Report on Local and Regional Democracy in Ukraine - CG (8) 22 rev.Part II

Rapporteurs: Leon KIERES (Poland) and Louis ROPPE (Belgium)

---------------------------

EXPLANATORY MEMORANDUM

I. INTRODUCTION

1. In 1998, the Congress examined a first monitoring report on the situation of local and regional democracy in Ukraine¹. On this basis, the Congress adopted Resolution 68 (1998) and Recommendation 48 (1998) for the intention of the Committee of Ministers and the Ukrainian authorities concerned. In Resolution 68, the Congress instructed its Bureau to:

Follow closely the progress of local and regional democratic reform in Ukraine,Monitor the extent to which the proposals contained in Recommendation 48 are implemented; Take whatever steps may be considered necessary to encourage the implementation of the above Recommendation, e.g., organisation of a Seminar(s) in Ukraine with the host authorities; organisation of further fact finding missions; preparation of a progress report (…).

2. Seriously concerned by the worsening of democracy and rule of law at local and regional level in Ukraine, on 1st February 2001, the Congress Bureau welcomed the proposal made by the responsible Rapporteurs to draft a second monitoring report on the country. This proposal has been formulated in the conclusions of the Information report prepared by the Rapporteurs further to their official visit to Kyiv on 6-8 December 2000².

The Bureau decision to prepare a second monitoring report on Ukraine has been agreed with the President of the Ukrainian Delegation to the Congress and takes into account the conclusions of the first monitoring report.

3. On 27 April 2001, at its 5^th meeting, the Congress’ Institutional Committee has been officially entrusted with the preparation of this second monitoring report.

In this context, the Rapporteurs made two official visits to the country. For their work, they were assisted by experts MM. Heinrich Hoffschulte (Germany) and Giuseppe Alessandro La Scala (Italy). Mr Riccardo Priore, participated in the process as representative of the Council of Europe Secretariat.

4. The first visit took place on 17-21 July 2001 in Kyiv and Cherkassy and was notably devoted to meetings with local and regional elected representatives. During this visit, the Rapporteurs met almost 50 people.

The second visit, organised on 3-4 September of the same year, was limited to the capital. On this occasion, the Rapporteurs met Mr Kinakh, Prime Minister and Mr Pluschtch, President of the Parliament.

The detailed programmes of these meetings, prepared in co-operation with the Foundation for Local Self-Government of Ukraine, are presented in Appendix 1. The Rapporteurs wish to thank the Foundation for its co-operation.

5. After their visits, the Rapporteurs drew up the present report and presented it to the Congress’ Institutional Committee together with a preliminary draft recommendation and a preliminary draft resolution.

The Institutional Committee approved these documents at its 6^th meeting (Strasbourg, 2 October 2001). These texts also rely on two specific expert reports³, also approved by the Committee, which represent a concrete illustration of the difficult relation between elected mayors and appointed governors in the country.

Taking into account these reports, the Institutional Committee asked the Rapporteurs to present a draft recommendation and a draft resolution on the situation of local and regional democracy in Ukraine to the Congress Mini-Session (Strasbourg, 8 November 2001) for final adoption and transmission to the Committee of Ministers, the Parliamentary Assembly and the Ukrainian presidential, governmental and parliamentary authorities concerned.

II. GENERAL EVALUATION AND PROPOSALS

6. Bearing in mind Recommendation 48 (1998) and Resolution 68 (1998) as well as the problems described in the Information report prepared at the beginning of this year (see footnote 2), during their visits, the Rapporteurs informed the Ukrainian authorities that they are seriously concerned by the negative situation of local and regional democracy in the country.

They stressed that beyond promises, expressions of friendship and of good intentions, the real interest of the Congress lies in the full implementation of the European Charter of Local Self-Government (ECLSG) and of the CLRAE recommendations.

7. For this reason, for the first time, during their official visits:

The Rapporteurs decided to favour a direct contact with different local and regional elected representatives who do not necessarily share the same opinions of the officials met in past visits and who, in some cases, experienced political pressure and harassment by representatives of central authorities (see Chapter III.7);

Meetings were organised not only in co-operation with the “Foundation for Local Self-Government” (which works under the aegis of the President of Ukraine) but also with Prof. Vadym Prohsko, Ukrainian member of the CLRAE Group of Independent Experts on the European Charter of Local Self-Government.

8. After the visits (the issues examined are presented in Part III), the Rapporteurs concluded that:

Ukraine remains a centralised state. Some of its main authorities are still opposed to any reform involving the decentralisation of public powers and responsibilities on the basis of the subsidiarity principle (Article 4.3 of the ECLSG). When ratifying the ECLSG, the Ukrainian authorities probably underestimated the scope and political impact of this Council of Europe convention which is far from being fully implemented (and in some cases even understood) by the competent authorities;

Despite the above mentioned promises and expressions of good intentions, the existing laws and Constitution concerning local and regional self-government are weak, often unclear and badly implemented; therefore they should be respected and complemented by other carefully co-ordinated pieces of legislation;

Further to the adoption of the CLRAE Recommendation (48) 1998, the above mentioned legislative deficit and disorder contributed to create a serious democratic as well as rule of law deficit in the practice which represents a worrying step back.

9. The Rapporteurs informed presidential, governmental and parliamentary representatives that they are about to conclude that there is a lack of political will to improve the situation.

They expressed the opinion that the new CLRAE monitoring report on the situation of local and regional democracy must be regarded by Ukrainian authorities as a constructive way to express the country’s potential and satisfy the Ukrainian population’s need for democracy, rule of law and human rights.

10. The Ukrainian authorities who were met during the second official visit (3-4 September 2001) reacted to the concerns expressed by the Rapporteurs with a number of significant explanations.

In this context, the Rapporteurs noted that:

The ECLSG is recognised as an important tool to regulate the share of administrative and executive powers within the country and that local democracy is considered a pre-requisite for implementing the subsidiarity principle.

The apparent lack of political will to reinforce local and regional self-government in the country is mainly determined by the current political situation in which some political parties continue to consider the ECLSG and the decentralisation process a threat for the cohesion of the country and a danger for its future unity.

For the time being, and at least until the next parliamentary elections (March 2002), it would be politically inappropriate to force the situation and try to introduce hasty or radical reforms towards the reinforcement of local and regional self-government; although these reforms would be in line with the commitments taken at international level, they could offer viable political arguments to the opposition forces accusing the ruling parties to favour the country fragmentation; this could lead to the mobilisation of masses of people still convinced that communism is the only way to face the heavy economical difficulties;

The current efforts made by the government are therefore concentrated at strengthening the economic development and promoting the consolidation of a middle class asking to take part in the public decision process at local and regional level.

11. In the light of the above, the Rapporteurs:

Declared that the worsening of the situation of local and regional self-government in the country now necessitates a positive signal from the higher political Ukrainian authorities expressing their genuine will to respect the Council of Europe principles in the field of democracy and rule of law at local and regional level.

Are of the opinion that the meetings with the President of the Parliament and the Prime Minister held on 3-4 September 2001, represent an encouraging sign in this direction. However, they regret that the (confirmed) meeting with the President of the Republic has not taken place.

Took note of the Order 749/2001 that the President of the Republic signed on 30 August last on “the State support of local self-government in development in Ukraine” (see Appendix 3). They consider this text as an important reply given by the President to the CLRAE and hope that, as mentioned in the Decree:

The development of local self-government will be really considered as a political priority,

The governmental programme appended to the Decree will represent a substantial support for the reinforcement of local and regional democracy (see Appendix 3, part II),

The current legislative deficit and disorder in the field of local and regional self-government and the problematic relation between locally elected authorities and local executive powers will be quickly improved.

The Rapporteurs welcomed the decision contained in the Presidential Order to make an evaluation of the respect of international obligations taken by Ukraine in the field of local self-government, and this, in co-ordination with the Council of Europe authorities concerned.

Asked the President of the Parliament’s Committee responsible for local issues to forward to the Council of Europe’s authorities an official request of opinion on the emerging draft law on local self-government (which is still a Committee document and has not yet been examined by the Parliament in a plenary sitting).

The above mentioned draft law was received by the Congress’ authorities on 28 August 2001. A legal expertise is now being prepared by the Council of Europe’s Directorate of the co-operation for local and regional democracy, which normally assists member States in their legislative reform process. The CLRAE experts have been associated to this activity.

12. It should be stressed that after the Rapporteurs’ official visits, on 11 September 2001, Mr Myroslav Pittsyk, Executive Vice-President of the Association of Ukrainian cities, addressed a letter of thanks to the CLRAE President (see Appendix 4).

In this letter, Mr Pittsyk expresses the Association’s gratitude to the CLRAE Rapporteurs for having stimulated some State officials to make some steps towards the reinforcement of local democracy in Ukraine.

More particularly, this letter refers to the President Decree “On the State Support of Local Self-government Development in Ukraine” (signed on 30 August 2001), the adoption of the Governmental Programme in this field, the meeting of the Prime-Minister of Ukraine with the members of the Association Board and the recent relevant orders of the Prime-Minister on local self-government support.

III. THE ISSUES EXAMINED

1. The diffusion and the implementation of the European Charter of Local Self-Government: an overview

13. The ECLSG was ratified by the competent Ukrainian authorities, without any reservations, on 11.09.97. It entered into force in the country on 01.01.98.

The Rapporteurs noted that the Parliament Act related to the Charter ratification was passed without publishing the text of the Charter itself, that numerous official translations of the Charter do not appear accurate and that the competent authorities did not undertake the necessary activity to make the ECLSG well known and understood by local authorities’ representatives.

This seems left to the good will of inspired (and brave) mayors who often expose themselves to political pressures and harassment by the governors and other executive powers of the State (see chapter III.7 of this report). In this context, the Rapporteurs noted the declaration of the President of the Parliament who stated that “Ukraine ratified the Charter without identifying the terms of its implementation” and that “the best use of the Charter is made by corrupt mayors”.

14. The lack of official concrete activities aimed at broadening knowledge of the Charter’s existence contributes to the difficulties encountered with changing the mentality of the people with regard to local democracy. This mentality would seem to define the State as having all the powers and the citizens cannot make their voice heard at local level. Exceptions to this mentality are, for the time being, still limited.

15. The Rapporteurs have the impression that central authorities have only recently started to consider the Charter as a powerful means to decentralise the executive and administrative powers on the basis of the subsidiarity principle.

The Rapporteurs are of the opinion that in order to fully implement the Charter in Ukraine, the vertically conceived structure of the State administration should be re-shaped on the basis of a bottom-up conception of the share of public powers.

16. Among the arguments heard from Ukrainian authorities for justifying the growing difficulties to quickly improve the Charter’s implementation, the Rapporteurs noted “that hasty reforms can bring to revolutions, and that a gradual evolution represents the only viable way forward” and that “the problems linked to self-government are also due to economic inefficiency and that for this reason the current territorial organisation should be better defined”.

In this respect, The Rapporteurs were informed that a draft law is being examined by the Parliament. In accordance with this draft law, a single type of local unit would be created, drawing on the experience of the Polish reform. There would be approximately 6000 units; the administrative territory of Ukraine would be reorganised accordingly. A Commissioner for territorial reform has been appointed by the President to speed up all necessary action on the governmental side. Once approved by the Parliament, the legislative package would be submitted to a referendum.

The Rapporteurs reaffirmed the principle that when important decisions concerning the territorial organisation are adopted, fundamental rights and duties of local and regional authorities should be also secured. More particularly, they considered that Article 5 of the ECLSG should be carefully respected⁴.

2. The legislative deficit and the inconsistency of the main legal texts

17. From a general point of view, the Rapporteurs think that the existing legislation presents a number of inconsistencies.

Article 140 of the Constitution states that “The bodies of local self-government, which represent common interests of communities of villages, settlements and cities, are rayon (district) and oblast (region) councils”.

Article 1 of the Law on local self-government defines raion and oblast councils as “local self-government councils, which represent the common interests of territorial communities, settlements and cities”.

The local communities composing oblasts and raions are not recognised by the Constitution and the relevant laws as distinct communities, disposing of their own legal personality.

18. The Rapporteurs concluded that The ECLSG, in Ukraine, also applies to raions and oblasts, which represent the common interest of local communities.

This implies that a country like Ukraine of about 50 million inhabitants is deprived of a legally recognised, democratic system of regional self-government. The Rapporteurs fear that this gap could reinforce the centralistic character of the Ukrainian State.

19. Concerning local authorities’ executive bodies, Article 58 states that (1) “The executive body of the raion and oblast councils shall ensure the exercise by the council of its powers, ascribed to it by the Constitution of Ukraine, this and other laws”, that (2) “it shall provide organizational, legal, informational, analytical, material and technical support for the activities of the council, its bodies and deputies (…)” and that (3) “(…) it shall be formed by the corresponding council (…)”.

20. The Rapporteurs concluded that the role of raion and oblast executive bodies is limited to administrative tasks. Should this be confirmed, the regional councils would be deprived of executive bodies of a political nature. This would represent a violation of Article 3.2 of the ECLSG.

21. As regards local authorities’ responsibilities, the Rapporteurs are very much concerned by the confusion existing in the relevant Ukrainian legislation. They realised that a disproportionate number of laws deal with the powers of local authorities and that these powers are constantly modified by the Parliament, the President and the Government. In some cases these texts even appear to be contradictory.

The Rapporteurs are convinced that this situation must be clarified, possibly, by the adoption of a Municipal Code, defining the responsibilities of the different tiers of public administration of the country, and this, on the basis of the subsidiarity principle (Article 4.3 of the ECLSG).

22. During the meetings with the representatives of the Foundation of Local Self-Government and the Parliament Committee responsible for local issues, the Rapporteurs were provided with a long list of laws currently in force as well as draft laws and presidential decrees related to territorial organisation and local/regional self-government (see Appendix 3)⁵. They were positively impressed by this long list. However, given the well known difficulties met by the Ukrainian authorities in the adoption of well-formulated and co-ordinated legal acts and in their strict implementation, for the time being, the Rapporteurs merely see this list as a promising formal starting point and think that a final judgement on it will be possible only after the evaluation of its concrete implementation.

23. The Rapporteurs also noted a new draft law on local self-government (see paragraph 11.4 in Part II). The adoption of a new law on local self-government represents an implementation of Recommendation 48 (1999), paragraph 13 that urges the Ukrainian Parliament “to draft and adopt legislation on local and regional self-government (…)”.

When adopted and implemented (the Rapporteurs were informed that the forthcoming parliamentary elections to take place in March 2002 could again slow down the whole legislative process), this text might become a new important framework for improving the situation of local and regional democracy in the country.

As already indicated, a legal expertise concerning this bill is now being prepared by the Council of Europe’s Directorate of the co-operation for local and regional democracy.

3. The weakness of the regional self-government

24. The Rapporteur on regional democracy is of the opinion that some of the normative inconsistencies mentioned above seriously undermine the existence and the well functioning of regional self-government in the country.

This is because:
a) The constitutional and legal provisions establishing that raion and oblast councils represent the common interest of local communities do not constitute an appropriate basis for the setting up of well defined regional identities, a balanced distribution of functions between different tiers of self-government and may generate a serious confusion between local and regional administration in the population.

In this respect, for a well-balanced functioning of all tiers of self-government and a clear understanding and share of the respective responsibilities, the law and the Constitution should clearly distinguish local from regional self-government.

b) As already mentioned, the weakness of regional democracy is worsened by the provision of the law on local self-government limiting the role of the executive bodies of the raions and oblasts councils to administrative tasks. This, in practice, deprives the councils of subordinated political structures, accountable to them. One should stress that it would not be acceptable that the State executive bodies play any role in this respect. This would reduce the political independence of the raion and oblast councils.

The law on local self-government should be clarified so that all councils (at local and regional level, including the cities of Kyiv and Sevastopol) can have their own executive bodies (governments politically accountable to them) and administrations (personnel). This would represent a concrete implementation of Articles 3.2 and 6.1 of the ECLSG.

c) Oblasts and raions elected councils are weak because their own powers are very limited and they do not dispose of their own resources except the resources allocated by the State (share taxes and transfers).

Moreover, almost all important responsibilities are to be delegated to the state peripheral administrations controlled by the President administration (Article 44 of the Law on local self-government). This weakness should be also corrected.

4. The situation in Kyiv and Sevastopol

25. From a general point of view, the Rapporteurs are concerned by the fact that the legal provisions concerning local self-government are not applicable to Kyiv and Sevastopol. They think that the constitutional provision (Article 140.2), which foresees the adoption of separate laws for these two Ukrainian cities should not deprive them in the practice of an administration based on a fully operational system of local self-government respecting the principles, contained in the ECLSG.

It is not admissible that Kyiv and Sebastopol city and district councils do not have their own administrations, whose role is currently played by the city and district State administrations. As a consequence, Mr Omelchenko, the current mayor of the capital (who is also the president of the Association of the Ukrainian cities) was appointed by the President as Head of the city State Administration. Similarly, the elected heads of the district councils are at the same time appointed by the President as heads of the district State administrations. In practice, these State administrations also act as executive bodies of councils.

26. The Rapporteurs consider this structure as an anomaly. They regret that the capital of Ukraine is deprived of its own administration and of its own executive bodies, exclusively accountable to the city and the districts councils. In this regard, they wish to remark that Articles 3.2 and 6.1 of the ECLSG should also be applied in Kyiv and Sebastopol.

Moreover, the Rapporteurs regret that in spite of the express provision of the Constitution establishing that “peculiarities of exercising local self-government in (…) Sevastopol are determined by separate laws (…)”, no law on the city of Sevastopol has been adopted so far.

5. The overwhelming character of delegated responsibilities of local authorities

27. Further to the confusion existing in the legislation concerning the definition of the responsibilities of local authorities (see paragraph 21, chapter III.2), it represents one of the main shortcomings of the Ukrainian system of local self-government. The combination of these problems can lead to the conclusion that Articles 3.1 and 4 of the ECLSG are still not fully respected in the country.

However, the Rapporteurs considered that this situation could be improved when implementing the recently adopted Budget Code (see the following chapter), which establishes the sharing of powers in relation to the local budgets. With this in mind, the provisions regarding local functions contained in the new draft law on local self-government should be co-ordinated with the above-mentioned Budget Code.

28. An important number of locally elected representatives who were met by the Rapporteurs confirmed that, in practice, local authorities have, themselves, very limited (full and exclusive) responsibilities and that they are suffocated by a disproportionate number of delegated powers. For this reason, local authorities do not even have the time to fulfil their own (limited) responsibilities.

29. On the occasion of the Round Table organised in Cherkassy on 19 July 2001 (see the programme of the first visit in Appendix 1), the Rapporteurs were informed that approximately 80% of the working time of local representatives is dedicated to the implementation of delegated responsibilities and that almost 50% is reserved to the contacts with the oblasts administrations.

One should also note the very limited power of local authorities over "their" own personnel. The latter is strongly committed to the implementation of delegated responsibilities (about 2/3 of them work on delegated matters and approximately 50% are working for the cities, directly employed or controlled by central authorities). In this context, local authorities encounter difficulties in exercising their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority (Article 4.2 of the ECLSG) and in adapting the exercise of delegated responsibilities to local conditions (Article 4.5 of the ECLSG).

30. Other consequences of this unbalanced system is that almost the totality of financial State transfers are used to achieve delegated responsibilities and that, as far as these responsibilities are concerned, locally elected representatives and officials are completely under the control of State administrations. The overwhelming character of delegated responsibilities justifies a large local and regional bureaucracy submitted or directly controlled by central authorities. This bureaucracy favours lack of transparency, abuses and corruption.

31. The Rapporteurs are of the opinion that substantial responsibilities should be transferred to local authorities by law. These responsibilities should replace delegated powers such as education and health care, which represent for local authorities an external disproportionate burden. The transfer of responsibilities to local authorities should be done together with the necessary financial resources to carry them out.

6. The share of the State financial resources and the local taxes

32. As already indicated, the local finances of Ukraine are currently subject to an important reform. The Budget Code promulgated on 12 July 2001 establishes new relations between State and local authorities; these relations should allow a more stable, balanced and transparent sharing of the available resources, taking into account the responsibilities carried out by local authorities. This new system will be operational when preparing the State and local budgets of 2002.

33. The Rapporteurs noted that the Budget Code:
a) Determines the necessary resources on a long-term basis taking into account the responsibilities, which have to be financed by local budgets;
b) Establishes the rules for assessing the charges related to the above responsibilities and the necessary resources on an objective basis;
c) Deletes the system based on shared taxes and replaces it by a system based on a “fiscal resources basket” referring to all categories of local and regional authorities of the country;
d) makes a distinction between State and local authorities’ financial resources;
e) creates a system of financial equalisation allowing general transfers calculated on the basis of objective criteria taking into account the concrete responsibilities and the available resources.

34. On the basis of this important reform, as from 2002, the main local and regional authorities of the country will be entitled to resources fixed by law and to direct transfers from the State in the framework of the financial equalisation system, calculated on the basis of objective criteria. However, it should be noted that even if smaller local authorities will have more autonomy in the management of their expenses, their budgets would continue to depend on higher authorities.

35. Concerning the present situation, the Rapporteurs were informed that local authorities are entitled to financial resources of their own but that these resources are not adequate and commensurate with their own responsibilities. The current level of local taxes is not higher that 4% (average). They were also informed of the lack of clear rules on municipal property and on its direct management by the local authorities concerned.

With this in mind, the Rapporteurs considered that the Budget Code constitutes an important step towards the full implementation of Article 9 of the ECLSG but they remain convinced that, from a political point of view, other efforts are still necessary.

7. The problematic relationship between local, regional and central authorities and the growing number of removal of mayors from office

36. As already mentioned, the Rapporteurs consider the Ukrainian public administration strongly centralised and vertically conceived. During their visits, they were informed by the Association of Ukrainian cities that attempts are constantly made to reinforce this structure. The consequence is that even if the right to self-government is granted by the Constitution, in practice, higher authorities very often violate local authorities’ rights.

37. In this context, oblasts administrations and their governors (appointed by the President) in some cases, exert strong pressure over elected mayors and their personnel.

The majority of controlling state agencies and bodies, which have the right to supervise the activities of cities and villages, are subordinated to the oblasts administrations. These bodies are: police, fire inspection services, tax inspection services, financial control services, labour and consumer rights protection agencies, sanitary inspection services, etc.

38. The Rapporteurs were informed that when the political will is not respected, some officials from the administrations and controlled agencies of the oblasts do not hesitate to directly threaten local councillors, local staff and their families in relation to their jobs, their freedom or the supply of resources.

39. In this context, Mr Olynik, Mayor of Cherkassy, former President of the Association of Ukrainian cities and candidate in the last presidential elections, informed the Rapporteurs that he was submitted to criminal investigations several times without any democratic guaranty and in violation of the law. His deputy was arrested and jailed for 9 months simply because investigations were started on his hunting rifle authorisation. He was then released without any explanation or apology.

40. The disturbing pattern of political pressure on locally elected mayors by oblasts administrations has intensified during 2000 when a number of mayors unwillingly left their posts. Some of them resigned and others were removed by a majority vote of the city council. According to these mayors themselves, as well as other mayors, media and sources in the Association of Ukrainian cities, in all of these cases city council members were pressurised by oblasts authorities to vote their mayors out of power for reasons linked to the mayors’ performance.

41. The Association of Ukrainian cities is of the opinion that these cases are typical examples of how oblasts State authorities can remove locally elected mayors if they refuse to give way to the interests of oblasts’ officials. According to the Association, several mayors throughout Ukraine left their posts under similar circumstances during 2000.

42. On the basis of the information gathered, it appears that the cities concerned by this kind of pressure are Myrhorod, Luhansk, Romny, Shostka, Konotop, Lebedyn, Krasnodon, Pervomaisk and Cherkassy. These names are to be added to the list made by the Rapporteurs on the occasion of their last visit in December 2000 and which also refers to Zaporizzhia, Vasylkiv, Kremenchuk, Derazhnia, Chortkiv, Sukhodilsk, Hluhkiv, Tsiuriupynsk, Pryluky and others. A document related to some of these cases has been sent to the Congress Secretariat from the Association of Ukrainian cities on 21 August 2001.

43. On 27 April 2001, the CLRAE Institutional Committee approved an expert report on the dismissal of the mayor of Myrhorod by its own municipal council (Poltava Oblast)⁶. The decision to organise an expert mission to verify the facts was taken on the basis of an appeal of the above mentioned mayor to the CLRAE and in light of the possibility that the above-mentioned episode did not constitute an isolated event, but illustrated the difficult political relations that exist between local authorities and central government regional bodies in Ukraine. The conclusions of this report were twofold:

On the basis of the information provided, the municipal council’s decision to dismiss the mayor appears to have no full justification under the Law on Local Self-Government (Article 79, I.3 and II);

The hypothesis that the officials of the state administrative body at regional level had a special interest in the mayor’s removal from office and that they acted in such a way as to exert pressure on him and his fellow members of the Myrhorod Municipal Council to bring about his resignation or removal from office does not appear unfounded.

Further to the decision of the Institutional Committee, this report has been published and transmitted to the Ukrainian authorities.

44. During the first Rapporteurs’ visit to Kyiv, on 18 July 2001, a meeting was organised under the aegis of the Foundation for local self-government upon the request made by Mr Pautov, the newly elected mayor of Myrhorod and Mr Levchenko, secretary of the Myrhorod city council. A number of Myrhorod citizens and officials were also invited to take part in this meeting (see the programme presented in Appendix 1). The Rapporteurs realised that the venue of the meeting – organised under the aegis of the “Foundation for Local Self-Government” - was not communicated until the very last minute.

45. During the meeting, the CLRAE Institutional Committee was accused of approving an expert report, which was groundless, biased and not carefully considered. Arguments for these kinds of accusations are contained in a document including several appended official texts. This document is signed by a number of Myrhorod city council members and addressed to the CLRAE President (an English translation was also provided). In this text, the CLRAE is asked to declare the work of the Institutional Committee’s expert as invalid and to offer an official apology for spreading false information on the city of Myrhorod.

46. In this context, the Rapporteur on regional democracy was given a personal letter, written in Ukrainian. In response, he made clear that he was not acting as a Polish citizen but as a representative of the Congress of Local and Regional Authorities of Europe.

It should also be noted that during the meeting the Rapporteurs did not, in anyway, engage in a discussion concerning the allegations put forward by the Myrhorod representatives.

47. After the meeting, the Rapporteurs agreed that it was inadmissible that representatives of a Council of Europe body should be treated in such a manner, independent from the contents of the arguments presented.

After a careful examination of the document addressed to the CLRAE President, it appears that the arguments and texts presented confirm the preliminary conclusions of the first expert report.

With this in mind, on 2 October 2001, the Institutional Committee approved a second expert report⁷, which, by replying to the document presented by the Myrhorod representatives, confirms the first expert’s conclusions.

48. The Rapporteurs wish to remark that the conditions of office of locally elected representatives shall provide for free exercise of their functions (Article 7.1 of the ECLSG) and that the control must refer exclusively to acts and, be kept in proportion to the importance of the interests which it intends to protect (Article 8.3 of the ECLSG).

8. The weakness of the status of mayors

49. The Myrhorod case also represents a good example of the weakness of the mayor status as well as the relationship he/she has with the city council and the local executive committee.
The mayors’ status and his/her responsibilities are only partially defined by the Ukrainian Law on Local Self-government.

The Rapporteurs think that this general legislation should be complemented by specific regulations better defining the mayor status, the rules governing his/her relations with the council and the executive committee, the execution of his/her responsibilities, the legal and judicial guarantees necessary to fulfil them, etc.

The problem related to the weakness of the status of mayors should never be complemented or corrected by facilitating the conditions of the removal from office of mayors.

50. As already illustrated in presenting the Myrhorod case, according to the law on local self-government the powers of a mayor shall be terminated when, for instance, a verdict of guilty concerning this individual has entered into force or the mayor violated the requirements on not combining his or her activity with other work (activity), as established by the law on local self-government.

The powers of a mayor may also be terminated early in the event that he/she violated the Constitution or laws of Ukraine, the citizens’ rights and freedoms, or failed to exercise his/her delegated powers.

51. The Rapporteurs think that these conditions are too vague and could represent a basis for abuses. These conditions should be carefully defined. Judicial control should be generally ascertained by independent courts.

9. The judicial protection of local self-government

52. The Rapporteurs were informed that a reform of the judicial system is developing in Ukraine. In this framework, they wish to remark that Article 11 of the ECLSG must always be respected so that the right of local authorities to judicial remedy is permanently secured in order to ensure the free exercise of their powers.

10. The electoral process and the access to media

53. The Rapporteurs were informed that a draft law on the electoral system at local level passed the first reading in the Parliament and it is ready for further steps. They are of the opinion that the choice of the electoral system is a political one. They simply recommend to carefully considering any possible reform in this field by taking into account all advantages and disadvantages of the solutions proposed and this in order to avoid democratic deficit. The association representing local and regional authorities should be duly consulted in this respect.

54. The Rapporteurs were informed by the Association of Ukrainian cities that the access of locally elected representatives to media is not properly ensured. This democratic gap should be quickly corrected. They think that the relevant Council of Europe authorities should be informed so that the future co-operation programmes in this field could take into account the local democracy dimension.

11. The consultation of local authorities’ associations by central authorities and the appointment of the Ukrainian delegation to the CLRAE

55. The Rapporteurs noted that in the last months, the Association of Ukrainian cities has not been regularly consulted by central authorities in relation to internal and international affairs related to the interests of local authorities.
The Rapporteurs should like to remark that on the basis of Article 4.6 of the ECLSG, “Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision making processes for all matters which concern them directly”.

56. In addition, bearing in mind Article 3 of the Congress’ Charter, adopted by the Committee of Ministers as an Appendix of the Statutory Resolution (2000) 1 on the CLRAE, the Rapporteurs wish to remark that “Representatives and Substitutes to the CLRAE shall be appointed by an official procedure specific to each member State. In particular, it shall provide for consultation in each member State of the relevant associations and/or institutional bodies (…).

57. Taking into account the letter addressed from Mr M. Pittsyk, Executive Vice-President of the Association of Ukrainian cities to the CLRAE President (see Appendix 4), the Rapporteurs hope that their report will represent an opportunity to consolidate the co-operation between the Association and the Ukrainian Delegation to the CLRAE towards the concrete development of local and regional democracy in Ukraine and the full respect of the principles of the European Charter of Local Self-Government.

APPENDIX 1

Programmes of the Rapporteurs’ official visits to Ukraine

First visit: Kyiv and Cherkassy, 17-21 July 2001
Second visit, Kyiv, 3-4 September 2001

APPENDIX 2

Development and implementation of the legislation on issues related to local self-government in Ukraine in the context of the CLRAE Recommendation 48 (1998)

(Document provided in English by the Foundation for Local Self-Governement of Ukraine)

The footstool of local self –government bodies in Ukraine is made up by the following working laws of Ukraine :
“On local self-government in Ukraine” (1997);
“On local state administrations” (1999);
“On the capital of Ukraine-Hero City of Kyiv”(1999);
“On elections of deputies for local councils and village, settlement and city mayors”(1998);
“On the all-Ukrainian and local referendums”(1991);
“On the state-legal experiment of development of self-government in the city of Irpen, villages Bucha, Vorzel, Gostomel, Kotsyubinske of Kyiv region”(2001)

Though, it’s worth mention, that the existence of peculiar deficient in the national legislation on issues of local self-government is one of the most acute problems, connected with activity of self-government bodies in Ukraine. At the same time, certain positive developments, regarding the elaboration and implementation of such legislation.

In the period of February, 2001 Verkhovna Rada (Parliament of Ukraine) adopted the following pieces of legislation:

Law of Ukraine “On status of deputies of municipal councils” with President’s proposals considered

Draft for law of Ukraine “On the public service in local self-government bodies”

Law of Ukraine “On population self-organization bodies” – with President’s proposal’s considered

Ukrainian Budget Codex

Law of Ukraine “On minimum social standards”

The plan of preparations to examining of law drafts of the profile Verkhovna Rada Ukraine Committee on issues of local self-government provides introducing a motion for Verkhovna Rada of Ukraine examination in the second half of 2001 is as follows:

Law of Ukraine “On ensuring the requirement meeting regarding incompatibility of local self-government officials’ positions and those of local executive bodies” with President’s proposals considered;

Draft of the Law of Ukraine “On the referendum in the Autonomous republic of Crimea, local referendums and other forms of territorial community’s direct will-expression”-proposals to second reading;

Draft of the Law of Ukraine “On amendments to the Law “On local state administrations””;

Draft of the law of Ukraine “On amendments to the Law of Ukraine “On local self-government in Ukraine””;

Draft of the Law of Ukraine “On the state support and development program for local self government”;

Draft of the Law of Ukraine “On delegating powers of executive bodies and bodies of local self-government”;

Draft of the Law of Ukraine: “On amendments to the Law of Ukraine “On elections of deputies of local councils and village, settlement and city mayors”;

Draft of the Concept for the reform of local self-government;

Draft of the Code of Laws on local self-government in Ukraine.

Draft of the Law of Ukraine on administrative-territorial structure of Ukraine;

The revision work is in progress for law drafts:

Law of Ukraine “On local taxes and collections”;

Draft of the Law of Ukraine “ On the right for communal property”(new edition)

“On Hero-City of Sevatsopol”

“On the procedure of general citizen’s assembly by resident location”

“On the status of the village, settlement, city mayor”;

“On amendments to the Law of Ukraine “ On the basics of city-building”

In the period from 1998 through 2001 the Decrees of the President of Ukraine were adopted:

“On the top-priority proceedings on conduction of the administrative reform in Ukraine” from November 20, 1998.;

“On activity regarding the social-economic development of the Autonomous republic of Crimea and the city of Sevastopol from March 13, 2000;

“On Commission in issues of administrative structure” from August 8, 2000;

“On Provisions on Commission in issues of administrative structure from October 30, 2000;

“On changes within the Commission on issues of administrative-territorial structure” from November 3, 2000;

“On the Day of Local Self-Government” from November 25, 2000;

“On the National Council on accordance of the national and regional bodies of local self-government” from December 13, 2000;

“On formation of local militia” from January 22, 2001;

“On provisions on National Council on accordance of the national and regional self-government bodies’ activity” from January 25, 2001;

The President of Ukraine also signed following documents:

On October 19, 2000 the Instruction of the President of Ukraine “On ensuring the complex development of small cities of Ukraine”.

Letter of the President of Ukraine to Heads for Council of Ministers of the Autonomous Republic of Crimea, regional, Sevastopol City State Administrations regarding the impossibility for heads of local bodies of authorities of local executive bodies to combine their service activity with posuitions of the village, settlement, city mayor, secretary of the village, settlement, city council, head and the deputy head of the district and regional council and using powers as to prevention of such cases from December 12, 2000.

The Office of the President of Ukraine is working on the draft of the Presidential Decree “ On further development of local self-government”.

APPENDIX 3

ORDER OF THE PRESIDENT OF UKRAINE about state support of the local Self-governing development in Ukraine aiming at the further development of local self-government in Ukraine as a particularly important factor of public society strengthening, its state support, improvement of conditions for independent decision of local problems, I ORDER:

To define that the development of local self-government has the priority right now over the other directions of the state policy in Ukraine.

To affirm the Program of state support of local self-government development (further – the Program), which was prepared by the Cabinet of Ministers of Ukraine together with the Foundation for local self-governing support, different associations and other unions of local autonomous bodies (the appendix is provided).

From the representatives of Ukrainian Verkhovna Rada, the Ukrainian President’s Administration, the Cabinet of Ministers of Ukraine, the local executive and autonomous bodies, and prominent scientists to form the working group on preparation of propositions about the self-government development.

To determine that the main tasks of the above-mentioned group are:

Analyses of the problematic questions of the development of the local self-government in Ukraine, preparation and prepositions as to their solution;

Complex preparation and elaboration of the law projects on the improvement of local self-government in Ukraine, especially on the specification of the functions, powers and responsibilities of the local autonomous and executive bodies, determination of the law status of the municipal property, common property of the territorial groups and also on the questions of owning, using and ordering the lands and natural resources of local importance;

To join foreign specialists to the process of preparation and elaboration of the law projects on the improvement of the basis of the local self-government in Ukraine;

To study the reasons of the problematic situations in some Ukrainian regions in relationship between the local autonomous and executive bodies, to make preposition as to the prevention of the such situations and improvement of the interact between the local autonomous and state power bodies;

To prepare and make propositions as to strengthening the state control over the fulfilment of the legislative acts about the local self-government by the local autonomous and state power bodies, juridical persons and the citizens;

To analyse the realization by Ukraine of the international obligations as to the local self-government development, to make propositions as to their absolute fulfilment, to organize a vivid system of informing the corresponding structures of the European Council and international organizations about the Ukraine fulfilling the mentioned obligations.

4. To confirm the personnel of the working group on the preparation of the propositions as to the development of the local self-government (the appendix is provided).

5.For the Cabinet of Ministers of Ukraine:

To keep in mind the expenses on the Program realization in the law projects on the State Budget of Ukraine;

To provide the control over the realization of the Program.

President of Ukraine L. Kuchma

Kyiv

August 30, 2001

#749/2001

CONFIRMED

By the President’s of Ukraine Order

From August 30, 2001 #749/2001

CONFIRMED

By the President’s of Ukraine Order

From August 30, 2001 #749/2001

PROGRAM

Of the state support development

Of the local self-government in Ukraine

The Program of the state support development of the local self-government in Ukraine (further the Program) was elaborated in accordance with the regulations of the Constitution of Ukraine and European charter of the local self-government and is aimed at the provision of the further development of the local self-government in Ukraine and strengthening of its organizational, juridical, financial and informative basis.

The aim of the program is :

- To strengthen the public society basis and to develop the democracy;
- To improve the juridical basis of the local self-government;
- To strengthen the material-financial basis of the local self-government;
- To improve the conditions for providing the people’s activities and social security, to offer proper social services ;
- To develop the people’s initiative in solving problems of local importance.

The main tasks of the program are:

- To support formation of the economically sufficient territorial groups;
- To improve the mechanisms of governing the juridical objects of municipal property and common property of territorial groups;
- To provide the scientific-methodological support for the local autonomous bodies;
- To improve the professional level of the local self-governing bodies, to provide training the personnel for the mentioned bodies;
- To instruct on solving the problems of local self-government in Ukraine;
- To improve the interact of associations and other local autonomous bodies with the executive bodies;
- To hold scientific researches on the problems of local self-government;
- To provide adequate conditions for territorial groups and autonomous bodies’ realization of the rights and powers determined by the Constitution of Ukraine;
- To join public organizations, scientific establishments, scientists, city and village inhabitants to the process of development the local self-government in Ukraine;
- To study, analyse, generalize and implement the better native and international experience in the sphere of local self-government development;
- To prepare propositions and recommendations as to the development of local self-development in Ukraine and to solve the present-day problems in the mentioned area.

Financing on the realization of the Program is carried out by the State Budget of Ukraine and also the funds of the local budgets and other sources, not prohibited by the Legislation of Ukraine.

The Program’s main activities are:

Analyses of the current legislation, elaboration of the program of legislative support of the local self-government , aimed at strengthening its organizational, lawful, financial and economic basis.

Cabinet of Ministers of Ukraine together with the Foundation for local self-government support, associations and other unions of local self-government bodies, 2001-2002

Elaboration of methodological recommendations to support the improvement of the local self-government structure, the effective governing of the budget processes, municipal property, local economy in general, complex social-economic development of cities, the adequate interact between the state power and the local autonomous bodies.

Cabinet of Ministers of Ukraine together with the Foundation for local self-government support, associations and other unions of local autonomous bodies, 2001-2002

To make propositions as to fulfilment of the activities aimed at the further implementation in Ukraine of the administrative reform on the local level, realization of the state regional policy, strengthening the economic basis of the territorial groups, improvement in providing the administrative and public services.

Cabinet of Ministers of Ukraine, State commission on administrative reform implementation in Ukraine together with the Association of Cities of Ukraine, Ukrainian association of local and regional powers, Association of village and city councils of Ukraine , 2001-2002

To solve the question of forming the foundation for perspective ideas as to the local and regional development support.

Foundation for local self-government support in Ukraine together with the Association of Cities of Ukraine, Municipal Management Academy, Ukrainian municipal academy, Union of local and regional leaders of Ukraine, 2001-2002

To make propositions as to forming organizational and lawful basis for elaboration and implementation of projects on holding experiments concerning local self-government development.

Cabinet of Ministers of Ukraine together with National scientific academy of Ukraine, Foundation for local self-government support in Ukraine and Association of Cities of Ukraine, 2001-2002

To make propositions on the juridical associations’ status and other unions of local autonomous bodies regulation.

Cabinet of Ministers of Ukraine together with Association of Cities of Ukraine, 2001-2002

To elaborate the program for manufacturing in Ukraine the technique and equipment for municipal enterprises.

Cabinet of Ministers of Ukraine, 2002

To solve the problem about founding the expositional center of territorial groups’ achievements, and also the informative-analytical agency “City and Region”.

Cabinet of Ministers of Ukraine together with Association of Cities of Ukraine, September-October, 2002

To organize a permanent exhibition “Technologies of municipal economy”, where all the modern techniques of municipal services should be exposed – of native production in the first rank.

Cabinet of Ministers of Ukraine together with Association of Cities of Ukraine, 2002

To organize:
Annual observance of cities, towns and villages concerning their welfare, public order, etc.;

Cabinet of Ministers of Ukraine together with Association of Cities of Ukraine, Starts in 2002

To hold an all-Ukrainian competition in the following nominations: “The Best Village Head”, “The Best Town Mayor”, “The Best City Mayor”.

Cabinet of Ministers of Ukraine together with Municipal Management Academy and Ukrainian municipal club, Starts in 2002

To organize the cycle of fundamental researches on support of the local self-government development and the competition for the best research paper on the problems of local self-government.

Cabinet of Ministers of Ukraine together with Ukrainian municipal academy, Municipal management academy, Ukrainian Academy of state management at the President of Ukraine, 2001-2004

To carry out scientific researches on the problems of financial-economic basis of local self-government implementation, especially on :

The discrimination of the areas of responsibility and competence of state power bodies and local autonomous bodies in providing state and public services;

Strengthening the local self-government income basis;

Elaboration of the state minimal social standards system;

Emphasizing the role of the local taxes in forming the local self-government income budgets;

Expand of local autonomous bodies’ access to the loan capital market;

Formation and usage of territorial groups’ property objects;

State control over the financial-economic activity of local autonomous bodies.

Cabinet of Ministers of Ukraine, 2001-2004

To organize the preparation of scientific recommendations as to the:

Usage of juridical and other normative-lawful acts on self-government ;

Elaboration of the territorial groups’ status and also the documents regulating population’s self-organization.

Cabinet of Ministers of Ukraine together with the National scientific academy of Ukraine, Foundation for local self-government support in Ukraine, associations and other local autonomous bodies, 2001-2004

14.To build the system of personnel training and requalification for the local autonomous bodies.

Cabinet of Ministers of Ukraine together with the Foundation for local self-government support in Ukraine, 2001-2002

15.To include disciplines about the basis of the local self-government and organization of the municipal economy into the academic programs of educational establishments and to support the corresponding literature preparation and publication.

Ministry of Ukrainian Education together with Ukrainian Academy of state management at the President of Ukraine, Municipal management academy, During 2002

16.To provide the publishing of the monograph “Local Self-government in Ukraine: Conditions and Perspectives for the Development”.

Ukrainian municipal academy, 2002

17.To create the exposition “Local Self-government in Ukraine: the Ways of Development” and to provide the publication of the corresponding almanac.

Foundation for local self-government support in Ukraine, Ukrainian municipal academy, August, 2002

18.To support in holding the annual all-Ukrainian municipal hearings.

Foundation for local self-government support in Ukraine together with Association of Cities of Ukraine, associations and other unions of local autonomous bodies, 2002-2004

19.To elaborate and realize the project “Youth’s Participation in the Development of Local Self-government in Ukraine”.

Association of Cities of Ukraine, Municipal Management Academy, Union of local and regional leaders in power of Ukraine, Association of democratic development and self-government of Ukraine, 2002-2004

20. To provide:

publishing series of popular brochures about the bases of the local self-government, municipal economy organization, village, town and city dwellers’ rights and duties;

Municipal Management Academy, Foundation for local self-government support in Ukraine, Association of Cities of Ukraine, Union of local and regional leaders in power of Ukraine, Since March, 2002

Publication of materials on the Ukrainian and foreign experience concerning problems of local self-government.

Foundation for local self-government support in Ukraine together with Ukrainian Academy of state management at the President of Ukraine, Municipal Management Academy, Ukrainian municipal academy, associations and other unions of local autonomous bodies, Since March, 2002

21.To get the Ukrainian municipal encyclopedia ready.

Foundation for local self-government support in Ukraine, Municipal Management Academy, Ukrainian municipal academy, Ukrainian Academy of state management at the President of Ukraine, During 2002

22.To provide forming the informative-supply system for the local autonomous bodies and to support it in functioning.

Cabinet of Ministers of Ukraine together with Foundation for local self-government support in Ukraine, Association of Cities of Ukraine, Ukrainian association of local and regional powers, 2001-2004

23.To solve the problem concerning forming information resource of local autonomous bodies in the international information network Internet.

Cabinet of Ministers of Ukraine together with Association of Cities of Ukraine, associations and other local autonomous bodies, 2002

24.To study questions concerning :

founding the all-national municipal TV channel;

Cabinet of Ministers of Ukraine, National Council of Ukraine on the problems of TV and radio, 2002

publishment the all-national municipal informative edition.

Cabinet of Ministers of Ukraine together with Foundation for local self-government support in Ukraine, Association of Cities of Ukraine, 2002

25.To get the TV cycle on Ukrainian cities and regions ready and to make sure it is broadcasted on all the public channels.

Cabinet of Ministers of Ukraine, Since 2002

26.To support in holding topical meetings, scientific-practical conferences, discussions, press-conferences on history, world and native practice of organizing and developing local self-government.

Cabinet of Ministers of Ukraine together with Foundation for local self-government support in Ukraine, Ukrainian Academy of state management an the President of Ukraine, Municipal Management Academy, Association of Cities of Ukraine, Union of local and regional leaders in power in Ukraine, Ukrainian association of local and regional powers, Association of village, town and city councils of Ukraine, Ukrainian municipal club, 2002-2006

27.To solve the question on improvement of training and requalification of local autonomous bodies position-holders.

Cabinet of Ministers of Ukraine together with Ukrainian Academy of state management at the President of Ukraine, Municipal Management Academy, 2002

28. To support collaboration of Ukrainian local autonomous bodies, their associations and other unions with foreign autonomous bodies, their associations and corresponding international organizations and foundations on the problem of local self-government development.

Cabinet of Ministers of Ukraine together with Foundation for local self-government support in Ukraine, 2002-2004

Head of Administration of

The President of Ukraine V.Lytvyn

CONFIRMED

By the President’s of Ukraine Order

From August 30, 2001, #749/2001

Of the working group on the preparation of propositions

concerning local self-government development

Head of the President’s of Ukraine Administration V. LYTVYN

APPENDIX 4

Letter sent from Mr Myroslav Pittsyk, Executive Vice-President of the Association of Ukrainian cities to the CLRAE President after the Rapporteurs’ official visits

# 4-78

September 10, 2001

To Mr. Llibert Cuatrecasas

President of the Congress of

Local and Regional Authorities of Europe

Dear Mr. Cuatrecasas,

On behalf of the Association of Ukrainian Cities – voluntary union of 350 Ukrainian municipalities representing the interests of more than 70% of the urban population of Ukraine – I’m honored to express our sincere gratitude to the CLRAE Reporters Group working in Ukraine on the report “On the situation in the field of local and regional democracy in Ukraine” preparation. Their regular visits to Ukraine, thorough work and productive meetings provided the Association with advisory and consultative assistance and stimulated some state officials to make some steps forward towards strengthening of local democracy in Ukraine that resulted to the President of Ukraine signing the Decree “On the State Support of Local Self-government Development in Ukraine”, adoption of the Program of the state support of local self-government development in Ukraine, meeting of the Prime-Minister of Ukraine with the members of the Association Board and the Prime-Minister signing the relevant orders on local self-government support.

Always glad to welcome you in Ukraine,

My warmest regards,

Myroslav Pittsyk,

Executive Vice-President of the Association of Ukrainian Cities

² CLRAE Document CG/BUR (7) 95 dated 21 February 2001. Rapporteurs: Mr L. Roppe (Belgium, L) and Mr L. Kieres (Poland, R).

³ CLRAE documents CG/INST (7) 21 and CG/INST (8) 2 on the appeal made to the Institutional Committee by Mr Vasyl Tretetskyj, former Mayor of Myrhorod

⁴ “Changes in local authorities boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.

⁵ To this list should be added the new presidential Budget Code which also refers to local and regional finances (see after) and a Presidential decree of 25.05.01 on the “Approval of the concept of state regional policy in the Ukraine” which also refers to local self-government and territorial organisation.

⁶ CLRAE Document CG/INST (7) 21

⁷ CLRAE Document CG/INST (8) 2