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. Last Updated: 07/27/2016

Land Decree Holds Legal Water

President Boris Yeltsin's decree allowing private land ownership for the first time since the Bolshevik Revolution irked opposition legislators, who threatened to challenge the edict before the country's highest court.


Whether the president's move was fair and good is a matter of political debate, but -- according to sweeping powers granted the executive by the constitution -- it appears to be legal, attorneys say.


Signed March 7, the decree allows farmers to buy, sell, give away and lease property -- in effect, to own the land they have worked for decades. But the measure's hardline opponents in the legislature say they will bring it to the Constitutional Court.


Analysis suggests that challenging Yeltsin's action on legal grounds would turn up no wrongdoing.


First, under Article 93 of the 1993 constitution, the president is granted the power to issue decrees provided they do not conflict with existing federal laws or the constitution itself. As there are currently no laws on federal land ownership, the edict seems valid.


A hitch that could lend leverage to the opposition, though, is Article 76-2, which says that all land ownership questions must be decided by federal law and other regulations. But "other regulations" can have a wider meaning, one lawyer said.


"Here they do not refer explicitly to presidential decrees," said Maxim Smyslov, an attorney at the law firm Baker & McKenzie.


"But presidential decrees are also regulations for the purposes of the constitution, so basically [the decrees] should not contradict the constitution or federal laws," he said.


Another lawyer said that, in practice, presidential decrees have been invested with the force of federal law anyway.


"From my point of view, Yeltsin has many times interfered in various areas which, in accordance with the constitution, should be governed by federal laws, like taxation for example," said one Russian attorney, who did not wish to be identified.


The rough hierarchy of legislative acts starts from the constitution and works its way down through federal and nonfederal laws, presidential decrees, government resolutions and administrative acts put out by various ministries and federal bodies.


But if Yeltsin issues a decree on a subject not regulated by existing law, that will have the force of law until a new law is signed contradicting the decree, lawyers have said.


In this case, that new law is the Land Code, which has passed its first reading in the State Duma, the lower house of parliament. One lawmaker said Yeltsin had promised to shelve his decree if the Duma passed the Land Code by April.


Now, the edict will likely remain in force only until the Land Code is approved by parliament.


"Apparently the decree should be in effect until the Duma adopts its [law] on land ownership," said the Russian lawyer.


Sometimes, though, presidential edicts do contradict existing legislation.


"Strictly speaking, if [the Land Code] is a federal law and adopted after the decree, then it should supercede the latter," Smyslov said.


"In practice however, sometimes presidential decrees overrule other legislation," he said.


He cited a Yeltsin decree mandating detention for up to two months of persons charged with a crime, in conflict with the constitution, which says a person can be held only 48 hours.


The Russian lawyer stopped short of calling Yeltsin's move unconstitutional. Smyslov said there are too many variables in this case to make such a judgment.


Further muddying the waters, a whole section of the first part of the Civil Code dealing with land issues is not meant to come into effect until after passage of the Land Code.


But presumably, Yeltsin would not sign his name to a federal Land Code that conflicted with the basic premise of his decree.


Lawyers said opposition deputies probably have a reasonable case against the decree, but the Constitutional Court has so far acted quite conservatively.


"I have the impression that they've been quite cautious about calling acts of the higher bodies in power and the president unconstitutional," Smyslov said, recalling the Chechen war decisions upheld by the court.