On top-priority draft laws in the field of decentralization.
The first, interim stage of the reform of local self-goverment and territorial
organization of authority finished on October 25, 2015: local self-government bodies
in the voluntarily amalgamated territorial communities (VATC) have been elected.
The local councils of the new convocations will be able to work under the new
conditions of formation and to use local budgets, while their decisions might have an
invariant character. It is them, not the mythical 'Center' who will bear responsibility
for the committed mistakes.
This election considerably differs from all the previous elections in several ways:
- for the first time they have been held in accordance with a completely new
system, which will bear a long-term impact on the local and national policy;
- for the first time in Ukraine election to 159 newly amalgamated communities,
most of which have a very low institutional capacity, was held;
- due to the incomplete reform of the administrative and territorial division
(creation of amalgamated united territorial communities (VATCs) has actually
been a start of this reform), the system of administrative-territorial division
(ATD) of Ukraine, which is already quite alogical and complicated, has
become even more complex.
Ukraine has faced new challenges that require a fast and adequate response.
Challenge 1. Fragmentation at the level of districts
Starting from January 1, 2016, the newly created VATC shall assume the
responsibilities characteristic of the cities of regional subordinance, which will
invariably influnce the economic and organizational capacity of the districts with
VATCs.
Types of rural districts in Ukraine after the election on October 25, 2015
Upon analyzing the situation in a number of Ukrainian regions, it is possible to say
that the rural districts can be broken down into the following types:
Type
Characteristics
Consequences
Type 1. District without Typical district with a The system of public
VATC
district center - a town of authority bodies acts in a
district subordinance or a traditional
manner
in
settlement, or without a accordance
with
the
district center and a effective laws.
number of village councils
Type 2. Entire district - A single VATC covering A district council does not
one VATC
the entire territory of the represent
common
district has been created.
interests of the district
territorial community, the
competence of the district
council overlaps with the
competence of the VATC
council, a large part of
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Type 3. Entire region - an Several VATCs have been
aggregate of VATCs
created within one district
Type 4. Most territories of Most territories of the
the district - VATC
district, together with the
district center, have joined
the VATC, a small number
of village councils in the
district remain outside of
the amalgamation.
Type 5. Smaller part of the Smaller part of the district
district – VATC
amalgamated
into
a
VATC, while the other
parts of the district with
the district center remain
the same.
authorities delegated by
the district council are
taken away from the
district
state
administration.
The powers of the district
council overlap with those
of the VATC, the problem
of delegating the powers to
the
district
state
administration. The VATC
councils might reconsider
delegating the right to
represent
common
interests of the VATC to
the district council.
There is a problem of
distributing the powers
between
the
district
council and the councils of
VATC; there is a low
probability that the district
council will get financial
support, and that financing
of
the
educational
establishments
in
the
village councils that have
not
joined
the
amalgamated communities
will be well-balanced.
Low capacity of the VATC
to balance the network and
financing of education, as
well as fulfill other
authorities of the local
self-government bodies as
a town of regional
subordinance.
All these types of districts are available, for example, in Khmelnytskyi region (see
Appendix 1).
Considering the information presented in the chart, it is evident that the issue of
competition of powers between the district councils and the VATCs, as well as the
VATCs and the district state administrations depending on the district type should be
urgently dealt with.
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To this purpose, it is necessary to prepare the draft law on amendments to the laws of
Ukraine “On the local self-government in Ukraine” and “On the local state
administrations” in the part concerning the activity of the district councils and district
state administrations in districts of types 2-4. (The first version of the draft law has
been prepared).
Draft law on amendments to the Law of Ukraine “On voluntary amalgamation of
communities” has also been prepared. It introduces a new concept of ‘joining’ an
amalgamated community or enabling the village councils to join the amalgamated
communities following a simplified procedure.
The Ministry of Regional Policy, along with the Ministry of Finance should calculate
the budget support needs of the territorial communities in type-4 districts and VATC
in type-5 districts in 2016.
Challenge 2. Lack of any state supervision over the legitimacy of acts and
actions of the local self-government bodies
Ever since the Constitution of Ukraine was adopted in 1996, the norms of part 2 of
article 144: “Decisions of bodies of local self-government, for reasons of
nonconformity with the Constitution or the laws of Ukraine, are suspended by the
procedure established by law with a simultaneous appeal to a court” have not been
implemented yet.
For a while, an argument that impeded realization of this norm was that the
prosecution has a right for general supervision, and prosecutors have sometimes
protested against particular decisions of the local self-government bodies. However,
these were rare cases that did not prevent local self-government bodies from
exceeding their powers.
Now, when the prosecution no longer has a right for general supervision, decisions of
the local self-government bodies can be cancelled only in accordance with the
administrative procedure, at the initiative of private persons, and no state body has an
authority to control the legitimacy of decisions of the local self-government bodies.
In the situation, when in particular territories the majority of votes in the councils
belong to the ‘regional parties’ – either ‘properties’ of specific people or parties of
national minorities living in a particular community – there is a risk that the local
self-government bodies will pass decisions exceeding their jurisdiction.
In the current situation, when there is little chance that amendments to the
Constitution of Ukraine will be adopted, the only way to exert control is to impose
such responsibilities on the local state administrations, as stipulated by Article 119 of
the Constitution of Ukraine.
The first version of the draft law on amendments to the Law of Ukraine “On local
state administrations” regarding control over the legitimacy of decisions of the local
self-government bodies has been prepared.
Challenge 3. The newly elected mayors of towns, settlements, and villages might
be dismissed by the councils in opposition to the corresponding mayor. The
newly elected councils might give a vote of no confidence to the heads of the local
administrations from political motives.
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Upon introduction of a new election system, local councils consist of parties only,
while the election campaign has fuelled the local political life. Under such conditions
there might again be a situation that took place in Ukraine after the local election in
2006, and then in 2010. In the first case a large number of councils have given
motions of no confidence to the heads of the local state administrations, and after that
dismissed popular mayors in the cities of regional subordinance and delegated
management of these cities to the council secretaries who represented specific
political parties.
To respond to this challenge, it is necessary to amend the Law of Ukraine “On the
local self-government in Ukraine” in order to reduce the risk of manipulating with the
right to dismiss a mayor and to formalize the cases when the issue of dismissal can be
initiated, and which penalties can be imposed on the council if it abuses its powers.
The first version of the draft law has been prepared.
A draft law on amendments to the Law “On local state administrations” should be
prepared to regulate the issue of giving a vote of no confidence to the heads of local
state administrations so as to avoid local conflicts.
Challenge 4. Councils might adopt decisions fuelling local egoism and
orientation towards the national minority that has a dominating influence within
the territories under the jurisdiction of a particular council
There are districts in the territory of Ukraine with political preferences clearly
oriented not only towards the national minority living in a particular district, but
towards the national state of this minority. As a result, these territories are drifting
further and further away from the Ukrainian governmental, informational, and
linguistic domains. For example, the majority of village councils in Vynohradiv and
Berehove districts have put up the flags of Hungary.
In many territorial communities, where the major part of the population belongs to
the national minority, the Ukrainian language is rarely used, which makes the
Ukrainians a minority in these areas.
To partially fix this issue, it is suggested to amend the law on the local selfgovernment in Ukraine as to the use of local symbols, as well as the symbols of
Ukraine and the EU, and the procedure of using the languages of national minorities
and the Ukrainian language. Draft laws on these issues have been prepared.
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Challenge 5. The amalgamated communities cannot map out their territories
and manage the land resources
The amalgamated communities have got a quite large territory under their jurisdiction
– 120-300 square kilometers. However, there is no such document as ‘a community
territory planning chart’ (a title is conventional) in the Ukrainian law, which would
provide a possibility to clearly plan the domains of land resources use in a
community, map out different zones, etc. For instance, a community in Dunayevtsi
town unites fifteen village councils and a total of 50 settlements. According to the
effective law “On urban development regulation”, this community shall adopt more
than 50 general outlays, while the land between the settlements remains beyond the
planning powers of the community.
A lack of such a document as a community territory planning chart creates an extra
risk that the lands, even though managed by the local community, would be used in
an unreasonable manner.
Therefore, it is necessary to amend the laws “On urban development regulation” and
a number of accompanying laws. Such a draft law has been already prepared.
In my opinion, it is important to amend the effective laws as soon as possible to
tackle the abovementioned challenges. During the discussion and adoption of the
laws it would be possible to prepare the MPs of Ukraine for the forthcoming laws
based on the amendments to the Constitution of Ukraine.
Anatoliy Tkachuk
29.10.15
Appendix 1. Typology of districts as exemplified by Khmelnytskyi region
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Khmelnytskyi region
1 District without voluntarily amalgamated territorial communities (VATC)
2 Most parts of the district – VATC 866 km2 , 45 thousand
Polonskyi district
Polonska
Poninkivska
3 Entire district – one VATC 660 km2 , 21 thousand
Starosyniavskyi district
Starosyniavska
4 Entire district – an aggregate of VATCs
Volochyskyi district 1100 km2 , 52,8 thousand
Volochyska
Viytovetska
Narkevytska
5 Smaller part of the district – VATC
Horodotskyi district 1110 km2 , 56 thousand
Satanivska
District border / VATC territory / Settlement outside VATC / Name of VATC / Square area and
population of all VATCs / Square area and population of the region
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