Background

By letter dated 7 March 2014 the Secretary General of the Council of Europe, Mr T. Jagland, asked the Venice Commission to provide an opinion on “whether the decision taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to organise a referendum on becoming a constituent territory of the Russian Federation or restoring Crimea’s 1992 Constitution is compatible with constitutional principles”.

On 6 March 2014 the Supreme Rada (Council) of the Autonomous Republic of Crimea adopted a Resolution “On the all-Crimean referendum”. According to the Resolution, the voters are given two options: "1) Do you support the reunification of the Crimea with Russia as a subject of the Russian Federation? 2) Do you support the restoration of the Constitution of the Republic of Crimea as of 1992 and the status of the Crimea as a part of Ukraine?". Article 3 of the Resolution provides that the option supported by the majority of the votes shall be deemed a direct expression of the will of the Crimean population.

On the ballot paper the two questions appear as alternatives, i.e. the voters are not asked to say yes or no to each question but they can either vote for the first or the second alternative.

The Resolution was passed on the basis of Articles 18.1.7 and 26.2.3 of the Constitution of the Autonomous Republic of Crimea. Article 18.1.7 provides that among the powers of the Autonomous Republic of Crimea is “calling and holding of republican (local) referendums upon matters coming under the terms of reference of the Autonomous Republic of Crimea”. In turn, according to Article 26.2.3 “passing of a resolution upon holding of a republican (local) referendum” belongs to the powers of the Supreme Rada”. These provisions are based on Article 138.2 of the Constitution of Ukraine according to which the “organising and conducting local referendums is within the competence of the Autonomous Republic of Crimea”.

In order for the referendum to be constitutional and legal, it would be required that the issues put before the voters be issues which can be the object of a local referendum under the Constitutions of Ukraine and the Autonomous Republic of Crimea. The Constitution of Ukraine enjoys supremacy over the Constitution of Crimea as an autonomous republic. Ukraine is a unitary state (Article 2.2 of the Constitution of Ukraine). According to Article 132 of the Constitution of Ukraine, “the territorial structure of Ukraine is based on the principles of unity and indivisibility of the state territory, the combination of centralisation and decentralisation in the exercise of state power, and the balanced socio‐economic development of regions (…)”. Under Article 134 of the Constitution of Ukraine, “the Autonomous Republic of Crimea is an inseparable constituent part of Ukraine and decides on the issues ascribed to its competence within the limits of authority determined by the Constitution of Ukraine”. The Autonomous Republic of Crimea therefore enjoys autonomy only to the extent that powers were transferred to it by the Constitution of Ukraine.

Accordingly, Article 135 of the Constitution of Ukraine holds that, “regulatory legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea and decisions of the Council of Ministers of the Autonomous Republic of Crimea shall not contradict the Constitution and laws of Ukraine and shall be adopted in accordance with and in pursuance of the Constitution of Ukraine, laws of Ukraine, acts of the President of Ukraine and the Cabinet of Ministers of Ukraine”. A corresponding provision is included in Article 28 of the Constitution of the Autonomous Republic of Crimea: “The statutory acts of the Supreme Rada of the Autonomous Republic of Crimea and the Council of Ministers of the Autonomous Republic of Crimea upon any and all matters regarding the powers of the Autonomous Republic of Crimea shall conform to the Constitution of Ukraine and Ukrainian laws.” An act by an authority of the Autonomous Republic of Crimea which is contrary to the Constitution of Ukraine is therefore also contrary to the Constitution of Crimea.

Conclusions

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.