Venice Commission gives damning verdict on Crimean "referendum"
The Council of Europe's Venice Commission has provided a damning assessment of the decision to hold a referendum in the Crimea on the latter's status. The opinion was adopted by the Commission on March 21 just 2 weeks after the Secretary General of the Council of Europe, Thorbjorn Jagland asked them to assess whether the decision taken by the Crimean parliament to hold a referendum on becoming a constituent territory of the Russian Federation or restoring Crimea's 1992 constitution was compatible with constitutional principles.
It found that the referendum was neither in compliance with Ukraine's Constitution, nor with general democratic standards.
"It is therefore clear that the Ukrainian Constitution prohibits any local referendum which would alter the territory of Ukraine and that the decision to call a local referendum in Crimea is not covered by the authority devolved to the authorities of the Autonomous Republic of Crimea by virtue of Article 138 of the Ukrainian Constitution. This is confirmed by the judgment of the Constitutional Court of Ukraine of 14 March 2014 recognising the decision as unconstitutional."
"While the first requirement for the validity of the referendum is that it may not contradict the provisions of the Constitution of Ukraine, this is by no means sufficient. It is also necessary that the referendum complies with basic democratic standards for the holding of referendums ...
... it must be conducted in accordance with legislation and the administrative rules that ensure the following principles:
the authorities must provide objective information;
the public media have to be neutral, in particular in news coverage;
the authorities must not influence the outcome of the vote by excessive, one-sided campaigning;
the use of public funds by the authorities for campaigning purposes must be restricted. “
A number of circumstances make it appear questionable whether the referendum of 16 March 2014 could be held in compliance with international standards. Such circumstances are:
Ukraine does not at the moment have a law regulating local referendums. It is
therefore not clear according to which legal rules the referendum will be carried out.
While the Venice Commission has not made a comprehensive assessment of the current situation in Crimea, the massive public presence of (para)military forces is not conducive to democratic decision making.
Concerns have been expressed, including by the OSCE with respect to the freedom of expression in Crimea;
The period of only 10 days between the decision to call the referendum and the
referendum itself is excessively short.
On 11 March the Supreme Rada adopted a declaration on the independence of
Crimea. This raises doubts with respect to the legal effects of the referendum and the neutrality of the authorities.
Moreover, the referendum question is not worded in a neutral way. It provides two alternatives: independence or return to the 1992 Constitution. It is not possible to directly express the wish to maintain the current Constitution. In addition, the reference to the 1992 Constitution is ambiguous. This text underwent major changes in September 1992, making it much clearer that the Autonomous Republic is part of Ukraine. Does the referendum refer to the original text adopted in May or the revised text as amended in September? The Code of Good Practice on Referendums requires (at I.3.1.c) that “c. The question put to the vote must be clear; it must not be misleading; it must not suggest an answer; electors must be informed of the effects of the referendum; voters must be able to answer the questions asked solely by yes, no or a blank vote.”
Holding a referendum which is unconstitutional in any case contradicts European standards. The Code of Good Practice on referendums provides in Part III.1 on the Rule of Law:
The use of referendums must comply with the legal system as a whole, and especially the procedural rules. In particular, referendums cannot be held if the Constitution or a statute in conformity with the Constitution does not provide for them, for example where the text submitted to a referendum is a matter for Parliament’s exclusive jurisdiction.
It also has to be taken into account that the referendum concerns an issue of outstanding importance. ...
With respect to the referendum of 16 March the Venice Commission can only note that no negotiations aiming at a consensual solution took place before the referendum was called. Due to the multi-ethnic composition of the population of Crimea (Russian, Ukrainians, Tatars and others) such negotiations would have been particularly important.
The Constitution of Ukraine like other constitutions of Council of Europe member states, provides for the indivisibility of the country and does not allow the holding of any local referendum on secession from Ukraine. This results in particular from Articles 1, 2, 73 and 157 of the Constitution. These provisions in conjunction with Chapter X of the Constitution show that this prohibition also applies to the Autonomous Republic of Crimea and the Constitution of Crimea does not allow the Supreme Soviet of Crimea to call such a referendum. Only a consultative referendum on increased autonomy could be permissible under the Ukrainian Constitution.
Moreover, circumstances in Crimea did not allow the holding of a referendum in line with European democratic standards. Any referendum on the status of a territory should have been preceded by serious negotiations among all stakeholders. Such negotiations did not take place.
The opinion in full can be read here: http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2014)002-e