Campbell 2013). In recent years, popular consultations take place much more often, especially in rural areas or small localities, at which public matters are discussed and decisions affecting the whole population are made (Baldersheim/Illner/Wollmann 2013). The number of cases has also increased when different political personalities suggested that the public will should be consulted in taking decisions affecting the local population (Baldersheim/Illner/Wollmann 2013).

One such instance in which direct democracy's instruments were involved was the case of anti-fracking movements in Romania 2013-2016.

#### **Practical Dimension**

Referendums which are held at the national level can be initiated only by elected representatives of the citizens. Under the legal provisions in force in Romania it is not possible for an initiative for a national referendum to be initiated by citizens (Setälä/Schiller 2012).

Since 1989, six national referendums have been held until now: two about a constitutional referendum (1991 and 2003), two on presidential impeachments (2007 and 2012), one on reforming the Romanian voting system (2007) and one on parliamentary reform (2009).

We can distinguish between three levels of use of the national referendum as an instrument of direct democracy in Romania: 1) Constitutional; 2) Electoral and Parliamentary system; 3) Presidential tenure.

At the constitutional level, the first Romanian referendum was held in Romania on 8 December 1991 on the topic of approving the new postcommunist, democratic Constitution.

With a turnout of 67.3%, the Romanian democratic Constitution was approved by 79.1% of voters.

Source: Nohlen/Stöver, 2000: 1591.

Twelve years later, on 18 and 19 October 2003, a referendum on the revision of some articles of the Romanian Constitution from 1991 was held. With a turnout of 55.7% the proposed amendments to the Constitution were approved by 91.1% of voters.

*Table 2.* The national referendum of 18-19 October 2003

Source: Dinita, 2012. https://www.democracy-international.org/sites/default/files/PDF/ 2012-07-15\_Events\_SummerAcademy\_Romania%20%281%29.pdf.

Until now there has been no other referendum related to amendments to the existing Constitution or the approval of a new one.

At the next level – that of the electoral and Parliamentary systems – in Romania the referendum as an instrument of direct democracy was used twice. Thus, on the same day with the first elections for the European

Parliament (after Romania became on 1 January 2007 a full member of the European Union) a referendum on changing the voting system to singlemember voting was held in Romania (Asociația ProDemocrația 2008). The referendum was called by the then President, Traian Băsescu, on 23 October 2007 when the Parliament of Romania failed to meet the deadline he had set for passing the changes of the voting system in Romania (Asociația ProDemocrația 2008).

The Romanian voters were asked to say "yes" or "no" to the following question: *Do you agree that, beginning with the next elections that will be held for the Romanian Parliament, all deputies and senators should be elected in single-member constituencies, based on a majority vote in two rounds?*

The reform of the voting system would in fact lead to the elections of Senators and Deputies in a two-round electoral system (Asociația ProDemocrația 2008) and would also reduce the number of members of the Parliament by around 20% (Asociația ProDemocrația 2008).

Source: Asociația ProDemocrația, 2008. http://www.apd.ro/files/publicatii/brosura\_ uninominal.pdf.

Due to the fact that the Law no. 3/2000 on organizing and holding the referendum states that, in order to validate the referendum results, the turnout should be *at least half plus one of the persons registered on electoral lists* (Asociația ProDemocrația 2008) the results of the referendum were declared invalid by the Constitutional Court of Romania (Asociația ProDemocrația 2008).

On 22 November 2009, on the same day with the first round of the Presidential elections, a referendum on modifying the size and structure of the Parliament from the current bicameral one with 137 senators and 334 deputies to a unicameral one with a maximum of 300 seats was held (Dinu 2009).

The electors were asked two questions on two separate ballots as follows: *1. Do you agree to Romania's adoption of a unicameral Parliament?2. Do you agree to the reduction of the number of parliamentarians to a maximum of 300 persons?*

*Table 4.* The national referendum of 22 November 2009

Source: Biroul Electoral Central, 2009. http://www.bec2009p.ro/Documente%20PDF/ Rezultate/Rezultate%20finale%20turul%20I/RPU\_BEC.pdf.

*Table 5.* The national referendum of 22 November 2009

Source: Biroul Electoral Central, 2009. http://www.bec2009p.ro/Documente%20PDF/ Rezultate/Rezultate%20finale%20turul%20I/RPU\_BEC.pdf.

To validate the referendum, as the Law 3/2000 stated, a turnout of 50% +1 of the number of voters was needed. The Romanian Central Electoral Commission validated the referendum stating that 50.16% (9,320,240 of the 18,293,277) of eligible voters had cast their votes (Biroul Electoral Central 2009).

Despite the fact that the referendum of 2009 on the parliamentary reform was validated immediately by the central authorities, no further action was taken after that moment to implement the will of the people and the Parliament remains both bicameral and with well over 300 members.

The two referendums on the impeachment of the president (2007 and 2012) marked the new use of these direct democracy instruments in the recent history of Romanian democracy.

On 19 April 2007 the Romanian Parliament suspended President Traian Băsescu (Institutul "Ovidiu Șincai" 2007) and a national referendum was to be held on this issue (Institutul "Ovidiu Șincai" 2007) to decide by popular vote whether to dismiss the incumbent president (Institutul "Ovidiu Șincai" 2007).

According to the law (article 5(2) of the Law 3/2000 on the organization and holding of a referendum), an absolute majority of all Romanians with the right to vote is required for a dismissal referendum to be valid (50% +1), which means that almost nine million people would have had to vote against Băsescu (Institutul "Ovidiu Șincai" 2007). Otherwise, he would regain full prerogatives. If President Băsescu had been dismissed by the referendum, early presidential elections would have been called in 2007 (Institutul "Ovidiu Șincai" 2007).

The question printed on the ballots was (Institutul "Ovidiu Șincai" 2007): *Do you agree with the removal of the President of Romania, Mr. Traian Băsescu, from office?*

It should be noticed that the question was modified to include the name of the president even though article 9 in the Law 3/2000 already established the content of the question without names of presidents (Institutul "Ovidiu Șincai" 2007).

On 24 April, the Romanian Parliament voted to organize the referendum on 19 May 2007 and included an amendment proposed by the opposition which stipulated that in case the Constitutional Court found the referendum invalid, the Parliament would decide on further procedures (Institutul "Ovidiu Șincai" 2007).

The Romanian Parliament's decision started a debate on the referendum issue generated by the law not providing for the hypothesis that the referendum to dismiss the president would be considered formally not valid by the constitutional Law on account of low turnout.

According to paragraph (2) of Article 5 in the Law 3/2000, a referendum is valid only if the majority of citizens registered in the electoral lists participate in the referendum, regardless of their votes or the validity of their votes once they have participated. This condition applies to all referendums and only if met, the referendum will be regarded by the Constitutional Court as formally valid. But neither the Constitution nor the law on referenda give any solution to the invalidity issue, as to what would happen afterwards with the legal effects of the suspension vote or the re-instatement of the President with full prerogatives (Institutul "Ovidiu Șincai" 2007).

Source: Institutul "Ovidiu Șincai", 2007. http://www.fisd.ro/PDF/mater\_noi/Referendum\_ Raport\_FINAL\_1%20iunie%202007.pdf.

Due to the fact that turnout was under the threshold prescribed by law (50% +1 of the number of voters, that is, around nine million voters recorded at the polls) (Institutul "Ovidiu Șincai" 2007) the Romanian Central Electoral Commission invalidated the referendum, its results having no legal force and the President remained in office (Institutul "Ovidiu Șincai" 2007).

Five years later, in 2012, a new national referendum on the impeachment of President Traian Băsescu was held (Romanian Academic Society 2012)*.*  The referendum was required after the Parliament voted in favor of impeaching the incumbent president on 6 July 2012, and it had to take place

within a month after the vote (Romanian Academic Society 2012). On the day before the vote in the Parliament, the government changed the Law 3/2000 to enable an impeachment referendum to be valid if a majority of voters voted in favor (Romanian Academic Society 2012).

Following the criticism of this tactics from the European Union (Romanian Academic Society 2012), which accused the Parliament of *undermining the rule of law* (Romanian Academic Society 2012) the leaders of the main opposition parties (Victor Ponta and Crin Antonescu) called for obeying the ruling by the Constitutional Court to require a turnout of 50% plus one to render the result of the referendum valid (Romanian Academic Society 2012).

The opinion polls made in July 2012 showed a majority of Romanians favoring the impeachment of the President (Romanian Academic Society 2012), but they also estimated a low turnout - around 46% (Romanian Academic Society 2012).

On 29 July 2015 the voters were asked the question: *Do you agree with the dismissal of the President of Romania, Mr. Traian Băsescu?*

Once again, as in the case of the referendum of 2007, the question was modified to include the name of the President even though the Law 3/2000 stated that the question should not make any reference to a specific person (Romanian Academic Society 2012)

The exit polls made on 29 July 2012 showed that more than 80 % of the voters voted for the impeachment of the President, but the turnout was under the 50% required by the Law 3/2000 – in fact, it was of 46.24% (Romanian Academic Society 2012).

*Table 7.* The national referendum of 29 July 2012

Source: Romanian Academic Society, 2012. http://sar.org.ro/romania-economia-politica-aunei-crize-constitutionale/

The turnout was estimated to have been around 51.6% in rural areas and 41.8% in cities, with Bucharest at 40.0% (Romanian Academic Society 2012). The highest turnout was reported in Muntenia with a turnout of over 50% and some counties having over 60%, including Olt, 74.7%; Mehedinți, 70.5%; Teleorman, 70.2%; Giurgiu, 60.7%; and Vâlcea, 60.4%. Eight polling stations in Olt County had a turnout of over 100%, the highest being 126% (Romanian Academic Society, 2012). In other parts of Romania the turnout was below 50%, with the lowest level in Transylvania. The counties with the

lowest turnout were Harghita, 11.6%; Covasna, 20.6%; Satu Mare, 28.2%; Mureş, 34.0%; and Arad, 35.0% (Romanian Academic Society 2012).

Under the law, the Constitutional Court issues the final verdict in the case of the validity of the referendum. Final results from the Central Electoral Bureau were published on 1 August 2012. On 2 August 2012, the Court announced that a verdict for the validity of the referendum would be pronounced after 12 September 2012 (Romanian Academic Society 2012). Up to that date, all the authorities would have to clear up the electoral lists, in order to calculate correctly the voter turnout. Finally, the verdict would be presented in a joint session of Parliament. Meanwhile, the Constitutional Court rescheduled the verdict for 31 August 2012 (Romanian Academic Society 2012). A second rescheduling placed the verdict on 21 August 2012 (Romanian Academic Society 2012) The Constitutional Court of Romania subsequently declared the referendum invalid, reinstating Băsescu as President of Romania, which took place on 28 August 2012 (Romanian Academic Society 2012).

The Romanian Constitutional Court declared the referendum invalid in September 2012 (Romanian Academic Society, 2012) by a vote of 6–3 due to the fact that the turnout did not reach 50%+1, as requested by the Law 3/2000 and, consequently, the President remained in office until the presidential elections in November 2014.

At the end of 2013 and in the first months of 2014 (Vaslui County) a protest movement ("revolt") took place in Pungeşti village after Chevron Company had obtained a building permit for the location of the first derrick for shale drilling in Vaslui County. Moreover, in 2013 Chevron Company received all the necessary approvals from the state authorities for soil exploration in a perimeter within the Siliştea village in Pungeşti (Vesalon and Creţan 2015). Three years later – in March 2016 – a referendum on "local interest issues" was organized in Pungeşti (Vesalon/Creţan 2015). Although the results of the referendum are still under debate in Court (Vesalon/Creţan 2015), the Pungeşti case showed some strength and weakness of the Romanian instruments of direct democracy at the local level.

On 14 October 2013 a manifestation of the people from Pungeşti against Chevron started with 150 protesters. The protesters blocked the access of Chevron machineries to install the derrick near the village. Protests escalated in the next three days. On 16 October, more than 500 villagers of Pungeşti and surrounding localities, joined by activists from Bârlad, Iaşi and Bucharest, formed a human shield in front of the bulldozers (Goussev/Devey/Schwarzenburg/Althaus 2014). On the spot, over 200 gendarmes were mobilized because the Vaslui-Gârceni county road was blocked by angry protesters (Goussev/Devey/Schwarzenburg/Althaus 2014). Likewise, the gendarmes formed a cordon meant to release the traffic. The protesters tried to break the cordon, but the gendarmes intervened in force. In

fierce clashes between the protesters and gendarmes 10 people were injured, including an 81 year old man who suffered a panic attack (Goussev/Devey/Schwarzenburg/Althaus 2014). The protesters installed tents and gathered food and warm clothes as they continued their protest overnight. They also created an Internet TV channel, TV Pungeşti, that covered 24 hours of 24 the events on the protest camping site (Goussev/Devey/Schwarzenburg/Althaus 2014). Even if it did not appear on the TV program, TV Pungeşti amassed up to 75,000 views in a month and a half (Goussev/Devey/Schwarzenburg/Althaus 2014).

About one month later, after Chevron representatives announced the suspension of works in the area, civil conflicts re-emerged. On 2 December, when Chevron decided to resume exploration operations, an impressive convoy of gendarmes, police and firefighters went to the area before the break of dawn to secure the movement of Chevron machineries. Gendarmes occupied the village, blocking all access points, preventing entry or exit from the perimeter for 24 hours (Goussev/Devey/Schwarzenburg/Althaus 2014). Early in the morning, about 100 villagers blocked the road, trying to obstruct the access of Chevron equipment to the concessioned land (Goussev/Devey/Schwarzenburg/Althaus 2014). Hundreds of gendarmes were mobilized on the spot and ordered the protesters to clear the way. While activists claimed that around 1,000 law enforcers were taking part in the operation, police put the number at 300 (Goussev/Devey/Schwarzenburg/Althaus 2014). In the ensuing clashes, two people were injured and 30 were loaded into vans and transported to the police station (Goussev/Devey/Schwarzenburg/Althaus 2014).

Maria-Nicoleta Andreescu, executive director of the Helsinki Committee Association for the defense of human rights in Romania, declared afterwards (Vesalon/Creţan 2015): *There are important signs that indicate that the gendarmes' actions were at least abusive if not illegal. It is very clear that by restricting the access of the press in the area the authorities did not allow the public to be informed.*

The protests continued in the following days. They escalated, and the elderly, women and children rushed to fight against the gendarmes, throwing firecrackers. Security forces used tear gas and formed a human shield around the plot of land where Chevron would install the first derrick in Romania (Goussev/Devey/Schwarzenburg/Althaus 2014). The protesters broke the cordon of gendarmes and penetrated into the land concessioned to Chevron. Angry people threw stones at gendarmes and knocked down the entire perimeter fence installed by the U.S. company workers (Goussev/Devey/Schwarzenburg/Althaus 2014). Gendarmes regrouped and responded with force. The vans with the 22 people arrested during altercations were stopped by 50 protesters that lay on the roadway (Goussev/Devey/Schwarzenburg/Althaus 2014).

On 8 December, Chevron announced that it resumed work in the commune of Pungeşti, after they had suspended operations the day before because of violent demonstrations (Vesalon/Creţan 2015).

The command of Vaslui Police issued an order according to which the commune of Pungeşti became *a special area of public safety*, the fact that required strict control of people and vehicles crossing the locality (Vesalon/Creţan 2015).

On 26 March 2014, the Romanian Ombudsman sent a recommendation to the Minister of Internal Affairs on respecting citizen rights and freedoms, in the context of establishing a *special area of public safety* (Kadar 2014; Vesalon/Creţan 2015).

On 8 April, up to 200 villagers from Pungeşti and neighboring communes gathered near the Chevron site to protest against the company's intention to begin shale gas exploration. Protesters threw eggs and apples at the Chevron coach and clashed with law enforcers (Kadar 2014; Vesalon/Creţan 2015). The same month, on 25, another incident occurred in Pungeşti: the mayor of the commune was hiding in his office in the city hall, while an angry crowd demanded his resignation (Kadar 2014; Vesalon/Creţan 2015).

The protests of solidarity with the so-called "Pungești revolt" took place in Bucharest, Cluj-Napoca, Timişoara, and Sibiu (Kadar 2014; Vesalon/Creţan 2015). In Bucharest, more than 4,000 people gathered in University Square, from where they marched to the Government headquarters in Victory Square (Kadar 2014; Vesalon/Creţan 2015).

The "Pungești revolt" and accompanying movements were also extensively covered by the major media.

In October 2013, during a meeting of local councilors, it was agreed that a local referendum would be held on the use or banning of shale gas exploration and exploitation in the commune. Furthermore, one of the councilors demanded that the question of resignation of the mayor be included in that referendum (Ziare.com 2016a).

In the meantime, representatives of the Chevron Company announced, on 17 October, that they would suspend work on shale gas exploration in Siliştea, Pungeşti commune. The statement said that the company's priority was (Ziare.com 2016a): *To conduct these activities in a safe and environmentally responsible manner.*

Despite the fact that Chevron ceased to operate in the Vaslui County, a referendum was held in Pungeşti on March 20, 2016 on the dismissal of the mayor in office, since he was held responsible for the agreement between the local administration and Chevron Company.

The referendum registered a turnout of 34.3%, of which one third voted for the dismissal of the mayor in office. The result caused new tensions within the community due to a low turnout of the voters and the regulations regarding the necessary results to validate a local referendum.

According to the law, a local referendum is regulated in Romania both by the Referendum Law (Law 3/2000) and the Local Government Act (Law 215/2001). To be more specific, while the first law (Law 3/2000) provides that the referendum is valid if at least 30% of people registered in permanent electoral lists participate in it, the second one (Law 215/2001) requires a quorum of 50% plus one of the total constituency in order to validate a local referendum.

At present the final verdict concerning the results of the local referendum in Pungești is still under debate by the Court (Ziare.com 2016b).

Citizens' legislative initiative has been regulated in Romania by the 1991 Constitution (Article 74) and by the specific Law 198/1999 (Monitorul Oficial,2004). The way in which the Romanian Constituent Assembly and, further, the Romanian Parliament regulated it was assessed as "excessively cautious" by Romanian political scientists (Iordache 2011). The number of total signatures requested for the promotion of the citizens' initiative varied, and, in time, one could record a decrease in it– from 250,000 signatures, according to the Romanian Constitution to 100,000 signatures according to the Law 1989/1999. But the entire process of promoting it at the level of the Romanian Parliament is rather a complicated one: after the required number of citizens' signatures is reached, the proposal is sent to the Romanian Constitutional Court to verify the fulfillment of conditions stipulated by the Constitution and to validate (or invalidate) the lists of its supporters. If the proposal is accepted by the Romanian Constitutional Court, then the citizens' legislative initiative goes to the Parliament, which has the obligation to submit it to debate, but it can change, and may ultimately adopt or reject the initiative (Monitorul Oficial 2004).

In view of the complex process outlined above, the number of successful citizens' legislative initiatives was a small one over the last twenty-eight years.

In 2004 a citizens' legislative initiative requested at least 6% of GDP for Education. The proposal was submitted to the Parliament by an initiative group consisting of 19 people, mostly union leaders in education. In a few months they succeeded in collecting 190,135 signatures from citizens, almost double the number of signatures required by law. This bill entered the parliamentary debate on August 30, 2004, and at the outset, all parties represented in Parliament declared their full support for this project. After being adopted by the Chamber of Deputies, the project reached the Senate, the decisional Chamber, where it was blocked in April 2005 when the Committee on Budgets of the Chamber of Deputies requested an additional report. In the meantime, the Law of Education had been amended by the Government, and the Education Ministry received 6% of GDP in 2007.

Meanwhile, the citizen's initiative remained blocked at the Romanian Senate until 2010, and starting with 2011 it remained without its object, as the old education law was repealed with the entry into force of the new Law on National Education (Law 1/2011).

On 23 October 2009, an initiative committee headed by a GP from Mures county, Dr. Dorin Gabor, at that time vice president of the National Society of Family Medicine, submitted to the Senate a bill which provided that the total annual funds for financing health would be at least 6% of GDP and the annual fund for primary care would represents less than 12% of the National Unique Health Insurance. The proposal never reached the Parliament due to the fact that during the verification procedure of the lists of signatures, the Constitutional Court found a number of cases that were not certified by a signature and the Constitutional Court decided that the initiative did not meet the constitutional requirements (Iordache 2011).

The third example of a citizen's initiative is related to the Romanian Constitution, namely the definition of the "family" as it appears in the Romanian fundamental law. On 20 June 2016 the Romanian Constitutional Court approved a proposal initiated by the NGO "Coalition for Family" to amend Article 48, paragraph 1 of the Romanian Constitution ("Family"). The proposal intends to change the current text of the Constitution which refers to marriage between spouses with the following statement: *The family is created through free marriage between a man and a woman, their equality and the right and duty of parents to ensure the upbringing, education and instruction of children* (Antena3 2016). At present the project is under debate in the Romanian Parliament.

#### **Conclusion**

As has been explained in the present paper, direct democracy is a real instrument in Romania, especially at the national level. In this case direct democracy is used mainly as a "weapon" in political battle and not as a structural way of expressing people's empowerment. At the same time, the activities of grass-roots movements are observable at the local level - they use the instruments and methods of direct democracy but its general image at this level is still weak and fragmented.

No research hypothesis presented at the beginning of the article was validated by our analysis. In other words, we cannot affirm that, on the one hand, the use of instruments of direct democracy in the process of exercising power is an indicator of the political awareness of the Romanian society at the national level. The national referendums were initiated and conducted by the political parties after 1989. At the local level, as the Pungeşti case study shows, the instruments of local democracy (e.g. referendums) were used with a certain delay, and also in relation to electoral campaigns (Ziare.com 2016b). At the same time, the complexity of the legislative process made the citizens' legislative initiative directly dependent on the games that the political parties play within the Parliament, as was obvious in the case of 2006 and 2009 proposals (Iordache 2011).

On the other hand, as the chronology of the instruments of direct democracy proved, the process of Romania's accession to the European Union did not have any impact on the development of direct democracy in this country. The increase in the number of national referendums in Romania after 2006 (four referendums) was related to the peculiarities of the use of this instrument of direct democracy in Romania (e.g. referendum). The most important peculiarity is directly related to the results of the Romanian presidential impeachment referendums (2007 and 2012). Due to the great popular debate surrounding the results of those referendums in Romania, it is possible to ask whether the tensions between the Parliament, Government and the President favor or not the use of presidential impeachment as a method of dealing with political conflicts. A possible answer is that although the Romanian semi-presidential system is predisposed to conflicts between the President, Parliament and Government especially when the head of state has to carry out his/her mandate while having to deal with a hostile parliamentary majority, we cannot point to a strict causal relationship between the tendencies of the semi-presidential form of government and the practice of suspension of the President (Dimulescu 2010: 129). Taking the nationalbased data into consideration we cannot now offer a robust answer to this question. To this end, we have to make a comparative analysis at the European level of the ways in which impeachment referendums operate in semi-presidential political systems – such as France, for example.

#### **References**

15\_Events\_SummerAcademy\_Romania%20%281%29.pdf

### Wojciech Ziętara

### Direct Democracy in Russia

### **Determinants**

The history of the Russian Federation as an entity of international law is relatively short because it dates back to 1991 and is connected with the collapse of the Union of Soviet Socialist Republics (USSR). Nevertheless, the Russian statehood is definitely longer and it goes back as far as the 9th century. Specific patterns of the political culture of the Russians were largely influenced by repressive regimes. In the 13th century the majority of Ruthenian lands were ruled by Tatar khans, who were defeated by the Moscow rulers in the 14th century. However, the political culture of the state of Muscovy was pervaded with Eastern traditions. Ivan IV (the Terrible) was one of the most known rulers of the Russian Empire who exercised power in a despotic way. During the reign of Peter the Great and Catherine I of Russia the absolute monarchy was consolidated. The Romanov dynasty ended its rule over Russia with the victory of the Bolsheviks in the October Revolution of 1917. In 1922 the Soviet Union (USSR) was born which became a totalitarian state under the rule of Vladimir Lenin and then Joseph Stalin (Broda 2007: 49). Political changes which started after Stalin's death limited repression of the citizens only to some extent. The state in its essence remained centralized, anti-democratic, and anti-civic.

In view of the foregoing, the model of political culture formed over centuries in Russia is characterized by the subordination of citizens to the state power. Russian and Soviet rulers were not subordinated to any civil control and that is why there are no democratic, civic and participatory attitudes among the citizens. Józef Tymowski (2011: 43) even said that *there has never been a civil society in Russia. The system of behavior and the system of values, both under the czarist and Soviet rule, did not have any or only a limited connection with the freedom of the individual. The civil society in contemporary Russia is still in the embryonic stage of development*. Victoria Dunaeva (2011: 106) similarly assessed the political culture in Russia saying that we are dealing with *weak* civil society and the problem of civil trust in Russia. At the same time, however, she stressed that valuable social initiatives are emerging at the local level, without being continued at the national level.

Jakub Potulski (2007: 225) summed up the subject: *the political culture of Russians was an important barrier in the process of democratization of the*  *country*, whereas the institutions of direct democracy can be utilized only with active civil participation. Otherwise, direct democracy may be used by the authorities to implement their own political aims. This can be exemplified by the institution of a referendum which was treated instrumentally in Russia . Initially, in 1917, the Bolsheviks saw the referendum as a method of guaranteeing the nation's right to self-determination. The 1924 Constitution of the Soviet Union granted each republic the right to leave the state but no referendum on this subject was held in the Soviet Union's history (Brady, Kaplan 1994: 178). A similar assessment should apply to the intentions of the Soviet authorities which, after introducing a referendum into the Constitutions of the USSR of 1977 (The Constitution of the Soviet Union 1977) (in Articles 5, 108, 115, 137) adopted neither regulations nor executive acts about it. Only the political system changes begun by Mikhail Gorbachev led to the adoption of the law on referendum on 27 December 1990 (Hill/White 2014: 18). Until that time, a referendum as an example of direct democracy was an institution which existed only theoretically while its implementation was impossible in practice.

A national referendum was held three times in the history of the Soviet Union and the Russian Federation. For the first time, still under the Soviet Union, a referendum was held on 17 March 1991.One question was asked at the Soviet Union level, whereas, at the level of the Russian Soviet Federative Socialist Republic (RSFSR), a second referendum question was added. The referendum which was held on 25 April 1993 was organized within the Russian Federation and the citizens answered four referendum questions. The referendum of 12 December 1993 was a constitutional one and the citizens voted on a new draft of the constitution. It should be stressed that the abovementioned referendums were organized at the downturn of the state of the Soviet Union and at the beginning of the Russian Federation and they served to strengthen the political-system position of the President and to legitimize his policy. After the approval for the political system model, the organization of referendums at the national level was abandoned. In order to limit the usage of this institution, legal solutions which hindered the organization of a referendum by the citizens were introduced. That is why a referendum remained a domain of the central authority (the president of the Russian Federation).

#### **Formal-Legal Dimension**

The legal system of the Russian Federation is understood in this section as the Constitution of the Russian Federation and the Constitutions of twenty two federal Republics that make up the Russian Federation (without the statutes of the particular territories, regions (okruga), cities of federal importance, autonomous regions, and autonomous areas (oblasts). Furthermore, the article refers to the level of federal constitutional law omitting federal acts and the decrees of the President of the Russian Federation treating them as lowerlevel legal acts.

The most important legal act in the Russian Federation is the Constitution adopted as a result of the constitutional referendum of 12 December 1993 (The Constitution of the Russian Federation 1993). Russia is a federal state consisting of many entities (subjects) which constitute the state community. Pursuant to Article 65 of the Constitution of the Russian Federation, the Russian Federation includes republics, territories, cities of federal importance, autonomous regions, and autonomous areas. Republics occupy the most important position in the system of federal subjects (entities) (Zieliński 2005: 43). The essence of separate autonomy is the fact that particular republics have their own constitutions. They were adopted in the period between 1993 and 2003, and the last one in 2014 (The Crimea Constitution 2014). The constitutions of the republics have to comply with the federal law, which is why the legal regulations on a referendum contained in the Constitution of the Russian Federation were reflected in the Constitutions of particular Federal Republics. The Constitutions are coherent as far as the language and their position in constitutional classification. Five main articles on referendum were placed in the Constitution of the Russian Federation; all of them were repeated in the constitutions of particular republics.

Legal regulations of referendum as an institution of direct democracy were adopted in the Constitution. Article 3 sections 1 and 2 stipulates that the only source of power in the Russian Federation will be its multinational people and that they will exercise their power directly, and also through the bodies of state power and local self-government. According to Article 3 section 3, the supreme direct expression of the power of the people will be referenda and free elections. Eugeniusz Zieliński (2005: 20) concluded that the term *people* in this article was used in a socio-political sense, meaning *all those who make up a community tied together with personal fates and who exist in the federal Russian state*.

Another reference to the institution of a referendum may be found in Chapter II "Rights and Freedoms of Man and Citizen", in which a list of rights and freedoms was specified. Article 32, section 1 says that *Citizens of the Russian Federation shall have the right to participate in managing state affairs both directly and through their representatives*. Article 32 section 2 specifies that this right comprises the participation of citizens in referendums. It should also be stressed that Article 33 of the Constitution guarantees that *Citizens of the Russian Federation shall have the right to address personally,*

*as well as to submit individual and collective appeals to state organs and local self-government bodies*.

The institution of a referendum is also referred to in Chapter IV The President of the Russian Federation, where under Article 84 the President of the Russian Federation *shall announce a referendum according to the rules fixed by the federal constitutional law*. At the same time Article 92 regulates a negative situation because *In all cases when the President of the Russian Federation is incapable of fulfilling his duties, they shall temporarily fulfilled by the Chairman of the Government of the Russian Federation. The Acting President of the Russian Federation shall have no right to dissolve the State Duma, appoint a referendum, and also provisions of the Constitution of the Russian Federation*.

Chapter VIII refers to the institution of a referendum in the context of the rules on local self-government. Article 130 section 2 says that *Local selfgovernment shall be exercised by citizens through a referendum, election, other forms of direct expression of the will of the people, through elected and other bodies of local self-government*. Zielinski (2005: 90) sums up that the system of local self-government is composed of rural and urban regions, quarters in towns, villages, settlements, and small towns. This system consists of the meetings of inhabitants, meetings of the representatives of residents, elective representative organs and executive bodies that decide on local affairs. Autonomy (self-government) is also manifested in the participation of the residents in referendums and general elections in order to elect their representatives to elective bodies.

Pursuant to Article 135 a referendum was included in the mode of adopting the new Constitution of the Russian Federation. The draft of the amendment of the Constitution of the Russian Federation will be considered adopted if over half of the voters who came to the polls supported it and on condition that over half of the electorate participated in the referendum.

The Constitutions of twenty two Republics of the Russian Federation are similar to the content and layout of the Constitution of the Russian Federation. The constitutional norms on a referendum were also included in the Constitutions of particular Republics. The differences concern the numbering of the Articles although it is a matter of technical nature. In most cases, however, the contents of the Articles remained the same. It should be stressed that in the Constitutions of selected Republics, (the Republic of Altai, Republic of Buryatia, Karachayevo-Circassian Republic, Republic of Karelia, Republic of Sakha (Yakutia), Republic of North Ossetia – Alania, Republic of Tatarstan, Republic of Tuva, and the Udmurtian Republic) it was specified that possible changes in territorial borders had to be adopted through a referendum. Moreover, a referendum and at the same time the adoption of laws on a referendum was included in the competence of the legislative bodies. In most cases (except the Republic of Bashkortostan, Republic of

Karelia, and the Republic of Tuva) a meeting of representatives decides on holding a republican referendum (constitution.garant.ru/region).

After the adoption of the Constitution of the Russian Federation in 1993, two federal constitutional laws regulating the mode and scope of the organization of a referendum were adopted. The Law of 10 October 1995 consisted of six chapters and 43 articles while the law of 11 June 2004 was more specific because it comprised fifteen chapters and 93 articles.

On 10 October 1995 the law On Referendum in the Russian Federation was adopted. Tits provisions may be assessed as restrictive because over the period of nine years of its binding force no national referendum was held. The Law stated that the change of the Constitution would be effected through an obligatory referendum. At the same time, the subject scope of a referendum excluded the change of status of federal subjects, shortening or prolongation of the terms of office of the Russian Federation President, the Federation Council, or of the State Duma, the announcement of early elections, adoption and changes of the state budget, the change of financial duties of the citizens towards the state, and the tax regulation and the right to amnesty. The motion for calling a referendum must be signed by at least two million citizens of the state (Kużelewska/Bartnicki 2010, 85).

On 11 June 2004, the State Duma of the Russian Federation adopted the amended federal constitutional law On Referendum in the Russian Federation, which came into force on 28 June 2004. The law was amended in 2006, 2008, 2014, and 2015 (Federal Constitutional Law 2004).

In comparison with the repealed law of 1995, this law was more specific and also more restrictive because it limited the possibilities of organizing a referendum by the citizens. In the preface to the law, it was stated that (*…*) *referendums shall be the supreme direct expression of power that belongs to the people* (*…*).

Chapter I General Provisions (Articles 1-13) specified the mode of organization of a referendum. The provisions set forth the basic principles, i.e. a universal, equal, direct, secret, and free referendum (Article 2). Citizens of the Russian Federation who have attained to the age of 18 years will be entitled to vote in a referendum. The scope of a referendum question (questions) was defined in a negative way i.e. by enumerating the areas that could not be decided through referendum were enumerated. Consequently, the following were excluded: the change of the status of federal subjects, shortening or prolongation of the term of office the Russian Federation President, the terms of the Federation Council, or the State Duma, the early or adjourned elections to the above mentioned bodies, the election of representatives to public functions in the Russian Federation, the election of people participating in federal authorities or federal government agencies, the selection of people appointed to a particular position as a result of international agreements adopted by the Russian Federation, adoption of

emergency measures in order to provide public security and health (Article 6). Referendum questions must be formulated in such a way that they prevent various interpretations. A referendum will not be held if a martial law or a state of emergency have been imposed on the territory of the Russian Federation or on the territory in which the referendum is to be held or within a part of this territory, or within three months after the martial law or the state of emergency have been lifted (Article 8). Furthermore, legislation forbade holding a referendum during the election campaign at the federal level, and during the last year of term of office of the President, the State Duma, and the Federation Council (Article 8).

Chapter II, Initiatives to Hold a Referendum, (Articles 14-23), specifies the questions concerning the referendum initiative. Article 14 stated that the right to initiate a referendum was vested in the citizens, no less than 2 million, with the reservation that no more than 50 thousand of them live on the territory of one federal entity, or a total of them outside the borders of the Federation.

A referendum is announced by the President of the Russian Federation within 10 days from the date of receiving the documents. The President sets the date of the referendum on Sunday within 60-100 days from the date of official announcement. The date of a referendum cannot be joined with the date of elections to the bodies of federal authorities (Article 23). In case of the application of Article 135 on amending the Constitution, the Constitutional Assembly (Article 21) takes a decision to hold a referendum, while in case of a referendum on the adoption of international treaties and agreements (Article 22), the initiative to hold one is launched by the federal authorities.

Chapter III, Referendum Commission, (Articles 24-35) presents the system of referendum commissions functioning in the Russian Federation. Chapter IV defines the status of observers, foreign observers, and media representatives (Articles 36-38). Chapter V describes the procedure for the formation of referendum commissions in military units and abroad (Articles 39-41) and Chapter VI presents the procedure for making the list of referendum participants (Articles 42-44). Chapter VII describes the questions of funding the referendum (Articles 45-46).

Chapter VII is devoted to the problem of informing and promoting the referendum process (Articles 54-68).In Russia the publications of polls and surveys are banned within last five days of a referendum campaign (Article 56); on the day of the referendum, until the last polling station is closed on the territory of the state, the results of the referendum are not allowed to be published (Article 55). In the case of the draft version of the new Constitution it has to be published in the state press and on the Internet (Article 57). Chapter IX presents the procedure of voting (Articles 69-75). The Central Election Commission may start the early referendum vote (not earlier than 15 days prior the proper date of a referendum). The voting is held between 8 a.m. and 8 p.m. of the local time. Chapter X presents the issues connected with the determination of the results of the referendum (Articles 75-81). Chapter XI describes the way of announcing the results of a referendum (Articles 82-83). The Referendum Act concludes with Articles XII – XV. They define the manner of keeping the documents, ways of appeal in cases of infringement of the referendum law, responsibility for the infringement, and they contain final and temporary provisions.

The system of legal acts on the referendum (except federal constitutional laws) is supplemented with: Federal Law (2002).

#### **Practical Dimension**

The practical dimension of direct democracy in the Russian Federation is limited to the organization of referendums at three levels: the federal (national) level, at the level of entities included in the Russian Federation (Republics, territories, regions (okruga), cities of federal importance, autonomous regions, and autonomous areas) and at the local level (parts of entities included in the Russian Federation). It is the most developed scope of referendums in federal states (Musiał-Karg 2008: 69). At the federal level two referendums were held: on 25 April 1993 and 12 December 1993 whereas on 17 March 1991, in the Russian Soviet Federative Socialist Republic (RSFSR) and the USSR, two referendum were held which substantially influenced the shape of the political system of the future state. All the foregoing referendums were included in the present analysis, which also referred to some selected referendums at the republican and local levels.

The referendum question asked to all the citizens of the Soviet Union in the national referendum of 17 March 1991 was: *Do you consider necessary the preservation of the Union of Soviet Socialist Republics as a renewed federation of equal sovereign republics, in which the rights and freedoms of an individual of any nationality will be fully guaranteed?* Ronald J. Hill and Stephen White (2014: 20) reiterated that the referendum question should be formulated in a simple, unambiguous, and decisive way, whereas this question did not satisfy the above mentioned criteria e.g. *What will be the relations among the entities in this restored federation? How would the rights of particular nations be guaranteed? How is the sovereignty of particular republics understood?* That is why it should be said that without complementary legal acts in which the legal-political position was specified, the referendum was rather a plebiscite for or against the Soviet Union.

Russia was one of the five republics in which the referendum question was changed and an additional referendum question was added (Brady/Kaplan 1994: 190-191). This additional question was: *Do you think it necessary to introduce the post of RSFSR President, who would be elected by a republic-wide vote?* (Jach 2011: 111). In the case of the first question the turnout was 75.4% of the registered voters. 71.3% voted for the preservation of the USSR. 26.4% were against and 2.3 cast invalid votes (Brady/Kaplan 1994: 191). In case of the second question the turnout was 75.09% of the registered voters. Out of 101,776,550 of registered voters 76,425,110 people participated in the referendum. Out of 74,791,427 of valid votes, 53,385,275 (69.9%) were for the introduction of the post of the RSFSR President; 28% were against (21,406,152 voters) and 2.1% (1,633,683 people) cast invalid votes. Following the results of the second question, on 12 June 1991 the presidential elections were held in which Boris Yeltsin gained the post of the President (having won 57.3% of votes) (Jach 2011: 123).

A conflict between the executive and legislative powers steadily grew after the presidential elections in 1991. The formal scope of the President's competence limited the actions of Boris Yeltsin, who strove to widen his powers, whereas the Congress of People's Deputies (CPD) and the Supreme Council (SC) wanted to limit the presidential power. Consequently, the institution of a referendum was utilized as an instrument that could solve this lasting political conflict (Walker 2003: 73). In my assessment, the referendum was used in an instrumental way. On 29 March 1993, the CPD approved the content of the four referendum questions and the referendum was planned to be held on 25 April 1993. The questions were:

On 21 April 1993 the Constitutional Court of the Russian Federation judged that the results of the referendum would be binding if at least 50% of the registered voters answered "yes". However, in case of questions 1 and 2 the calculation should be based on the number of participants in the voting, whereas in case of questions no. 3 and no. 4 the calculation should be done on the basis of the number of registered voters (Zieliński 1996: 159); the citizens who did not participate in a referendum vote were formally regarded as the citizens who were against early presidential and parliamentary elections. In this way, the ruling of the Constitutional Court preserved the existing legal-political status in view of the turnout in the referendum of 1991.

*Table 1.* The national referendum of 25 April 1993

\*the number of registered voters was the basis of calculation. Source: http://www.c2d.ch (27 October 2016).

Out of 107,310,373 registered voters, 69,222,585 people took part in the referendum (64.51%). The confidence in the President B. Yeltsin was expressed by 59.95% of the participants in the referendum. The economic and social policy conducted by the President and the Government was supported by 54.35% of the participants; the questions concerning early elections for the President and for the People's Deputies of the Russian Federation did not win the required majority (31.71% and 43.08% of registered voters respectively) (www.c2d.ch). If the number of participants in the referendum were taken as the basis for calculation, then in both cases the participants would vote for early elections. However, as Anna Jach (2011: 283) rightly stressed, *the results of the referendum did not provide grounds for dissolving the Supreme Council, which was the most important to the President*. The lack of the unambiguous resolution of the referendum caused the political conflict between the executive and legislative bodies to persist, and it continued to determine the Russian political scene until it was resolved by force. With the dissolution of the Supreme Council and the Congress of People's Deputies by the President's decree of 21 September 1993, the conflict escalated, culminating on 3 October 1993 when demonstrators took over the White House. The army, which supported the President's authority, stormed the Supreme Soviet building (Medvedev 2000: 103-120). In this way the presidential power center pacified the communist political opponents, imposing the political system with the superior position of the President (Ostrow/Satarov/Khakamada 2007: 38). However, the President lacked formal legitimization of his non-legal and forcible actions to fully seize power. In order to do so, the institution of a national referendum was utilized.

The constitutional referendum of 12 December 1993 became part of the process of the President achieving the dominant position in the system of the legal organs of the Russian Federation. It should be emphasized that it was the presidential power center that was the initiating side which imposed the mode of drafting a new constitution, which was easier because with the pacification of communist deputies the political opposition was effectively eliminated. The final draft submitted by the President was supported by the members of the Constitutional Convention (443 out of 685 opted for the draft). As the Parliament was dissolved, the only possible way of adopting the draft constitution was a national referendum. In his decree of 15 October 1993 the President announced the mode of adoption of a new constitution through referendum. In order to adopt the constitution, at least half of the registered voters had to take part in the referendum and the majority of them would have to vote "for" (Jach 2011: 361-362). Some conclusions were drawn from the April referendum: firstly, the voters participating in the voting should decide on the result of a vote, without taking into consideration the number of registered voters; secondly, there should be only one referendum question: that is why only one draft rather than many drafts should be voted on.

The constitutional referendum was organized simultaneously with the elections to the lower chamber of the Federal Assembly – the State Duma. The simultaneous organization of both the parliamentary elections and the constitutional referendum might have an influence on the increased public interest in taking part in both political events.

In the constitutional referendum the citizens of the Russian Federation answered the question: *Do you agree to the constitution of the Russian Federation?* 58.187.755 registered voters took part in the vote (being a majority of 54.8%). 58.43% of participants in the referendum voted "For" the adoption of the new constitution (see Table 2).

*Table 2.* The national referendum of 12 December 1993

Source: Results of voting in the national referendum on the draft constitution of the Russian Federation of 12 December 1993 (Итоги всенародного голососования по проекту Консституции Российской Федерации 12 декабря 1993 года). http://cikrf.ru/banners/vib\_arhiv/referendum/1993\_ref\_itogi.html (10 November 2016).

The greatest support, over 80%, was reported in the Khantia-Mansi Autonomous Okrug (District) (81.84%), Taymur Autonomous Okrug 81.80%), Komi-Permyak Autonomous Okrug (81.44%), Ust-Orda Buryat Autonomous Okrug (80.89%), and in Yamalo-Nenets Autonomous Okrug

(80.34%). However, it should be said that the above mentioned Autonomous Okrugs are not numerous as far as the population size is concerned e.g. 102,909 people were entitled to vote in the Komi-Permyak Autonomous Okrug. For comparison, the results in the biggest entities of the Russian Federation need to be mentioned. In the Moscow Oblast, 62.94% of voters opted for the new constitution (5,374,056 people were entitled to vote). In Moscow, the city of federal importance, 69.94% of the registered voters supported the constitution whereas in Sankt Petersburg, the city of federal importance, 71.61% of the voters voted for the constitution. On the opposite side were two republics in which less than 30% of the voters supported the constitution. They were the Republic of Dagestan (20.86%) and Karachay-Cherkess Republic (28%). Moreover, the Chechnya Republic boycotted the constitutional referendum because its people did not acknowledge the jurisdiction of the Russian Federation on the territory of the former republic (Results of voting 1993).

On 25 December 1993 the Constitution of the Russian Federation was adopted in the constitutional referendum closing a temporary period of the country's development and defining the Russian political system (Podolak 2014: 312). It is noteworthy that this constitutional referendum of 1993 was the last one organized at the national (federal) level. In my assessment, the foregoing situation may be the sign of the instrumental treatment of a referendum in political fight in order to legitimize the political system with the superior position of the President of the Russian Federation. In Russia, a referendum at the national level cannot be perceived as an instrument of mobilizing the citizens and the binding legal rules simply limit this activity. Consequently, I think that there is no political will of the ruling elites to develop direct democracy because it may constitute a real danger to the stability of the existing political system.

At a level of the entities (subjects) included in the Russian Federation one can name eleven cases of the organization of a referendum on the territory of particular republics. In the Tuva Republic three referendums were held, in the Chechnya Republic five referendums were formally held but due to the fact that they were held on one day, the voting was carried out only twice; in the Kabardino-Balkar Republic there were two referendums, and in the Republic of Tatarstan the institution of referendum was used only once.

In case of the Tuva Republic, parallel to the constitutional referendum of the Russian Federation, the constitutional referendum on the ratification of the constitution adopted by the Grand Khural of Tuva was organized. The separatist tendencies of the citizens of the Republic were confirmed in both votes because, on the one hand, the Constitution of the Republic was adopted but on the other hand the citizens of the Republic said "no" to the Constitution of the Russian Federation (only 31.21% of the citizens of the Republic voted "yes"). However, since the compliance of the Constitution of

Tuva with the Constitution of the Russian Federation was challenged, the central authorities forced the Grand Khural into preparing and adopting a new draft of the Constitution (on 6 May 2001. The Constitution was supported by 82.35% of the voters and the turnout was 61.04%. On 11 April 2010 the third constitutional referendum was held. This time 11 amendments to the Constitution were voted on, *inter alia* the introduction of a bicameral parliament and strengthening of the power of the Prime Minister. The amendments were accepted by the citizens in the voting (www.c2d.ch).

*Table 3.* The republican referendum in the Kabardino-Balkar Republic of 29 December 1991

Source: http://www.c2d.ch (31 October 2016).

*Table 4.* The republican referendum in the Republic of Tatarstan of 21 March 1992

Source: http://www.c2d.ch (31 October 2016).

*Table 5.* The republican referendum in the Tuva Republic of 12 December 1993

Source: http://www.c2d.ch (31 October 2016).

*Table 6.* The republican referendum in the Kabardino-Balkar Republic of 1 January 1994

Source: http://www.c2d.ch (31 October 2016).

*Table 7.* The republican referendum in the Tuva Republic of 6 May 2001

Source: http://www.c2d.ch (31 October 2016).

*Table 8.* The republican referendum in the Chechnya Republic of 23 March 2003

Source: http://www.c2d.ch (31 October 2016).

*Table 9.* The republican referendum in the Chechnya Republic of 2 December 2007

Source: http://www.c2d.ch (31 October 2016).

*Table 10.* The republican referendum in the Tuva Republic of 11 May 2010

Source: http://www.c2d.ch (31 October 2016).

Five referendum questions were voted on in the referendum mode in the Chechnya Republic. Three referendums on the adoption of the Constitution and election law to the parliament and to the post of the president were held on 23 March 2003; two referendums on the introduction of amendments to the constitution and changes in parliamentary election law were held on 2 December 2007. Both the referendums of 2003 and of 2007 had positive results (www.c2d.ch). However, it should be stressed that although the conflict in the Republic was gradually coming to the end (since 2003) owing to the Chechenization policy of the Russian Federation, there were still Russian military troops stationed in the Republic (Falkowski 2007: 20-21). The organization of the referendum during the war should be negatively evaluated and regarded as an instrument which served to legitimize the local authoritarian regime. In the referendum of 2007 the turnout was almost a hundred per cent, with the still existing problem of Chechnya refugees finding shelters in the neighboring Republics or even in other states. Such practices should raise reservations because they prevented the proper use of the instrument of direct democracy and simply led to its grotesque form.

In the Republic of Tatarstan a referendum was held to announce the independence. The referendum was held on 21 March 1992, and the referendum question was: *Do you agree that the Republic of Tatarstan is a sovereign state, a subject of international law, building its relations with the Russian Federation and other republics (states) on an equal basis?*. With a high (82%) turnout, 62.23% of the participants voted "for" the Republic's independence (www.c2d.ch). However, the Constitutional Court of the Russian Federation judged that both the referendum and the adopted constitution were unconstitutional and that they did not comply with the Constitution of the Russian Federation. Nevertheless, unlike in Chechnya, the process of regaining control over the Republic was gradual and peaceful. In 1994 the Treaty establishing the division of competence between the Russian Federation and Tatarstan was signed and in 2002 Article 1 section 1 was introduced into the Constitution of the Republic of Tatarstan, in which Tatarstan was defined as a part of the Russian Federation. It should be said that despite the formal change of the status of Tatarstan, a great political activity among the Tatars and the use of a referendum as an instrument of creating the local community is observable. It can be best perceived based on the number of organized referendums in particular republics at the local level.

In case of the level of the Russian Federation it should be said that referendums are organized in order to announce independence, adopt of a new constitution or introduce amendments to the constitution, adopt of a new legal act of great importance, and make territorial changes in particular entities. In view of the foregoing it should be concluded that referendums have a significant scope of problems and this is the reason why they may contribute to increased civil participation and shaping democratic attitudes. Nevertheless, they may be also used to legitimize the authoritarian power.

3527 local referendums were held in the Russian Federation between 2003 and 2017 (by 31 December) (vybory.izbirkom.w/region/izbirkom).

Unlike a national referendum, which is held on the territory of the whole Russian Federation and a republican referendum, which is organized on the territory of the whole republic, local referendums are held on the territory of part of the republic (or other entity of the Russian Federation). As a rule, it is the area of a village, communes, settlements, towns or regions included in the territory of a republic.

It should also be stressed that among twenty two republics, included in this analysis, local referendums were held in eleven republics: Buryatia, Dagestan, Ingushetia Republic, Komi, Mordovia, Tatarstan, Tuva, Udmurtia, Khakassia, Chechnya, and Chuvasia. The Republic of Tatarstan is particularly worth noting: 2302 local referendums were held there (65% of all referendums). This fact shows a great political culture of the citizens of the Republic of Tatarstan as compared with other republics; however, it should be observed that all referendums were held only in 2016 and 2017. Furthermore, it should be stressed that all local referendums concerned the self-taxation of inhabitants. The funds from this self-taxation are to be used for the improvement of local infrastructure, waste collection and disposal, maintenance of cemeteries, preventing fires etc. In case of other local referendums, their scope comprised the change of the status of particular entities, merger of territorial units or changes of borders of territorial units.

#### **Conclusion**

In Russian political system a referendum is perceived as an instrument of direct democracy. It was introduced into the Constitution of the Russian Federation of 1993 and on this basis the federal constitutional laws On Referendum of 1995 and of 2004 were subsequently adopted. The federal law of 12 June 2002 On Basic Guarantees of Electoral Rights and the Right of Citizens of Russian Federation to Participate in a Referendum is a supplement to the Russian legal system. Moreover, the institution of a referendum was, *per analogiam,* entered in the Constitutions and Statutes of particular Republics and entities that constitute the Russian Federation. It should be therefore said that a referendum constitutes a lasting element of the Russian legal system. The crucial problem is the practical dimension of a referendum. At the national level, two referendums were held after 1991. On 25 April 1993 the Russians answered four questions on current social-political situation, whereas on 12 December 1993 they adopted the new Constitution of the Russian Federation. Furthermore, before the formation of the Russian Federation, on 17 March 1991 a referendum was held dealing with the future of the state and embracing the Soviet Union, and concerning the establishment of the office of the Republic's President in the RSFSR. After

1993, a national referendum was not organized therefore it should be said that the institution of a referendum was treated in instrumental way by particular power centers in their lasting political rivalry. The referendum became even a hostage of the political will of the Russian Federation President. Moreover, it should be added that the law On referendum of 2004 is an important restriction which prevents the use of the institution of a referendum by the citizens, and the referendum itself has not contributed to the formation and development of civil society at the level of the whole Federation. The key question in this context is the answer whether in the multinational, multiethnic, and domestically incoherent Russian Federation there is a chance to build social activity in the all-national dimension. The above doubts are legitimate if the local level of practical dimension is taken into consideration. After 2003, local referendums were organized in 63 percent of the subjects of the Russian Federations, the Republic of Tatarstan is the leader (2302 referendums on self-taxation were held in 2016 and 2017). Consequently, it should be said that such activity shows a great responsibility of the citizens for their local communities. Depending on the region of the Russian Federation, referendums are applied and may confirm the development of a local community and social integration around its problems but at the same time there is no identification with the state at the federal level.

An important limitation to the development of direct democracy is the history and political tradition of the Russian state, which comes down to the complete subordination of the citizens to state authorities. Over centuries, in the Tsarist and then in Bolshevik and Soviet Russia there were no conditions for the development of citizens' activity in the social and political dimension whereas it is a necessary element for the permanent presence of direct democracy in a political system.

To sum up, it should said in view of the foregoing that firstly, direct democracy (referendums) are present in the Russian Federation both in the formal-legal and practical dimension. However, the formal dimension is a barrier to the development of the practical dimension Moreover, in the practical dimension, a referendum was treated instrumentally at the federal level whereas, depending on a particular entity of the Russian Federation, it develops (Republic of Tatarstan), its application is confirmed, (e.g. Republic of Tuva, Republic of Dagestan), or it is not organized (e.g. Republic of Adygea, Altai Republic) at the local level. Therefore, secondly, it should be assessed that the application of the instruments of direct democracy only in selected cases at the local level is a determinant of citizens' awareness while at the federal level a referendum serves to implement and legitimize the political actions of the President's power center. In this context it should be remembered that the Russian Federation is not a democratic state in which citizens' rights are respected; this means that a referendum may serve to manipulate the attitudes among the citizens. And thirdly, the Russian

Federation is not a member of the European Union, which is why European integration is not a direct determinant of the position of direct democracy in the state.

### **References**

http://www.c2d.ch

http://constitution.garant.ru/region

http://vybory.izbirkom.w/region/izbirkom

#### Magdalena Musiał-Karg

### Direct Democracy in Serbia

### **Determinants**

The breakup of Yugoslavia in the early 1990s gave rise of many changes in the region. The events in the Balkans were treated as part of the sequence of events connected with the collapse of the Cold War order. At that time, few commentators of international life suspected that the independence Serbia and Montenegro would be a significant step leading to the breakup of Yugoslavia and that it would be accompanied by bloody hostilities. It was assumed that declarations of independence would be a spur to changes in the organization of the state rather than to its collapse (Podgórzańska 2010: 102).

Separatist tendencies of individual nations began to come to the fore more and more often, and the Balkan states started to feel the tremendous impact of diverse political, social, economic or cultural factors. Not without significance was also the intervention of Western European states in the region.

The Socialist Federal Republic of Yugoslavia comprised six republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. In 1991 three of Yugoslavia's six republics unilaterally declared independence after having held referendums: the Republic of Croatia and Slovenia, Republic of Macedonia, and the Republic of Bosnia and Herzegovina also proclaimed its sovereignty in 1992.

The first to put forward demands for self-determination were Slovenia and Croatia. After the two states proclaimed independence, Bosnia and Herzegovina followed suit (15 October 1992). In the case of declaration of independence by Macedonia the question was more complicated, *inter alia* on account of the conflict with Greece over the name of the republic, and over fear of possible future territorial claims. As a result, Macedonia gained independence in 1991 while in the international forum the state uses the name the Former Yugoslav Republic of Macedonia (Wojciechowski 2002: 203).

The Republic of Serbia condemned those decisions and, together with Montenegro, it proclaimed the establishment of the Federal Republic of Yugoslavia in 1992 (Musiał-Karg 2008: 191). Before they became autonomous states, Serbia and Montenegro shared the common fate. It should be added that originally they remained together in the structure of the Socialist Federal Republic of Yugoslavia and later they formed a two-entity union (Bujwid-Kurek 2008: 182).

As a result of transformation processes, only Serbia and Montenegro were left as the remainder of the dismembered Yugoslavia, and in April 1992 they formed a new state entity called the Federal Republic of Yugoslavia. Under the constitution, the bicameral union Parliament: Skupština was established for it. The president of the state was elected by the Parliament, which also designated the federal government. The parliamentary term would be four years (Wojnicki 2005: 12).

The functioning of the federation left much to be desired, which was the consequence of *inter alia* the occurrence of many differences between the two republics in many fields of the state's activity. With time, apart from the visible Serbian desire to dominate the Montenegrins, the competition intensified between two key politicians of the then ruling Democratic Party of Socialists – President Slobodan Milošević and Prime Minister Milo Đukanović. It needs to be pointed out that the emancipatory aspirations of the Serbs were noticeable in many actions of the government: the establishment of own customs service, opening of the borders, abolishment of visas, amnesty for persons who refused to serve in the army, registration of the Montenegrin Orthodox Church, which had previously been absorbed by the Serbian Orthodox Church (Hołowacz 2008: 66-67; Wojciechowski 2002: 203).

A significant determinant of the formation of the state was its striving to join the European Union structures. The general framework of the EU's cooperation with Serbia and Montenegro was determined as early as 1999 in the process of stabilization and association. It was then that the Union's strategy towards the Southern and Eastern European countries was defined. *The conditions for integration, apart from the aim of meeting the Copenhagen criteria, included, inter alia, full cooperation with the International Criminal Tribunal for Former Yugoslavia. The 1999 conflict in Kosovo prevented the EU from beginning negotiations on association with the then Yugoslavia. The European Union therefore created a special cooperation instrument: the Consultative Task Force (EU-Serbia relations…), which was subsequently replaced by the mechanism of Enhanced Permanent Dialogue (Uvalic 2010: 236)* (Kołakowska 2006: 1649-1650).

Further striving to declare independence reached its climax in 2002, when, after the talks conducted with the participation of European diplomats, the decision to change the structure of the state was made (Szpala 2011: 81- 83). This was preceded by victory in the presidential election on 26 September 2000 by Vojislav Koštunica – the candidate of the Democratic Opposition of Serbia (DOS), and, in consequence, by the removal of Slobodan Milošević from power. Next, on 23 December 2000, the democratic elections were held which were won by the Democratic Opposition of Serbia with 64.7% of votes, and thereby gaining a majority in the Parliament. These

events opened a new chapter in the history of the state (Stanisławski 2008: 33). The most important political goal of the new government headed by Zoran Djindjić was to carry out complex state reforms. Moreover, the adopted strategic priority objective was the country's accession to the European Union as fast as possible (Szpala 2011: 81-83).

Under the democratic leadership Serbia was expected to become the guarantor of the stability in the region. It was believed that - owing to its high administrative potential – the country would quickly cope with the challenges of the transformation process and adaptation to the political and economic conditions for membership (Szpala 2011: 81). This did not happen, however. After sixteen years of the transformation process and striving for greater integration with the European Union, Serbia failed to gain the status of a candidate state, while the prospect of membership seems to be far more distant than before.

Serbia and Montenegro were two last republics that remained in the federal union after the breakup of the former Yugoslavia under the agreement of 14 March 2002. The negotiated agreement, with the European Union's substantial support, on the normalization of relations between Serbia and Montenegro was signed by President Vojislav Koštunica of Yugoslavia and by President Milo Đukanović of Montenegro. Several weeks after the signing of the agreement – on 9 April 2002 – the Parliaments of both republics adopted a new formula of the functioning of the state. The document provided for the formation of a new state organism and the establishment by Serbia and Montenegro of a loose federation called "Serbia and Montenegro". The mediator in negotiations between the two republics was the High Representative for the EU's Common Foreign and Security Policy, Javier Solana. The creation of the new state of Serbia and Montenegro was the first independent success of the EU's diplomacy in the region of the post-Yugoslav countries (Kołakowska 2006: 1649-1650).

In accordance with the decisions made under the so-called Belgrade Agreement, the union had characteristic features of a confederation with certain elements of federation. It was resolved that Serbia and Montenegro would have common authorities: the unicameral parliament, the president who would also exercise the function of the chief or government, the federal government, and the joint Court of Serbia and Montenegro. The Agreement also safeguarded the smaller republic, Montenegro, from discrimination by Serbia. The administrative capital was established in Belgrade. The Agreement also stipulated that by the end of 2002 the Constitutional Charter of State Union (Constitutional Charter of the State Union of Serbia and Montenegro…) would be drafted and passed (Wojnicki 2005: 13; Stanisławski 2003: 32).

It should be also taken into account that the foregoing agreement was temporary, and, pursuant to its regulations, after three years Serbia and Montenegro would decide about the future of the established union. The new state had the common language (Serbian), religion, cultural heritage, and history. In the institutional sphere the state had the President, the Government consisting of five ministers, and the Union Parliament.

It should be noted that Serbia faced many challenges related not only to political, economic or social transformations resulting from democratization but also to the consequences of Slobodan Milošević's rule, who involved the country in many conflicts. Furthermore, what left its imprint were the manyyear-long economic embargo and the *blame of exclusive responsibility for the conflict, ethnic cleansing, and violations of human rights in the territory of the former Yugoslavia* (Stanisławski 2003: 32). All these translated into the accumulation of obstacles to Serbia's accession to the European Union. Apart from the question of reforms, these were, *inter alia*, *unstable statehood (the problem of Montenegro and Kosovo) and reluctance to account for the war past. The resolution of these problems was the more difficult because Serbia did not adopt a unanimous stance on European integration* (Szpala 2001: 81-82).

The existence of the federation was called into question on 21 May 2006, when in the referendum the inhabitants of Montenegro opted for the establishment of an independent state. On 3 June 2006, when Montenegro declared independence, the union broke up. Serbia's Government recognized Montenegro's independence and announced it would establish diplomatic relations.

#### **Formal-Legal Dimension**

After Montenegro declared its independence, the Serbs adopted a new constitution. The previous Constitution was passed in 1992 when S. Milošević became president. When he was deposed on 5 October 2000, one of the election promises was the adoption of the new fundamental law (constitution).

The most important legal act that regulates the political system of the Republic of Serbia is the Constitution of 30 September 2006 (Ustav Republike Srbije, "Službeni glasnik RS" br. 98/2006). The Serbian Parliament adopted the draft constitution unanimously after the referendum held on 28 and 29 October 2006<sup>1</sup> (Serbia back draft constitution, 2006). The

 <sup>1</sup> The turnout in a referendum was 53.66%. The constitution was accepted by 51,46% of the voters (50% was required). The Serbs supported the constitution in a referendum. The ethnic Albanians ignored the voting.

Fundamental Law was the first Constitution of sovereign Serbia since the 1903 Constitution of the Kingdom of Serbia (Popović-Obradović 2013: 176).

The draft of the new Constitution of 2006 was a compromise between major political parties. From the standpoint of historical and ethnic determinants, it was significant that the preamble contained the provision that Kosovo is an integral part of the territory of Serbia with the status of an autonomy2 .

The Constitution came into force on 10 November 2006. Article 1 contains the fundamental principles of the state's political system. According to the provisions: *Republic of Serbia is a state of Serbian people and all citizens who live in it, based on the rule of law and social justice, principles of civil democracy, human and minority rights and freedoms, and commitment to European principles and values* (Constitution of the Republic of Serbia, art. 1). The document states that the rule of law shall be exercised through free and direct elections, constitutional guarantees of human and minority rights, separation of power, independent judiciary and observance of Constitution and Law by the authorities. (Constitution of the Republic of Serbia, art. 3; Wojnicki 2011: 119-120). The Constitution confirms the principle of the sovereignty of the people. Article 2 states that sovereignty is in the hands of the citizens (people) who exercise it directly or indirectly.

The Constitution of the Republic of Serbia also contains references to the use of forms of direct democracy. The first provision is contained in the abovementioned Article 2: *Sovereignty is vested in citizens who exercise it through referendums, people's initiative and freely elected representatives*. Another article in the Serbian Constitution is Article 105 concerning methods of decision-making by the National Assembly. Pursuant to the provision, the Parliament decides by majority vote of all deputies on laws which regulate *inter alia* the referendum and people's initiative.

The right of legislative initiative – according to Article 107 - is vested in deputies, the Government, assemblies of autonomous provinces and in the voters (if an initiative is endorsed by at least 30,000 citizens), and, within their competence, in the Bank of Serbia and the Commissioner for Citizens' Rights (referred to in the Constitution as Civil Defender). Moreover, a national referendum may be called at the request of the majority of all deputies or at least 100,000 citizens. *The subject of the referendum may not include duties deriving from international contracts, laws pertaining to*

 <sup>2</sup> …*the Province of Kosovo and Metohija is an integral part of the territory of Serbia, that it has the status of a substantial autonomy within the sovereign state of Serbia and that from such status of the Province of Kosovo and Metohija follow constitutional obligations of all state bodies to uphold and protect the state interests of Serbia in Kosovo and Metohija in all internal and foreign political relations…*, *Constitution of the Republic of Serbia*, http://www.srbija.gov.rs/cinjenice\_o\_srbiji/ustav.php?change\_lang=en, 09.10.2016.

*human and minority rights and freedoms, fiscal and other financial laws, the budget and financial statement, introduction of the state of emergency and amnesty, as well as issues pertaining to election competences of the National Assembly* (Article 108).

At the national level, the referendum can be held on amending the Constitution. The procedure for amending the Constitution is regulated in Chapter IX, Article 203: *A proposal to amend the Constitution may be submitted by at least one third of the total number of deputies, the President of the Republic, the Government and at least 150,000 voters*. In cases when the proposed amendments to the Constitution pertain *inter alia* to the preamble of the Constitution, the rule of law, or human and minority rights and freedoms, the National Assembly is obliged to put forward the act on amending the Constitution in a national referendum. The referendum has to be held not later than sixty days from the date of adopting the bill on amending the Constitution. The amendment will be adopted if the majority of voters who participated in the referendum vote in favour of the proposed amendment.

The Constitution of the Republic of Serbia also provides for the use of direct democracy at the local level – in autonomous provinces. Pursuant to Article 182, *new autonomous provinces may be established, and already established ones may be revoked or merged following the proceedings envisaged for amending the Constitution. The proposal to establish new, or revoke or merge the existing autonomous provinces shall be established by citizens in a referendum, in accordance with the Law*. It should be also noted that the territories of autonomous provinces *may not be altered without the consent of its citizens given in a referendum*. A referendum may be also held in Serbia's local selfgovernment units, which are municipalities (communes), towns and Belgrade – the capital of Serbia3 . Under the Constitution, the subject of the referendum can be the issues pertaining to the establishment, revocation or alteration of the territory of a local self-government unit(Article 188).

Detailed questions concerning the organization and holding of a referendum and people's initiative were defined in the Law on Referendum and People's Initiative.

### **Practical Dimension**

Serbia does not have ample experience in using the institutions of direct democracy. One constitutional referendum was held which was, in a way a consequence of the secession of Montenegro in 2006. The practice of utilizing

 <sup>3</sup> Local self-government units shall be municipalities, towns and the City of Belgrade.

other forms of direct democracy has not become established – either at the national or local level.

When analyzing the practice of using referendums in the Republic of Serbia, it should be borne in mind that the events connected with the declaration of independence by the Montenegrins had significantly impacted the further fate of Serbia. After the independence referendum of 21 May 2006<sup>4</sup> and the proclamation of independence by Montenegro, the Serbian Parliament put the Constitution meant for the already entirely independent Serbia to the citizens' vote<sup>5</sup> . The referendum held on 28 and 29 October 2006 adopted the new Constitution.

Table *1*. The national referendum of 28-29 October 2006

Source: Republic Election Commission; Centre for Research on Direct Democracy (c2d) http://www.c2d.ch/ (10 September 2016).

The number of registered voters who had the right to participate in the twoday referendum was somewhat over 6.6 million. For the Constitution to be adopted, it had to be endorsed by over half of the eligible voters. During the referendum campaign, the critics of the Government urged the citizens to boycott the voting because under the new Constitution Kosovo<sup>6</sup> was recognized in it as a part of Serbia – it was feared that before the conclusion of talks on the future status of Kosovo this constitutional provision might be detrimental to Belgrade's interests (Referendum konstytucyjne w Serbii*…*).

As regards the course of the referendum, it should be noted that according to the announcement of the Election Commission, on the first day of the referendum the turnout was 17.81%<sup>7</sup> (Referendum konstytucyjne w Serbii*…*). Eventually, the referendum was attended by over 3.6 million of eligible vot-

 <sup>4</sup> 55.5% of voters voted for the independence at the turnout with 86.3% of votes. In this way, the number of votes for Secession has met the increased requirements imposed by the European Union necessary to recognize the full independence of the state. On 3 June 2006 the parliament of the country proclaimed independence. <sup>5</sup>

It was adopted at its first special session in 2006 of the National Assembly of the Republic of Serbia on 30 September 2006. Decision was made under Article 73 Item 8 of the Constitution of the Republic of Serbia and Article 10 para.1 of the Law on Referendum and People's Initiative ('Official Gazette of RS', no. 48/94 and 11/98); First Special Sitting of the National Assembly of the Republic of Serbia in 2006*,*  http://www.parlament.gov.rs/First\_Special\_Sitting\_of\_the\_National\_Assembly\_of\_the\_Re public\_of\_Serbia\_in\_2006.6387.537.html (11 October 2016). <sup>6</sup>

Since mid-1999, Kosovo has been under UN administration. The talks in Vienna on the future of the province in times of referendum were in the deadlock. 7

The results did not take into account the results from Kosovo - the two million province with the majority (90%) of the Albanian population, who seeks independence from Serbia.

ers, the turnout at the referendum being 53.66% (Hawton 2016). The official results were announced on 2 November 2006, and two days later the new Constitution came into force.

Despite some doubts, the European Union and Organization for Security and Cooperation in Europe approved the proposed changes. Cristina Gallach, the then spokesperson for the High Representative for the EU's Common Foreign and Security Policy Javier Solana, said the European Union positively assessed the fact that Serbia introduced changes in the Constitution in force under the Slobodan Milošević regime (Gallach: Eu Positively Assesses Adoption…).

To sum up, it should be stated that despite very small experience in the use of direct democracy institutions in the Republic of Serbia both at the national and local level, the vote for the adoption on the new Constitution may be regarded as an important step in deepening of changes that are the consequence of the breakup of the former Yugoslavia.

#### **Conclusion**

Referendum is one of the tools of direct democracy by means of which citizens can make decisions on the matters of utmost significance for the state. In the republics of the former Yugoslavia, referendums played a crucial role: firstly, in the independence aspirations of successive nations as well as in the democratization and reform process.

The political and historical circumstances in contemporary Serbia did not compel the state to hold an independence referendum. However, the vote held in May 2006 in Montenegro impacted the political situation in the already independent Serbia, which, guided by pro-Western aspirations, decided to pass a new Constitution dissociated from the previous government, the Constitution which was endorsed by the Serb voters in the obligatory constitutional referendum as early as in 2006. The formula of obligatory decisionmaking by the sovereign (the people) on the constitutional questions should be regarded as the realization of the constitutional principle of the people's sovereignty and as the expression of handing over the matter of the most important national legal acts to the citizens to decide.

Constitutional referendums in Central and Eastern Europe, also referred to as in-depth (reform) referendums<sup>8</sup> , are the second category of referendums

 <sup>8</sup> The definition of deepening referenda was to emphasize the fact that subsequent (after independence) referendums in Central and Eastern Europe or in the republics of the former Yugoslavia aimed to consolidate and deepen the changes that began in the late 1980s and early 1990s. The referenda include referenda on the adoption of new state constitutions, referenda on political system - for example on the electoral system for the parliament or the

held after 1990 (Musiał-Karg 2010). These plebiscites after referendums on independence made it possible to consolidate pro-democratic changes and allowed the states concerned to pursue their goal of EU membership. The 2006 referendum in Serbia is an example of such voting, and the comparatively high turnout appeared to reflect the pro-democratic aspirations of the citizens of this state.

The analysis of Serbia's experiences allows the conclusion that the practice of direct decision-making in this country, both at the national and local level, is nevertheless very limited, and it does not seem that any significant changes will soon occur in this field. The not yet completely established democracy and the lack of fully developed civil society largely determine the practice of the use of direct democracy institutions in Serbia.

#### **References**

http://www.srbija.gov.rs/cinjenice\_o\_srbiji/ustav.php?change\_lang=en

presidential election, or the vote on reforms - eg privatization or insurance schemes. Most of the deepening votings took place in the 1990s. The constitutional referendum in Serbia – that was held in October 2006, five months after the independence vote in Montenegro could be added to this category.

https://www.wprost.pl/96449/Referendum-konstytucyjne-w-Serbii

### Elżbieta Kużelewska

### Direct Democracy in Slovakia

#### **Determinants**

From 1918 to December 1992 Slovakia and Czechia formed Czechoslovakia, which had the structure of a federal state from 1969 on. The political system of Czechoslovakia defined in the 1920 Constitution drew on representative democracy in the form of optional referendum on ordinary legislation but to a limited extent. The right to participate in a referendum was vested in persons with the right to vote for the Chamber of Deputies. Pursuant to Article 48, calling of a referendum was the exclusive competence of the government which could hold a referendum on a bill that, submitted as the government's draft law, was rejected by the Parliament. A referendum could not be called on draft laws amending the Constitution. The Constitution explicitly stated that the government's resolution to directly invoke the people's will had to be passed by a unanimous vote. The adopted solution, as Rytel-Warzocha rightly observes, meant that the possibility of the people making direct decisions was substantially reduced and that the people was deprived of an opportunity to directly express their opinions on the matters pertaining to the political system (Rytel-Warzocha 2011: 92-93).

In 1990 Czecho-Slovakia was created consisting of two republics: of the Czechs and the Slovaks. In July 1991 the Parliament of Czecho-Slovakia adopted a constitutional law on the referendum. The opinion poll of November 1991 showed that as many as 74% of respondents believed it was necessary to hold a referendum on the division of the country. Contrary to the attitude of the public opinion, the newly passed referendum law was not applied, and the decision about the "Velvet Divorce" (Simon 1993: 2-3) was taken by the parliamentary deputies without reference to the people's will on this matter.

After the breakup of Czechoslovakia, Slovakia became a sovereign state on 1 January 1993, taking on the structure of a unitary state. Slovakia's political system takes into account the institution of direct democracy - referendum and referendum initiative. Slovakia ranks among the group of Central European states with an ample referendum experience. Unlike Czechia, Slovak politicians often appealed to the people's will through referendum.

#### **Formal-Legal Dimension**

The legal bases of referendum are contained in the Constitution of the Slovak Republic of 1 September 1992, in Chapter II (Articles 93-100) (Constitution 1992) and the Election Law Act (Zakon 180/2014).

The Slovak Constitution, unlike that of the Czech Republic, amply regulates the institution of national referendum. Article 2 par. 1 of the Constitution specifies that *State power is derived from citizens, who execute it through their elected representatives or directly*. The Article therefore indicates that both forms of democracy (representative and direct) are admissible. This order does not appear to be accidental and suggests the primacy of representative democracy over direct democracy as a form of execution of power by the people. Article 7 and Article 93 par. 1 *de facto* provide for a mandatory referendum on entering into (withdrawing from) an alliance with other states. The strengthening of the direct form of exercise of power is contained in Article. 30 par. 1, which provides for citizens' right to participate in the administration of public affairs by means of a national or local referendum which is one of the fundamental political rights vested in Slovak citizens.

Article 93 specifies the subject of vote in a referendum. A referendum *confirms a constitutional law on entering into an alliance with other states or on withdrawing from that alliance*. A Referendum can be used to decide also on other important issues of public interest. Basic rights and liberties, taxes, levies, and the state budget cannot be the subject of a referendum. Article 94 specifies who has the right to participate in the referendum (every citizen of the Slovak Republic who has the right to vote in elections of the National Council of the Slovak Republic).

Article 95 specifies the authorities entitled to call a referendum. Pursuant to this Article, *the referendum is called by the President of the Slovak Republic if requested by a petition signed by a minimum of 350,000 citizens or on the basis of a resolution of the National Council of the Slovak Republic, within 30 days after the receipt of the citizens' petition or the resolution of the National Council of the Slovak Republic*. Par 2, Article 2 states that the President may, before calling a referendum, request that the Constitutional Court of the Slovak Republic decide whether the subject of the referendum that s/he is to call is constitutional. If the President submits this motion to the Constitutional Court, the time limit referred to in par. 1 (i.e. 30 days) does not run from the date of the submission of the motion to the coming into force of the Constitutional Court's decision). In the Slovak law system, this Article reflects the principle of judicial supervision over the constitutionality and legality of the direct exercise of power by the people.

Under Article 96, *the motion to pass a resolution of the National Council of the Slovak Republic on calling a referendum can be tabled by deputies of*  *the National Council of the Slovak Republic or by the Government of the Slovak Republic. The referendum will be held within 90 days after it is called by the President*. Article 97 specifies the time limits of holding referendums. A referendum must not be held within 90 days prior to elections to the National Council, but it may be held on the day of elections to the National Council. Article 98 defines the validity of the referendum, and, pursuant to the provision, the results of the referendum are valid if more than 50% of eligible voters participated in it and if the decision was endorsed by more than 50% of the participants in the referendum. It should be noted that it is a universal although high threshold.

Article 99 contains a convenient loophole for the ruling authorities to circumvent decisions adverse to them, taken in the referendum. The National Council can amend or annul the result of a referendum by means of a constitutional law three years after the result of the referendum came into effect, while a referendum on the same issue can be repeated not earlier than three years after it became valid. The adopted solution calls into question the significance of decisions taken by means of a referendum (Láštic 2007: 170). If the Constitution admits of the possibility that the Parliament will amend or annul the decision taken by the people in a referendum after three years, this may mean that the institution of direct democracy does not enjoy full trust and plays a marginal role in the Slovak political system. A different position on this question can also be encountered. It is argued in the doctrine that Article 99 ensures the stability of the decision taken in a referendum since the National Council is prohibited from making decisions contrary to the results of the referendum earlier than three years after it became valid (Rytel-Warzocha 2011: 119). It is therefore a controversial question whether the prescribed three-year period prohibiting the amendment or annulment of the decision directly expressed by the people strengthens the expressed will of the people or whether it (the period) marginalizes the will because after three years the National Council is entirely free to make and alter the law without regard for the results of the referendum of three years ago.

Under the Constitution of the Slovak Republic there are two kinds of referendums: mandatory and optional. The former applies only to entering into (or withdrawing from) an alliance with other states. In the other case the referendum is optional and there is no obligation to hold it. With regard to the subject of a referendum, an arbitration referendum should be distinguished, regulated by Article 101. It appeared in the Slovak legal system as a consequence of introducing the principle of direct election of the head of state and it refers to the possibility of recalling the President from office. If the National Council passes a resolution by a two-thirds majority on the referendum to recall the President, it has to be called within the period of thirty days. The voting is held within sixty days of the day of calling the referendum. The arbitration referendum is binding if the recalling of the President is endorsed

by more than half of all the eligible voters regardless of the size of the turnout. It is necessary to agree with Rytel-Warzocha's stance that the arbitration referendum in Slovakia should not be identified with the classical *recall* (Rytel-Warzocha 2011: 117) because, firstly, the exclusive referendum initiative is vested in the National Council (citizens do not have this right). Secondly, if the result of the vote is in his/her favour, the President is obliged to issue a decision about shortening the term of the Parliament, which means that it is necessary to call ne parliamentary elections within seven days.

Chapter VIII of the Elections Act of 2014 contains provisions concerning referendums (§196-215). A Slovak citizen who is eligible to vote in the election of the National Council of the Slovak Republic has the right to participate in a referendum. Voting can be in person or by mail. A referendum is called by the President at the request of the National Council or the citizens (§ 202). The president does not have the right to initiate referendums. A proposal (proposals) submitted in a referendum has to be formulated in such a way that the voter will be able to unequivocally answer "yes" or "no". The President may refuse to call a referendum if s/he deems the formulated questions unlawful or failing to meet the formal requirements. Section 204 specifies in detail the form of a ballot paper. The questions on the ballot paper should be numbered and there should be two variant answers: "yes" or "no". The Ministry of Internal Affairs is responsible for the preparation of the adequate number of ballot papers. A voter may cast a vote in the territory of the Slovak Republic in the constituency in which s/he is registered or in any other constituency on the basis of the ballot paper. The law also permits voting outside the country. Voting by mail is admissible for persons without permanent residence in Slovakia who are listed in a special register of voters or for persons with permanent residence in Slovakia but who are abroad at the time of voting (then they send the ballot paper to the polling station in the place of their permanent residence).

The Constitution of the Slovak Republic also provides for a local referendum, and stipulates in Art 67 that territorial self-administration is enacted at meetings of municipality (=commune) residents, by means of a local referendum, or through community bodies. The basic regulations on local referendums are contained in the law on the municipality (*obec*) system (Zakon 1992). Voting is announced by community representatives on matters such as the merger, division or dissolution of a municipality; introduction and abolishment of public charges, and on the proposal to introduce and abolish a local tax or local charge, which should be decided on by a local referendum pursuant to the resolution of the community representatives; a petition by at least 20% of the municipality citizens eligible to vote on the division of a community; a petition concerning the division of a municipality after it is submitted by 20% of registered voters residing in this part of the municipality who motion for the secession from the community (municipality). The result

of voting has the binding force of a resolution by the municipality representatives. The vote is valid on condition that more than half of the municipality inhabitants eligible to vote participate in it and the motion is supported by an absolute majority. After the amendment to the Constitution in 2001, Article 64 contains a reference to the second tier of the territorial level: the region and the accompanying institution of regional referendum (Láštic 2011: 238).

Slovakia's legal system also recognizes another institution of direct democracy, which is the public meeting of municipality citizens (§11b of the Elections Act). To discuss matters of significance for a municipality, the municipality representatives/representative body may convene a public meeting of all the municipality residents or of some of them (Barański 1998: 11- 112). The main subjects of local referendums are matters concerning e.g. the recall of local authorities or the imposition of local charges (Gebethner 2001: 244). The recall procedure may be initiated by a resolution of the local meeting or at the request of the municipality residents supported by 30% of the eligible voters. The referendum on the recall of local authorities is valid if the turnout was 50%, and the motion was supported by at least half of the voters participating in the referendum.

Despite the fact that there are forms of direct democracy at the local level, citizens' participation is low, particularly in large municipalities. The socialist system of municipalities created for constituencies was not replaced by a more functional system of cooperation between the elected representatives of local authorities and the residents. Systematic meetings of representatives of the local authorities with the voters are not obligatory, they are organized rather ad hoc, particularly at the time of local elections or when a serious problem arises (Nemec/Bercik/Kuklis: 314).

#### **Practical Dimension**

Between 1994 and 2016 national referenda were held eight times in Slovakia. The voters were asked to express their position on 18 problems (questions) put to the vote in referendums.

Source: www.portal.statisctics.sk (8 November 2016) and www.c2d.ch (8 November 2016).

The first referendum (1994) concerned the disclosure by legislation of the sources of funds paid out by investors who took part in the Slovak privatisation. The referendum was essentially not necessary because the law solving the question of the demands for transparency of the sources of funds used in the privatisation process was passed prior to the announcement of the vote results.

Source: www.portal.statisctics.sk (8 November 2016) and www.c2d.ch (8 November 2016).

The second referendum (1997) was the outcome of the evident conflict between the President and the government coalition. The President called a referendum on the direct election of the head of state. The subject of the referendum was put forward by the parliamentary opposition who justified the proposed changes by their fears that a stalemate might arise when the conflict-ridden and politically fragmented National Council would not be able to elect the president. Having failed to gain the required parliamentary majority, the opposition began to collect signatures in support of the citizens' proposal to hold a referendum on the amendment to the Constitution concerning the manner of election of the head of state (Horwáth, 2016). In contrast, Prime Minister Mečiar's government pushed through the Parliament the calling of a referendum on Slovakia's membership of NATO (Hacker 2010: 167). The voters were expected to answer three questions prepared by the government: on NATO membership, deployment of nuclear weapons, and installation of missile bases in the territory of Slovakia. The referendum campaign was dominated by the issue of NATO membership. The unclear activity of the Ministry of Internal Affairs, manifested *inter alia* in printing only three questions on the ballot papers (with the omission of the question about the direct election of president) was confirmed by the decision of the Constitutional Court, which found the Ministry of Internal Affairs guilty of breach of constitutional civil rights (Deegan-Krause, 2006: 53) and ordered the cessation of referendum voting. Furthermore, in some polling stations the registered voters were not given any ballot papers because these were not recognized as official, having been printed illegally, without the required permission of the Central Referendum Commission and were not stamped with the appropriate seal (Rytel-Warzocha 2011: 164). It should be stressed at this point that rather than show the support for NATO membership, the referendum laid bare the fragmentation of the Slovak political scene. The opposition parties announced they would not take part in the vote (Schwegler, 2008: 119). It should be emphasized that the NATO referendum was groundless for several reasons. Firstly, Slovakia was not a member of the so-called first group of Central European states – candidates for NATO membership (Żarna 2010: 214). Secondly, Slovakia was not officially invited to join the Alliance at that time. And thirdly, irrelevant questions were asked in one package. The deployment of nuclear weapons and installation of missile bases could not obviously count on huge support of the voters (Bebler 1999: 165).

*Table 3*. The national referendum of 26 September 1998

Source: www.portal.statisctics.sk (8 November 2016) and www.c2d.ch (8 November 2016).

A year after the scandalous circumstances under which the referendum of 1997 was held, the Slovaks again did (not) participate in the referendum (combined with parliamentary elections), whose subject was a ban on privatisations of strategically important state enterprises (Kopeček/Belko, 2003: 196). The initiative of holding a national referendum was launched by Mečiar's party, which proposed to prohibit the privatisation of six state enterprises in the energy and gas sector (Podolak 2014: 352).

It should be noted here that the controversial 1997 referendum had its continuation in 1998, but at the local level. In January 1998 the Constitutional Court decided that the initiative concerning the referendum on direct presidential elections was still valid. The Chairman of the Referendum Commission appealed to President Kováč of Slovakia to again call a referendum on the same issue. Slovakia's President called the referendum on 19 April 1998, the subject of the referendum being four questions. In March 1998 the decision was withdrawn after Prime Minister Mečiar took over the presidential competence when the Parliament had failed to elect the new president. As a response to the recall of the referendum by Prime Minister Mečiar, the local assembly in Štúrovo decided to call a local referendum on 19 April 1998 and put the same four questions to the vote, including the one about the direct elections of the country's president. This decision caused political confusion, with the state authorities attempting to prevent the referendum. The regional court ordered the town authorities to stop the referendum but its decision was reversed by a higher court (Láštic 2011: 238). Several days after the referendum, in which the turnout was 50%, the government proposed an amendment

to the law on municipalities, and, using an expedited legislative procedure, presented a new version of provisions concerning the admissible subject of the vote in local referendums. The amendment to the law adopted by the Parliament explicitly prohibited the municipalities from putting to the vote the matters other than those concerning the local community and their local range in a local referendum.

*Table 4*. The national referendum of 11 November 2000

the National Council

Source: www.portal.statisctics.sk (8 November 2016) and www.c2d.ch (8 November 2016).

The reasons for calling a referendum in 2000 to shorten the term of office of the National Council should be sought in the political dispute between the parliamentary opposition and Prime Minister Dzurinda's government accused of growing unemployment and inflation. Interestingly enough, 95% of the referendum participants (with a 20% turnout) opted for shortening the Parliament's term of office despite the fact that the government still had a threefifth parliamentary majority (Henderson 2003: 6). The same subject of the vote (i.e. shortening of the National Council's term of office and earlier elections) was also the subject of the 2004 referendum, which was held together with the first round of the presidential elections. The referendum was initiated by the opposition parties (mainly the Smer party headed by Robert Fico). Opinion polls conducted just before the referendum indicated the success of the Smer party in the situation of earlier parliamentary elections being called (Podolak 2014: 337).

*Table 5*. The national referendum of 17 May 2003

Source: www.portal.statisctics.sk (8 November 2016) and www.c2d.ch (8 November 2016).

The people's referendum on Slovakia's membership of the EU was attended by 52% of eligible voters, out of which over 90% were in favour of the country's accession to the EU. For the first time the subject of the vote was not identified with the support of political parties but was associated with the country's future and its position in the European arena. For referendum purposes, the document "Information Strategy of the Slovak Republic Government" was compiled which explained the functioning of EU and integration process to the society, and raised the awareness and knowledge on the EU (Podolak 2014: 263). The majority of Slovak political parties opted for the accession to the EU, identifying Slovakia's membership of a united Europe with guarantees of freedom, the integrity and inviolability of frontiers, and security and economic growth. European integration was opposed by the national parties: the Slovak National Party, the Hungarian Party of Justice and Life, and Czech republicans.

The only successful referendum in Slovakia was the referendum on the country's accession to the EU. Over 90% of voters opted for the accession, the turnout being 52%. Compared with the previous referendum experiences, the high turnout probably stemmed from the fact that it was the first time that the subject of the vote did not set the parties against one another but led to a broad consensus between them. Moreover, the Slovaks feared Mečiar's nationalist policy: a counterbalance to it was the accession to the EU, which enjoyed the unquestionable support of the Slovaks.

Source: www.portal.statisctics.sk (8 November 2016) and www.c2d.ch (8 November 2016).

During the presidential elections president Schuster organized a referendum on shorten the parliamentary term-of-office in order to conduct early parliamentary elections in 2004. Political disputes resulted again in low turnout and invalidity of referendum.

*Table 7*. The national referendum of 18 September 2010

Source: www.portal.statisctics.sk (8 November 2016) and www.c2d.ch (8 November 2016).

In 2010 the Slovaks voted on several questions, *inter alia* concerning the limiting of parliamentary immunity and the reduction of the number of seats in the Parliament (Krzywoszyński 2014: 60) What the three referendums (2000, 2004 and 2010) have in common is the unconstitutional character of the questions, and legal doubts as to the possibility of changing the Constitution through a referendum (because this is how the consequences of the positive result of the vote would have to be understood). The motion to examine the constitutionality of the referendum questions was submitted to the Constitutional Court by a group of parliamentarians. The Court refused to examine it on procedural grounds (Kopeček/Belko 2003: 198).

The electorate perfectly interpreted the intention of the referendum organizers, who tried to use this tool to either discredit political opponents or gain support. The subject of the referendum was proposed by the ruling parties and the President. The referendum was treated as a convenient tool for the removal of opposition forces from power and influence .It was an (unsuccessful – E. K.) instrument of struggle for influence in the society (Zieliński 2003: 57). Referendum was often used by the political forces that lost support in the parliamentary elections and, by launching the proposed initiatives, intended to regain their position and confidence of their supporters.

*Table 8*. The national referendum of 7 February 2015

Source: www.portal.statisctics.sk (8 November 2016) and www.c2d.ch (8 November 2016).

Particularly worth noting is the last referendum of 2015 because it pertained to controversial social issues. In the referendum of February 2015 the Slovaks answered three questions. The first was about the introduction of the constitutional ban on marriages between same-sex persons, by confirming that the term "marriage" is reserved exclusively for a union between a man and a woman, and cannot apply to any other form of relationship. The question was evidently unconstitutional and that was the stance adopted by the Constitutional Court (Krošlák 2015: 152-153). The second question concerned the ban on adoption of children by same-sex couples or groups. The last question was associated with the possibility that children could refuse to attend classes during which sexual behaviours or problems of euthanasia are discussed if the parents or children do not agree with the content of instruction. The initiative to call a referendum on controversial moral questions was launched by a Catholic community organization (and not by political parties as in the earlier cases) called Alliance for Family (Aliancia za rodinu, AZR).

All the three questions were directly linked with a specific worldview. With their liberal approach to the worldview questions, the Slovaks boycotted the referendum hence the turnout was low and the referendum was invalid. It should be emphasized that from the legal standpoint the 2015 referendum was unnecessary. Prior to the referendum, the Parliament inserted the definition of traditional marriage (a union between a man and a woman) into the Constitution (Art. 41). The amendment of 2014 excludes the possibility of recognizing the relationship between people of the same sex. This means that the Slovak law does not permit either same-sex marriages or registered partnerships (Kużelewska 2015: 182). It should be also added that the legal solutions pertaining to the definition of marriage in Slovakia's Constitution contradict Article 8 of the European Convention of Human Rights (Ruling of the European Court of Human Rights 2010). The referendum was referred to as *antihomosexual*, *in defence of traditional family*, or *selfish*. The initiators emphasized concern for the protection of traditional family, the interests of children growing up in the family with father and mother, and for stopping inappropriate sexual education at school. The main goal of the AZR was to change the attitude of citizens towards family values, which was the purpose of the referendum. They invoked the successful referendum in Croatia in 2013: its subject was the constitutional definition of marriage (Pavasović/Trošt/Slootmaeckers 2015: 162).

When analyzing the data in the tables above, it should be noted that in all cases (except the 2003 referendum) the referendum was invalid because the 50% turnout threshold was not reached.

Despite the high frequency of holding referendums, the turnout in the other cases was below the constitutional threshold of 50%. Very often, barely one fifth of the eligible voters participated in the referendum. The reasons for the low turnout in referendums are sought *inter alia* in the fact that voters are tired of political disputes between political parties (Kużelewska 2014: 106).

It is difficult to unequivocally assess the experiences of local democracy because the municipalities (communities) are not obliged to send reports to the Statistical Office to present data on the local referendums held. We can guess the number of the local referendums held, based *inter alia* on the fact that the number of municipalities rose from 2669 in 1990 to 2891 in 2006. The new municipalities were created as a result of division of municipalities through the use of local referendums. This means that at least 200 local referendums on the division of municipalities were held.

#### **Conclusion**

The Slovak legal system is consistent with the tenets of direct democracy. Direct democracy functions in Slovakia both in the formal-legal and practical dimensions, including at the local level although there are problems with obtaining detailed data. Direct democracy is observable above all at the national level. It should be pointed out that the decisions arrived at in referendums become legally binding at the moment of promulgation, with the binding force of a law, which means the obligation to execute the will of the voters by the state agencies. The adopted legal solutions are actually a guarantee of the efficacy of referendum results. However, in view of the fact that the voter turnout in referendums is very low, and consequently, the condition for referendum validity is not met, this institution is becoming a caricature of the

form of direct democracy. Its perversions are aggravated by politicians who use it a tool serving to discredit the opposing political forces. It should be stressed at this point that the Slovaks are deprived of the right to influence the legislative process through citizens' legislative initiatives. Citizens do not have any powers to call a referendum - they only have the right to participate in the referendum already called. The EU accession process "forced" the holding of the referendum on EU membership after prior introduction of appropriate amendments to the Constitution; therefore, it can be concluded that this process influenced the development of direct democracy both in the formal-legal and practical dimension.

In Slovakia, the referendum did not fulfil the educational function meant to increase the level of citizens' political awareness. It was not conducive to building a consensus, nor did it solve political conflicts (but even reinforced them). It did not ease tense relations between political parties and their programmes. The referendum contributed to distorting the idea of direct democracy and discouraged voters form expressing their will because it was instrumentally exploited by political parties to achieve their narrow party interests. It was an element of political struggle, used by political parties in destabilizing the already fragmented Slovak political scene. Generally, in all national referendums (except in 2003) there were legal and political controversies. The Slovak referendum democracy is just as dangerous as its representative version; in the latter, however, it is easier to conduct constitutional supervision over the state organs.

#### **References**

file.php?name=epern-ref-no-7.pdf&site=266.

Zieliński, Eugeniusz (2003): Referendum w Czechach, Słowacji, Słowenii. In: Zieliński, Eugeniusz/Bokszczanin, Izolda/Zieliński, Jacek (2003): Referendum w państwach Europy. Warszawa: Aspra-JR.

#### Elżbieta Kużelewska

### Direct Democracy in Slovenia

#### **Determinants**