Strasbourg, 30 November 1995
Monitoring Report 1995 CG Bur (2) 48
Report on the legal situation concerning local self-government in Ukraine
Rapporteur: Mr Claude HAEGI (Suisse)
In the course of my three visits to Ukraine, it has become clear that the principle of local self-government has increasingly been taken into consideration in the drafting of the country's constitutional and legislative texts. Furthermore, as it had proved so difficult to initiate dialogue during our first two visits, it was all the more gratifying to experience the atmosphere of openness and greater understanding of our proposals at the talks we held during our visit in July 1995.
Our work in Ukraine was made considerably easier thanks to the help we received from Ambassador Olexandre SLIPTCHENKO, Ukraine's Permanent Representative to the UN and other international organisations based in Geneva, and from Mr Yaroslav KOVAL, the First Secretary of Ukraine's Mission in Geneva, who made sure that everything went off smoothly and that we were able to make the necessary contacts at presidential, governmental, parliamentary, legislative and voluntary sector levels.
During our visit in July, we were able to see that the repeated gestures of the Council of Europe bodies had borne fruit and that decisions had been taken which showed signs of greater recognition of local authorities. The situation is far from perfect but significant improvements have been made.
Following Ukraine's declaration of independence, the country was denied its traditional sources of support, in particular from its former Soviet partners. This led to increased destabilisation in the country and a renewal of the debate on a possible return to Russia.
Among the major political problems facing Ukraine is, of course, the question of the Crimea. As Dr Heinrich A. HOFFSCHULTE so rightly points out in his report, we must ensure that we keep a close watch on the situation resulting from the solution chosen by the Constitutional Agreement of 8 June 1995 which affirmed that the Autonomous Republic of the Crimea was part of Ukraine, but which at the same time granted it special regional status.
If one wished to sum up the current situation in Europe, it would be as follows: economically, the country has been bled dry despite its vast resources; environmentally, several regions are in an extremely sorry state; politically, the municipalities are beginning to take shape and the regions are still at the embryonic stage since central government is fearful that rapid expansion of the regions would compromise the unity of the state. On this latter point, we stressed that, on the contrary, regions were a tremendous potential force for economic development.
When we were there, we noted a certain degree of weariness on the part of those who are resolutely striving for true democracy and who are unable to understand why Ukraine was still being kept out of the Council of Europe in spite of its efforts. These people are fully aware that the European Convention on Human Rights is not respected in its entirety, but they stress how far they have progressed along the way. They believed that by welcoming Ukraine into our Council, we would be improving the conditions for continuing the process towards democracy which is already under way.
Although there has been a considerable lack of understanding of institutional problems and resistance from some political quarters, things are different today and the proposals we were able to put forward with regard in particular to legal texts have been taken on board to a significant extent.
For all these reasons, I cannot but rejoice at Ukraine's admission to the Council of Europe. There was a risk that a new postponement on Ukraine's membership of the Organisation would lead to discouragement which could have resulted internally in a reappraisal of what has already been achieved on the institutional level, and an attempt to seek out new alliances which could well undermine the goal of achieving independence which is what the majority of the country's population is looking for.
Dr Heinrich A Hoffschulte
Oberkreisdirektor des Kreises Steinfurt
Kreishaus, Tecklenburger Straße 10
D-48565 Steinfurt Strasbourg/Steinfurt, 31 July 1995
Report on the legal situation concerning local self-government in Ukraine
(to the Congress of Local and Regional Authorities of Europe (CLRAE))
The former Soviet Socialist Republic of Ukraine declared itself independent on 24 August 1991, following the collapse of the Soviet Union. As part of its endeavours to set up thoroughly democratic structures governed by the rule of law the Ukraine, a nation of some 52 million people, has since shown keen interest in membership of the Council of Europe and has been seeking to demonstrate that it meets the Council of Europe's conventions and legal standards, in particular the European Convention on Human Rights and the Charter of Local Self-Government. With active support from the Ukrainian Government a Ukrainian Center for Human Rights (UCHR) has been established to oversee observance of human rights. At the same time work has begun on amending the constitution and introducing new local-government legislation so as to lay the foundations for democratic local self-government based on the rule of law.
In 1993-94 the Council of Europe member states replaced the Standing Conference of Local and Regional Authorities of Europe by a Congress of Local and Regional Authorities of Europe (CLRAE), comprising a Chamber of Local Authorities and a Chamber of Regions. In view of the increasing number of central and eastern European countries expressing an interest in Council of Europe membership, the CLRAE has begun - as a preliminary to admission - drawing up reports on the position regarding local democracy in the countries concerned. In spring 1995 the Bureau of the CLRAE asked the President of the Chamber of Regions, Claude Haegi (who is also one of the Congress vice-presidents), to report on the situation concerning local democracy in Ukraine, whose admission the Council of Europe may have occasion to discuss in the near future.
In that connection a visit was made to Kiev from 19 to 22 July 1995 by Claude Haegi (representing the Council of Europe), Carlos Grau Tanner (representing the CLRAE secretariat) and myself. I was asked to produce the report on local self-government in the Ukrainian Constitution and Ukrainian law.
This was the third visit to Ukraine by a delegation of this kind. The first visit (20 to 24 November 1994) was mainly to enquire into the situation in the area around the Chernobyl nuclear reactor (80 km north of the capital, Kiev), make contact with the Association of Democratic Municipal Councils of Ukraine and the Ukrainian Association of Local and Regional Authorities, have talks with the President's head of internal affairs about internal reform, and have talks with the mayor of Kiev, Mr Kossakivsky.
That visit was followed by a conference on local government in Ukraine, to compare development (16 and 17 March 1995) of local and regional self-government in Ukraine with the position in Council of Europe countries like France, Austria, the United Kingdom and Germany. The conference provided an opportunity for intensive talks with representatives of various government ministries, the Presidential Office, the Ukrainian Parliament and local government associations. It was chaired by Claude Haegi and covered relations between central and local government, supervision of local government, the status of local elected representatives, involvement of local authorities in national decision-making, and the role of the administrative courts in disputes between central government and local government. At the conference it was evident that there was great uncertainty about the proposed constitutional and legal provisions on local self-government in Ukraine. In addition, parliament was then under great pressure to take a decision on the future status of the Crimea. While the conference was engaged in wide-ranging discussion of local and regional self-government and regionalisation (on, for example, Spanish, French, Belgian, Italian or German lines), the Ukrainian Parliament decided, on the afternoon of 17 March, on a proposal from the President of the Republic, to annul the Crimea's 1991 constitution, under which it had had autonomous status (see below, section IV).
The Ukraine's present administrative structure
At present Ukraine is divided into 24 regions ("oblasti"), the "Autonomous Administrative Territory" of the Crimea and the two urban regions of Kiev and Sebastopol. Below that level there are 475 (state) administrative districts ("rayony") with an average population of 110,000 (the total population being around 52 million). The next level down comprises 427 towns/cities, two of which, Kiev and Sebastopol, are, as already stated, also regions (Kiev as the capital with a population of 2 million and Sebastopol on account of its military significance and despite being much smaller than the second-largest city in Ukraine, Kharkov, which has a population of 1.6 million). Below that level Ukraine has 771 smaller towns and 9,748 villages with small administrative authorities of their own.
These details are based on information received during the visit. A book published by the Institute of Local Administration and Public Service, "Basic information on local government in the Ukraine" (Pavlo Sheremeta, Lvov, 1994) divides up the local and intermediate tiers of administration at 1 January 1992 somewhat differently, as follows:
Number of local governments and middle-tier governments (1 January 1992)
Small town self-government
City of oblast and republic subordination self-government
Other city self-government
District in city self-government
Autonomous republic self-government
I. Constitutional status (provisional) and local government legislation
1. The 1978 Brezhnev Constitution partly still in force
Ukraine declared independence on 24 August 1991. A law of 3 July 1993 on national and municipal referenda in Ukraine had already made preparatory arrangements for a referendum. On 1 December 1991 the declaration of independence received overwhelming democratic approval. Provisionally Ukraine adopted the Brezhnev Constitution of 20 April 1978 (subsequently much amended). That constitution is partly still in force and established a soviet political system in which the Supreme Soviet (parliament) was the highest authority. The head of state, as head of national government, was the counterweight to it, becoming a driving force for reform and thereby coming into increasing conflict with the Supreme Soviet. Under the old constitution the President did not have his present position of strength. The result was mutual blocking of moves to push through reforms and drafts for a new constitution.
The uncertainty was very evident when we visited in March 1995. When the Council of Europe delegation enquired what legislative proposals on a future constitution and local self-government it should go by, the responses from parliament itself were generally contradictory. References to a particular draft met with objections from other participants that it had not yet been officially approved or that the President favoured some other set of proposals or that there were various other sets of proposals ("nine at least") before parliament. This probably reflected a tendency that has been seen in Russia in recent years: it is not uncommon for reforms or attempts at reform to be thwarted by the procedure - formally quite unobjectionable - of laying counter-proposals before parliament. The fragmentation of the political scene is evidenced by the existence of some 38 to 40 political parties.
2. The Constitutional Agreement ("mini-constitution") of 6-8 June 1995
Attempts to bring about genuine political, social and economic reform in Ukraine resulted in a struggle, in the first half of 1995, over extension of presidential powers. In late 1994 President Kuchma put forward a programme of reforms which international institutions such as the World Bank and the International Monetary Fund considered radical and which they welcomed. As in Russia and Poland, the prominent issue was whether a president with constitutionally strengthened powers could push through reforms with - or possibly even despite opposition from - a parliament dominated by conservative communist elements.
In 1994, then, President Kuchma put forward a law dealing with central government powers and local self-government in Ukraine. He regards the law as amending the constitution and therefore as having constitutional force. Even though, formally speaking, none of the clauses in the 1978 constitution was repealed, there was provision that if the two instruments conflicted, the constitutional law took precedence. For that reason the law is referred to in Ukraine as a "mini-constitution", aimed at clearing the ground for a definitive new constitution in 1996.
The deliberately constitution-amending force of the law resulted in a bitter conflict with parliament. Parliament initially approved the law by 219 votes to 104 (with 17 abstentions). However the Speaker, Alexander Moros, at first refused to submit the law for presidential signature. On six occasions parliament voted on orders to have the law go through but Moros' socialists, in alliance with the Ukrainian Communist Party, withheld approval. Under the constitution in force, parliament (the former Supreme Soviet, now the Verkhovna Rada or Supreme Council) has 450 members. But since, in the first free elections, over 40 seats were not filled because the turnout was too low, the Supreme Council currently comprises 405 seats. Under the old constitution a constitutional amendment requires a two-thirds majority. The anti-reformists invoked that rule and argued that the constitutional law had not obtained the required majority.
President Kuchma insisted on speedy promulgation and threatened, if parliament did not give way, to put the law to a referendum on 28 June 1995. A decree on the referendum was published shortly thereafter. The Supreme Council declared Kuchma's decree unconstitutional and illegal, which did not deter the President from reaffirming that in view of the serious political crisis the people itself must be allowed to decide.
Subsequent negotiations produced a so-called Constitutional Agreement, which states that, pending the adoption of a new constitution, all organs of state in Ukraine are to be governed by the "mini-constitution" and not the old constitution dating from Soviet times. The communists in parliament objected that the agreement was unconstitutional. A further vote produced a surprise clear two-thirds majority with 240 of the 349 members of parliament present voting for the agreement. There were 81 votes against and 8 abstentions. On 8 June 1995 the agreement was accordingly signed by Moros and the President and thereby brought into force.
It contains a proviso to the effect that the parties to it consider it necessary to meet the essential preconditions for speedy completion of the constitutional process in Ukraine and for approval of a new Ukrainian constitution no later than one year from the date of signature of the Constitutional Agreement (see section 3 of the agreement). How long the Constitutional Agreement runs if no constitution emerges by that date is unspecified.
The Constitutional Agreement further states that pending approval of a new Ukrainian constitution the parties to the agreement undertake to comply strictly with its provisions and to act in full observance of it. Before approval of the new constitution the parties undertake to put to national referendum or popular consultation only such questions concerning the new constitution as the parties have agreed.
In the agreement the parties further state their recognition that failure to apply its provisions would produce social chaos, economic collapse and danger of civil war and would place the sovereign democratic existence of Ukraine in jeopardy.
There are still those, particularly among the communists, who consider the agreement unconstitutional. A communist member of the parliament's Constitutional Committee has agreed that 200 of the (prescribed) 450 members of parliament have not yet signed the agreement and said that, as far as the communists are concerned, the future of the agreement is still in the balance and the Communist Party will be putting forward an alternative draft constitution. Here the communists admittedly invoke the old Soviet constitution, which lacked, and continues to lack, any serious democratic legitimacy and therefore cannot be adduced as a basis for a new, just constitution. This nonetheless points up a certain weakness in the Constitutional Agreement and one which the President and the Speaker sought to remedy, when they signed the agreement on 8 June 1995 and brought it into force: when doing so they left it open for signature by members of parliament in the hope that it would be signed by the formally required two-thirds majority of the 405 actual members of parliament or even a two-thirds majority of the legally provided-for 450 members of parliament (follow-up elections in 1995 will bring parliament up to full strength). The communists have made it known that, after the follow-up elections (due in December 1995), they intend raising the legality question again. That would leave the President with no option but to announce a popular consultation or referendum once more.
As far as the future is concerned the crucial factor is ultimately whether the constitutional provisions on local self-government, which we examine in detail below, can be incorporated in a definitive Ukrainian constitution applying from 1996 on.
II. Local-government legislation below the constitutional level
Anyone meeting local-government or local-government association representatives in Kiev is taken to see a monument commemorating the adoption of the Magdeburg Laws: in the 12th and 13th centuries migration to the cities was synonymous with freedom, and burghers and other classes in the cities sought to free themselves from the dominion of a lord (and the obligation to pay him taxes) through consolidation of local autonomy.
Kiev, in common with many other cities under Slav princes, adopted the Magdeburg Laws around the mid-14th century as a municipal constitution. Those laws influenced the city's development until 1654, when the Cossack leader, Bohdan Khmelnytsky, and his troops submitted to the authority of the Muscorite tsar. The Russians celebrate that date in terms of Russian reunification with the Ukraine. There followed a lengthy war with Poland, which the tsar protracted with an attack on Sweden (1656) in the course of which he conquered territory in Livonia (Tartu and Narva). In 1661, under the Peace of Kardis, this territory reverted to Sweden. Understandably Ukrainians and Russians view the significance of 1654 very differently: for Kiev and other cities it spelt the end of autonomy under the Lübeck and Magdeburg Laws. In 1992, when Russia and the newly independent Ukraine came to an agreement on the Soviet (military) inheritance, President Yeltsin felt compelled to comment that this was a happy repetition of the 1654 agreement. His Ukrainian interlocutors saw it more as an end to and release from 300 years of subjugation to Russia (in 1954 a reunification monument had been erected to commemorate the three hundredth anniversary of Bohdan's submission decision).
2. The main laws dealing with public administration and local self-government are:
- the law of 26 March 1992 on popularly elected councils and local and regional self-government;
- the law of 3 February 1994 on the establishment of local administrative bodies;
- the law of 4 February 1994 on the status of members of popularly elected local councils;
- the law on popular election of municipal councils (right to vote and eligibility).
These - though scarcely compatible with the still valid Soviet constitution of 1978 - are the laws that have governed the inchoate transition to democratic local self-government. In addition, there has hitherto been a hierarchy of central government representation at local level (the so-called "President's representatives"). The President's representatives were in charge of central administration at local authority level. The law on the establishment of local administrative bodies of 3 February 1994 abolished the President's representatives with effect from 26 June 1994. So a start has been made on transferring central administrative responsibilities to local authorities, though there are also still central government "agencies" - that is state authorities with outlying services in the regions, administrative districts and towns.
In addition there are two bills before parliament which deal with the cities and towns:
a. a draft Ukrainian law of December 1994 concerning popularly-elected local soviets, and
b. draft legislation on the capital, Kiev, and the Kiev region.
The Council of Europe already has copies of the December 1994 bill on popularly-elected local soviets. This still refers at all levels to soviets, a concept which is really to be regarded as having been superseded, in the Constitutional Agreement of 8 June 1995, by that of "rada" (ie councils and councillors).
For information about the December 1994 bill the reader is referred to the report of 5 December 1994 of the Council of Europe's consultants (Mr Delcamp and Mr de Bruycker). The consultants' finding was that the bill still fell considerably short of the requirements laid down in the 1985 European Charter of Local Self-Government. They criticise the failure to make a clean break with the characteristic structure of the previous system, which was based on a collective hierarchy of state power.
This failure is particularly evident from the fact that the bill continues to regard local administrative bodies as decentralised components of central authority and that there is no clear distinction between the role of local self-governing entities on the one hand and that of central government bodies on the other (Article 1 of the bill refers to the popularly-elected local soviets in the regions, districts, cities, urban districts, towns and villages as "organs of state authority and self-government"). What the bill still lacks is a forthright statement of the principle of local self-government and local autonomy, distinguishing clearly between this and a policy of progressively decentralising state responsibilities to the reinforced local or regional. The bill was viewed with suspicion by the new Ukrainian associations of local authorities precisely because no such distinction was made. They feared that state powers of supervision and review would go beyond the (by common consent) necessary powers of legal review and lead to constant interference in specific areas of local self-administration.
The bill is, however, superseded by the extremely detailed section VII of the Constitutional Agreement (Article 46 and ff.) dealing with local government. It remains to be seen when and how its provisions will be fitted into a constitution.
Under legislation (b) two cities are to be given special status: the capital Kiev, and - on account of its special military importance to the Russian Black Sea fleet - Sebastopol.
According to the mayor of Kiev, Mr Kossakivsky, the draft legislation on Kiev is now ready and should be given a first reading in September 1995. He states that there is not to be any major differentiation from other cities and towns except as regards finance and relations with its region. Kiev, which has a population of 2 million is to be divided into 14 urban districts. The Kiev region, which likewise has around 2 million people, is to be divided into 27 districts ("oblasti"). The city is to have planning and building authority whereas in other cities and towns those responsibilities lie with the relevant state administrative department.
The proposed rules on property are of great importance. Mr Kossakivsky sees property reform as a lengthy process - previously everything was the property of the people and now ownership has to be transferred. Henceforth there is to be a distinction between state property and local-authority property, a distinction which is additional to the rules on private ownership. To a large extent, responsibilities and property regulation have been transferred to the cities. Kiev, for example, currently owns around 1,000 firms (!) as well as public buildings. The state has transferred responsibility to Kiev for the 44 buildings available to diplomatic delegations that do not have or build their own premises.
The city also owns and has responsibility for the subway, the gas supply system, arts facilities, theatres (there is one private theatre) and cinemas (these are let at the moment and the intention, apparently, is to sell them to private owners). Electricity supply remains a state responsibility.
Again according to Mr Kossakivsky, the plan is to transfer ownership of housing complexes, schools, hospitals, libraries and cinemas to the urban districts. The public authorities currently build around 20,000 new housing units in the capital annually, predominantly of the classic prefabricated type. The city retains responsibility for higher-education establishments and similar facilities.
The fiercest debate in the Verkhovna Rada will probably centre on the future property-ownership rules.
III. Local-government reform in the Constitutional Agreement of 6 and 8 June 1995
1. The de facto in force Constitutional Agreement between the Supreme Rada of Ukraine and the President of Ukraine on basic principles of the organisation and functioning of state power and local self-government in Ukraine pending the adoption of the new constitution of Ukraine (to quote the lengthy title in full) has (section VII) "local public executive authorities" and "local self-government" in Ukraine side by side. Under Article 46 the "local public executive authorities" in the regions ("oblasti"), the cities of Kiev and Sebastopol and districts ("rayony") (with the exception of urban districts but including districts of Kiev and Sebastopol) are state administrative services, though under chairmen who are popularly elected and appointed by the President to this specific state function.
"The President of Ukraine appoints individuals elected chairmen of regional, Kiev and Sebastopol urban and district Radas, heads of regional, Kiev and Sebastopol municipal, and district state administrations, respectively.
In exercising their functions, local public authorities are subordinated to public executive authorities of higher level.
Legal status and functions of regional, Kiev and Sebastopol municipal and district state administrations are specified by the present Law and Regulations to be approved by the President of Ukraine. The President of Ukraine may delegate to a state administration functions with regard to the management of state property located within the territory of the respective administrative-territorial unit.
Organisation and functioning of public executive authorities and local self-government authorities in the cities of Kiev and Sebastopol are specified by specific laws" (Article 46).
2. Thus state functions are largely delegated to regional, urban and district authorities which remain state authorities but which are now to be headed by a regionally or locally elected chairman. Instead of amalgamating them, the text maintains the distinction between the respective authorities and suggests an arrangement similar to that of "Organleihe" (organic borrowing) in German administrative law: the state uses - in this case after express appointment by the President of the Republic - the regionally or locally elected council chairman. This preserves supervisory functions which would be sacrificed if there were a full transfer of state functions to an autonomous local authority, when supervision would be reduced to review of lawfulness. This is clearly deliberate and perfectly compatible with the aim of decentralisation, despite the opportunities for intervention from above (which the present President no doubt sees in terms of being able to push through reforms). The Deputy Speaker of the Ukrainian Parliament ("Verkhovna Rada"), O Tkachenko, is admittedly critical of Article 46's "internal inconsistencies", which, he says, are not parliament's fault but due to the President's keeping the situation unclear.
3. It will be worth keeping an eye on developments here over the next few years, particularly in the context of the 1996 constitution. Whether the decentralisation trend produces greater local self-government or state responsibilities remain so, even if decentralised, will depend to a considerable extent on how successfully the locally and regionally elected council chairmen assert themselves. The question whether state responsibility persists in decentralised form or powers and responsibilities are transferred from the centre or region to the local authorities also has to be viewed from the standpoint of Articles 4 and 5 of the 1985 Charter, which require that responsibilities be left as far as possible to the local level so that proper account is taken of local circumstances.
4. The really revolutionary thing about the Constitutional Agreement is Article 47, in which, for the first time, the principle of local self-government, is recognised. Hitherto, any development of local self-government, whether in rural areas or in the cities, basically ran counter to the 1978 constitution, which was of the centralistic Soviet type.
Article 47 reads:
"Local self-government in Ukraine shall mean the right, guaranteed by the state, of territorial communities of citizens and of local self-government authorities elected by them to decide, at their discretion, all local matters within the limits of the Constitution and laws of Ukraine".
Gratifyingly, this goes even further than Article 3 (1) of the 1985 European Charter of Local Self-Government (which says that local self-government is the right and ability of local authorities to deal as they see fit, within the framework of the law, with a substantial proportion of public matters for the benefit of the local population) and is in keeping with the much more radical provision of Article 4 (2) of the Charter, under which local authorities are entitled to deal with all matters not excluded from their competence or assigned to another authority. The Article 47 concept of dealing with matters of local concern goes further even than this and comes close to giving total responsibility (of the kind granted in Article 28 of Germany's Basic Law).
5. Under Article 47 of the Constitutional Agreement the territorial framework of local government is made up of villages, towns and cities. Where cities are divided into urban districts Article 47, 2nd para., makes it clear that they are "an integral part of local self-government in cities" - that is, that they are not independent administrative units but subdivisions. It further states: "Matters relating to the organisation of administration in urban districts fall within the competence of municipal Radas".
6. The agreement designates the "territorial communities of citizens" residing in villages, towns and cities as the "primary subjects" of local self-government. The communities exercise their functions either direct or through bodies they elect (Article 47, 4th para.). The financial and economic basis of local self-government consists of the communal property and financial resources of villages, towns and cities, revenue from local budgets, and extra-budgetary inputs. There is a weakness in the agreement here as compared with the 1985 Charter, whose preamble stresses that municipalities should have tax revenue of their own for discharging their responsibilities and that where it is acknowledged that such revenue is insufficient it should be topped up through financial equalisation (Charter, section III (4)). Article 9 of the 1985 Charter extends this basic principle, stating that municipalities are entitled to financial resources commensurate with the responsibilities which the constitution and the law vest in them (1985 Charter, Article 9 (2)).
It is to be hoped that when the Constitutional Agreement is revised for purposes of producing a definite 1996 constitution, there will be further, more detailed provision in this connection.
7. Under Article 48 of the Constitutional Agreement, local self-government is to be exercised direct by the communities of citizens either through referenda or by "other means of citizens' participation in discussing and deciding matters which fall, under the law, within the competence of local self-government." This accords with section III (5) of the 1985 Charter, which requires that decisions about local matters, the raising of finance and the use of finance be taken by the local electorate or their elected representatives.
8. The local self-government authorities in villages, towns and cities are to be the village, town and city Radas (councils) elected, in accordance with the legislation of the Ukraine, by nationals of Ukraine residing within the territory of the particular administrative-territorial unit (Article 49).
Article 49 of the Constitutional Agreement lays down the following responsibilities of local self-government authorities:
- drafting, approving and executing the budgets of the administrative-territorial units in accordance with applicable legislation;
- establishing local taxes and charges prescribed by the law;
- managing communal property;
- organising and holding local referenda;
- promoting compliance with the Constitution and laws of Ukraine, decrees and orders of the President of Ukraine, and ordinances and instructions of the Government of Ukraine;
- discharging other functions prescribed by the applicable legislation.
This enumeration is exhaustive and therefore contradicts the principle of responsibility for all local matters (Article 47, 1st para., of the Constitutional Agreement). We pointed out this (possibly unintentional) contradiction to our interlocutors in Kiev and urged them to ensure that in the final constitution the list was stated to be non-exhaustive or linked in some appropriate way to the full-responsibility principle established in Article 47, 1st para. Although the last section of the enumeration refers to the possibility of delegation of additional responsibilities at any time, the impression of exhaustiveness would be contrary to Article 4 (2) of the 1985 Charter, under which the only exceptions to local-authority responsibility for local matters are matters which local authorities are debarred from dealing with or which, by statute, are assigned to other authorities.
In addition, Article 49, 4th para., of the Constitutional Agreement states: "Procedure for establishment and organisation as well as scope of competence of local self- government authorities "shall be specified by a specific law". Such legislation will also have to take account of the principle in Article 47, 1st para. (responsibility for all matters of local concern) and counter the impression that the enumeration in Article 49 is restrictive.
On 20 July the presidential advisor, Mr Hrynyov, told us that the enumeration in Article 49 was only a beginning and that the intention had always been more extensive. ("This is only a minimum," he told us, "and the President's office will be bringing its influence to bear in order to broaden the wording.") So we can expect the 1996 constitution to be in line with the principle of full responsibility as laid down in Article 47, 1st para., of the Constitutional Agreement.
9. Under Article 50 of the Constitutional Agreement the functions of village, town and city councils are to be performed by "executive committees" of the councils and members of executive committees are to be appointed by the chairman of the council.
Chairmen of village, town and city Radas are to be elected by nationals of Ukraine residing in the particular village, town or city. The chairman of a Rada also chairs the executive committee and directs both the activities of the Rada as a self-governing body and the activities of local services and the other executive bodies within the authority (Article 50, 2nd para.).
This combination of functions places the directly elected Rada (mayor) in a very powerful position.
10. Under Article 51 of the Constitutional Agreement the responsibilities of the executive committee headed by the Rada chairman are not confined to the Rada's self-governing functions but extend to carrying out functions of the executive which are delegated to them and the scope of which is specified by the President of Ukraine. In the matter of supervisory functions the Constitutional Agreement accordingly also draws a clear distinction between local-government functions on the one hand and delegated state functions on the other: whereas, under Article 51, 2nd para., the Rada chairman and his executive committee are accountable to the Rada "in matters relating to self-government functions", in matters relating to delegated functions of the executive they are subordinated, under Article 51, 3rd para., to the President of Ukraine, the Cabinet of Ministers of Ukraine and the heads of State administrations of higher level.
Local-authority associations and Ukrainian Parliament representatives we spoke to during the visit of 19-22 July 1995 were critical of the fact that the popularly elected chair of the Rada appoints the members of the Rada's executive committee (Article 50, 1st para.) and also of the subordination to state organs (Article 51, 3rd para.). On the one hand the criticism was that the state ("at local as well as presidential level") was thereby rendered too powerful and a Rada's rights unduly restricted. Many of those we met were keen that membership of the executive committee reflect the party-political make-up of the Rada or that the Rada elect it from among its own numbers. In addition, some of the criticisms harked back to the debate which had preceded the Constitutional Agreement and in which there had not been such a clear distinction, for supervisory purposes, between self-governing functions and delegated functions as there now is in Article 51. Here, the core issue is to what extent state functions, instead of being delegated to the Rada chair and his executive committee under Article 51, 1st para., are transferred to local government and come under Rada supervision under Article 51, 2nd para.
11. Under Article 52, 1st para., any decisions taken by a Rada, its chairman or its executive committee on matters relating to local self-government which are contrary to the constitution or laws of Ukraine are suspended pending a court judgment delivered in accordance with relevant Ukrainian law. In the case of villages, towns and cities of district importance the suspension decision is taken by the head of district state administration and in the case of cities of regional importance by the head of regional state administration. The agreement does not specify how a suspension decision comes about. For example, it does not say whether the locally elected chairman lodges a complaint of unconstitutionality or unlawfulness with the supervisory authority and whether the local authority is allowed to revise the decision so as to remedy the illegality. Nor does the agreement exclude the possibility of the authority's itself dealing with a suspended decision and revising it appropriately. Here the provision also needs to match Article 8 (2) of the 1985 Charter, which states: "Any administrative supervision of the activities of local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles." In the case of delegated state functions, illegal decisions by the chairman or executive committees of a Rada can be repealed, without reference to other authority, by the head of regional state administration (Article 56).
12. Section VII of the Constitutional Agreement ("Local public executive authorities and local self government in Ukraine") also deals with the responsibilities of the 24 self-governing regions, the cities of Kiev and Sebastopol and districts (including urban districts in Kiev and Sebastopol but not other urban districts) (Article 53). There is to be special legislation on Kiev and Sebastopol (ie these two cities will not come under the law on popularly elected local councils - see autumn 1994 draft). The executive bodies of the regions are again the regional councils ("Radas), the Kiev and Sebastopol urban councils and the district councils (including urban district councils within Kiev and Sebastopol). Their functions include:
- approving the budget and supervising its execution;
- approving programmes of social and economic development for their areas;
- hearing annual reports from heads of local state administration on the budgetary matters and progress of development programmes.
The Constitution does not clearly define the self-governing functions of the regions ("oblasti"). It is evident that there remains a considerable emphasis on decentralised state administration at that level. Here again there is to be special legislation (see Article 53, 4th para.) on the setting up, functioning and purview of regional and district Radas.
In the case of an illegal decision by a regional, district or (Kiev and Sebastopol) urban Rada it is the appropriate superior state administrative body that suspends the decision and refers the matter to the courts.
13. Under Article 55, village, town, city, district and regional (!) Radas are locally elected. Their size depends on the size of the population and is to be not less than 7 members and not more than 75.
14. Article 58 deals with early dismissal of heads of state administrative authorities and chairmen of Radas. Whereas the mandates of chairmen of village, town or city Radas may be terminated early by the President of Ukraine "by virtue of a judicial decision" if they break the Constitution or laws of Ukraine, decrees or orders of the President or ordinances or instructions of the Ukrainian Government, heads of regional, district or Kiev or Sebastopol state administrative authorities can apparently be dismissed by the President without any referral of the matter to the courts (Article 58, 1st para.). There would appear to be a further constitutional oddity here: the Mayor of Kiev (ie the chairman of the Kiev Rada) is directly elected, like his counterparts in the villages, towns and other cities, and it is not clear why it should be possible for him to be dismissed by mere decision of the President whereas his counterparts in the smaller communities are dismissable only after a court decision. The provision concerning direct election of the Rada chairman in smaller communities (Article 50, 2nd para.) does not specify the procedure for electing chairmen of regional, district or the Kiev or Sebastopol urban Radas but procedure for early termination of their mandates is laid down. The announced special legislation on Kiev and Sebastopol will not resolve the inconsistency. That will take an appropriate provision when the Constitutional Agreement is translated into a definitive constitution in 1996.
IV. The special status of the Autonomous Republic of the Crimea
Under the Constitutional Agreement of 8 June 1995 the Autonomous Republic of the Crimea has ("shall be an") administrative and territorial autonomy and is part of Ukraine (Article 59).
Article 59, 2nd para. reads:
"The Autonomous Republic of the Crimea decides, at its discretion, matters falling within its competence under the Constitution of Ukraine and laws of Ukraine."
The Crimea is therefore again accorded special regional status. The Crimean peninsula has a population of around 2.6 million, some 1.7 million of whom are Russians most of whom settled there after 1945 and more particularly from 1954 (when Nikita Khrushchev "gifted" the Crimea to Ukraine to mark the 300th anniversary of Ukrainian-Russian reunification) onwards. The Crimean question has been and remains complicated by Stalin's forcible removal of the Crimean Tatars, culminating in May 1944 with the expulsion, in the space of 2 weeks, of just under 200,000 Crimean Tatars, who moved or were deported to Kazakhstan and Uzbekistan on the pretext that they had collaborated with the Wehrmacht. Even when Khrushchev rehabilitated Stalin's victims in February 1956, the rehabilitation did not cover the Crimean Tatars or the Soviet Germans (also forcibly resettled in large numbers).
When Stalin's deportation decree was rescinded in 1967 the Crimean Tartars were still not allowed to return. A National Movement of Crimean Tartars was created as a result. After the collapse of the Soviet Union, from 1989 onwards, Crimean Tartars began returning in significant numbers. By 1994 it was reckoned that some 300,000 had returned to the peninsula. There is considerable demand for the resurrection of a Crimean Tartar state such as existed before the 1783 Russian conquest. In late June 1995 local unrest and clashes with the police and between young Russians and young Tartars resulted in a number of deaths in Feodossia and Sudak.
In the elections on 27 March 1994 a pro-Russian list, Rossiya, obtained around two-thirds of the vote and the Communist Party, which favours restoring the USSR, received 11%. Thus almost 3/4 of the voters were against attachment to Ukraine. Against Kiev's wishes the elections on 27 March 1994 were treated as a referendum on Crimean autonomy, which 78.4% of voters were in favour of. In regional "presidential" elections on 30 January 1994, which were not recognised by the Government in Kiev, victory went to the candidate of the Crimean Republican Party, committed to immediate union with Russia. In October 1994 the thus unofficially elected "President" of the Crimea, Mr Meshkov, persuaded his party to renounce union with Russia and instead back increased autonomy.
When the President of Ukraine was elected in mid-1994, the Russian community in the Ukraine regarded him as the champion of reunification or rapprochement with Russia or the Soviet Union. For that reason President Kuchma received around 90% of the votes in the Crimea (and also in eastern Ukraine) as against only 10% of the votes in Ukrainian- nationalist western Ukraine. At the time there were widespread fears that regional and ethnic polarisation might result in the country's disintegration. In mid-1994, in presidential circles, there was also talk of federalisation, though currently one hears rather more about regionalisation on Spanish lines.
In May 1992 there was a declaration of Crimean independence which was later withdrawn. In 1994, however, "President" Meshkov took a stand on Crimean nationality and demanded greater independence from Ukraine.
In early 1995, by 57 votes to 21, the Crimean Parliament in Simferopol adopted a resolution on the holding of a referendum, threatened since 1992, on secession from Ukraine. In response, on 17 March 1995, the Ukrainian Parliament repealed the Crimea's autonomous status, dissolved the Crimean Parliament and, to all intents and purposes, prohibited the Crimea from having a president of its own. At the same time a new autonomous status was announced. On 31 May, under pressure from the Ukrainian President and cowed by the Ukrainian Parliament's decision, the Crimean Parliament finally cancelled the referendum on the Crimean constitution. (The Ukrainian Parliament had given the Crimea until 31 May 1995 to cancel the resolution on bringing back the separatist 1992 Crimean constitution and call off the referendum set for 25 June. The Ukrainian President had already laid the draft provisional constitution before parliament, which adopted it on 8 June 1995).
During this showdown the Russian Government conspicuously held back although the Crimean "Parliament" had expressly asked Russia for help in the dispute with Ukraine. The Russian Government under Mr Chernomyrdin took the attitude that it was an internal Ukrainian matter, a position that aroused violent criticism in the Duma, angered both nationalist and communist members of parliament and resulted, in mid-April, in a motion of no confidence in the government, though the motion was defeated. At that point Moscow was heavily involved in the crucial dispute over Chechen independence and was clearly keen to avoid being embroiled in a further conflict of similar seriousness. The President and Parliament of Ukraine took this opportunity to state in the Constitutional Agreement, that the Autonomous Republic of the Crimea was part of Ukraine.
An agreement concluded by President Yeltsin and President Kuchma on 16 June 1995 has apparently to some extent defused the Crimean situation. The agreement ended the fraught negotiations, which had been going on since 1992, concerning the former Soviet Black Sea fleet of 833 large and small naval vessels based on Sebastopol. The status of Sebastopol and the surrounding area had been a bone of contention since Ukraine's declaration of independence. Moscow claimed sovereignty over the "historic fortress town". The Russian Parliament, the Duma, had even passed a resolution (which, however, was not binding on the government) quite simply declaring Sebastopol to be a Russian city. In the June agreement the Russians accepted the Ukrainian wording, to the effect that Russia maintained the fleet's main base and personnel "in the city of Sebastopol", a wording which makes it clear that Sebastopol and the installations there belong to Ukraine. It was emphasised that there would be more negotiations to work out further details of the status and presence of the Russian Federation's Black Sea fleet in Ukrainian territory. At the same time the agreement acknowledged the position as stated in Ukraine's Constitutional Agreement of 8 June 1995, namely that the whole of the Crimea was part of Ukraine.
The issue in the Crimean dispute has always been Ukraine's actual existence, not just Crimean independence. A Crimean secession would have been an unmistakable signal to ethnic and regional communities in Ukraine, bringing about its disintegration. There remains the question of Ukraine's regional subdivisions (see section III (12) above and section V below).
V. The road to a 1996 Ukrainian constitution
As well as with constitutional matters and the position regarding local government, the Council of Europe delegation's talks in Kiev on 20 and 21 July were naturally heavily concerned with future developments, given the transitional nature of the June 1995 "mini-constitution". Here the talks with the Ukrainian presidential adviser on regional matters, Mr Hrynyov, on 20 August were particularly instructive. The discussion was extremely open and revealed a determination to push through the President's reform policies speedily and a confident expectation of immediate admission to the Council of Europe as a democratically reformed state. The discussion began with the self-confident opener that it was nice that so many people were taking an interest in the Ukraine and its problems but that the Ukraine had to solve these itself. It closed with a question from Claude Haegi about what the Council of Europe could do to assist the reform programme, to which Hrynyov replied "Nothing other than show understanding".
According to the presidential adviser the President's team drew up a list of national reform priorities during the summer of 1994. The top priority was to move from a Soviet system to a system of power-sharing, both horizontally as between the President and the government on the one hand and parliament on the other and vertically as between the various tiers of state and local government. Three reform aims had been formulated:
- distribution of power, both vertically and horizontally;
- establishing (new to Ukraine) a right of municipalities to self-government (municipalities having hitherto been subordinate to central government);
- a vertical dividing up of state administrative authority.
This was only a start, he said, and further steps were extremely important:
- a distribution of soviet-style "property of the people" among the various levels;
- local, regional and state administration;
- reform of budget law, with particular reference to municipalities and regions.
In the medium term the aim was a regionalised state on Spanish lines, not a federalised one. When asked how the regional boundaries would be decided and whether they would be based on the existing "oblasti", Mr Hrynyov said the constitution would use an economic basis for regional structure. In a few days there was to be a Cabinet meeting to discuss economic structure and reshape the present 24 "oblasti" (plus the Crimea and - with their special status - Kiev and Sebastopol) into a system of regions with an economic basis, the aim being to create regions according to historical, economic and structural criteria, as in Spain or Germany. In each case, he said, economic considerations would be crucial. In the 1996 constitution this would be an "option for the future", and so the boundaries of individual regions might not be decided just yet.
The Deputy Speaker of the Ukrainian Parliament, Mr Tkachenko, likewise stressed, in our talks in Kiev, that the new constitution would be concerned less with federalising the country than creating a structure similar to that in Spain, with some of the 17 regions having special autonomous status. The regional concept was relatively new and in any case did not conform to the existing "oblasti".
With regard to the procedure for drawing up the 1996 constitution, Mr Hrynyov said that in the first quarter of 1996 the government intended holding a referendum on the constitution so that the constitution could be published in April or May 1996 and brought into force.
He said he would probably being chairing the Constitutional Committee. The Constitutional Agreement expressly provided that the draft constitution was to be agreed with parliament. (See section IV of the Constitutional Agreement of 8 June 1995.)
Mr Tkachenko said that the various draft constitutions, of which there were several (possibly as many as 9), would have to yield one agreed draft by the end of 1995. It had not yet been decided whether, thereafter, the Verkhovna Rada (Parliament) or a referendum would decide. In any event the decision on the constitution would have to be taken in the first quarter of 1996 so that a new constitution was adopted within the one-year period laid down in the Constitutional Agreement of 8 June 1995.
Our information is that by late September or early October 1995 there should be a preliminary agreed draft of the constitution, complete with the section on regions and municipalities, and that this will then be discussed by the Constitutional Committee. The Constitutional Committee should have discussed it by December 1995 so that an agreed draft is ready for discussion between President and parliament. Debate in parliament should start in January 1996.
In discussion with us on 21 July members of parliament said they would like Council of Europe representatives to assist the debate as from October 1995. Members of parliament in the Constitutional Committee are keen to have advice and assistance of that kind (the specialists/consultants would be sent the draft texts in good time). The representatives of the Foundation for the Promotion of Local and Regional Government in Ukraine (an institution founded by the President) expressed a particular desire for such assistance. In the talks on 21 July the local government associations said they very much hoped that the President, the government and parliament would involve them in the discussion, and not just the President's Foundation.
The desire for early collaboration with Council of Europe experts was also expressed by Mr Tkachenko, who requested Council of Europe collaboration both with the parliamentary committee for local matters and the Constitutional Committee.
Mr Hrynyov also went into other legislative plans. The new constitution, he said, was not their sole concern. There were 3 pieces of planned legislation:
1. The law on state power - the "mini-constitution" - and its provisions on local self-government needed to be incorporated in the new constitution, with appropriate safeguards.
2. A law on economic activity (including that of the state, regions and municipalities) would have to lay down private and public ownership rights and create the conditions for Ukraine's unrestricted economic development.
3. It was important that the new constitution secure individual freedoms and human rights.
In addition, a new draft local-government law is announced which is clearly intended to replace the December 1994 bill on the basis of the Constitutional Agreement. The draft should be available by late July or early August 1995, and we were told it could be made available immediately to the Council of Europe and the Congress of Local and Regional Authorities. The focus is to be on self-government and a reform of the vertical structure of state administration, taking in everything from decentralised government to the "oblasti".
Mr Tkachenko stressed the importance to Ukraine of admission to the Council of Europe. The new draft legislation on local government based on the Constitutional Agreement of 8 June 1995 should help meet the admission requirements. A range of traditions, opportunities and developments at the local level was important to the future of the country. Parliament's intention was therefore to guarantee and strengthen local self-government in the interests of national social and economic development. It was no accident that the law on government authority, currently in force as the "Constitutional Agreement", contained, in addition to the main rules on state bodies, a lengthy section on local government and transfer of state responsibilities to the local and regional levels.
VI. Role of the main local-authority associations
Under Article 10 of the European Charter of Local Self Government local authorities are entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.
During the visit on 20 and 21 July 1995 the Council of Europe delegation was able to meet representatives of four local-authority organisations. Two of these are local-authority associations in the strict sense, and another is the foundation which the President of Ukraine set up by decree.
1. The Association of Democratic Local Councils of Ukraine
As in the case of the visit in November 1994 and March 1995 the Association of Democratic Local Councils of Ukraine played an especially active part in this visit. It was set up in January 1990 with the aim of strengthening local-government autonomy in Ukrainian towns and cities. It therefore seeks to have the 1985 European Charter of Local Self Government implemented, has translated it into Ukrainian and has issued copies to every elected local councillor in the country. It has close relations with the Polish Foundation for Local Democracy and a similar organisation in Latvia. It wants to see a standing conference of local authorities of central and eastern Europe, with close links with the Council of Europe Congress of Local Authorities and Regions.
It claims to have a membership of around one hundred towns but in many cases it is probably individual council members with a particular democratic or party-political commitment that are involved. Membership of the association requires acceptance of the principles of the European Charter of Local Self Government.
The association makes intensive use of European Union programmes (such as, for local-councillor training, the TACIS programme).
As in previous talks, the association was represented by, among others, Nathalia Shymanska (Executive Director), Serkij Konev (chairman of the association's Co-ordinating Council) and Valery Pavlovich Rubtsov (vice-president of the association and a councillor in Kiev).
The association's contribution to the discussions was heavily concerned with the various pieces of draft constitutional and other legislation which have been debated in parliament and within political organisations in the context of the Constitutional Agreement. The association needs to make the most of the opportunity afforded by the Constitutional Agreement to ensure that the agreement's provisions are incorporated in the 1996 constitution and, on that basis, to play a part in revision of local government legislation (and the superseded 1994 draft legislation).
2. The Ukrainian Association of Local and Regional Authorities
The Ukrainian Association of Local and Regional Authorities is an association of 100 towns and cities. By virtue of his prominence, one of the leading figures in the association is probably the Mayor of Kiev, Leonid G Kossakivsky. As chairman of the Kiev city council he is also vice-president of the association. Another leading figure is the chairman of the Kiev regional council, V. Sinko. The association has the backing of the main local authorities, mostly led by people who were trained up and made their names under the previous regime. There is some incipient rivalry between the two associations, not least as regards appointment of local and regional representatives to the Congress of Local and Regional Authorities.
3. The League of Historic Towns of Ukraine
Against the backdrop of Ukraine's independence declaration after the collapse of the Soviet Union, there also emerged a League of Historic Towns of Ukraine, which is intended to include all local authorities at least 300 years old and whose membership therefore includes towns which were important even before the subjugation to the Muscovite tsars (1654 onwards). The league should take on particular importance as a force for keeping the various parts of the country (with their Ukrainian, Russian and Tatar nationalities/majorities) integrated. The basis of the league is Ukrainian national history and its aim is to promote the common historical identity of modern-day Ukraine. Kiev is also an important member.
4. Foundation for Local and Regional Self-Government in Ukraine
By decree of the President, Mr Kravchuk, a "presidential" Foundation for the Promotion of Local and Regional Self-Government in Ukraine was set up in April 1992 to operate as a state body providing "scientific and methodological support" to local and regional self-government entities in Ukraine. The Foundation's statute, approved by Presidential Decree of 3 October 1992, lays down the following main objectives:
- providing scientific and methodological assistance for setting up and developing a system of local and regional self-government;
- providing support to local entities in the development of democratic arrangements and working methods;
- input to the development of a legal framework for local-authority activity;
- drawing-up proposals and recommendations for the improvement of local-authority structure and functioning in the light of national and international experience.
In addition to research in appropriate areas and further training for local-authority and state-administration staff, one of the Foundation's main functions is producing draft legislation and presidential or Cabinet decrees on matters to do with local and regional self-government. The Foundation's governing board and administrative council comprise members of parliament, presidential, parliamentary and Cabinet staff, mayors of Ukrainian cities and recognised legal specialists. The Foundation's chairman is appointed by the President and directs its work. He is assisted by a group of legal, economic, sociology and other specialists.
The Foundation has close links with similar institutions abroad, including institutions in France, the United Kingdom, Greece, Lithuania, Poland and Russia.
The Foundation - though it also has revenue from its own commercial activities - is state-financed. It regularly organises conferences on practical and academic matters (including international seminars) and publishes a journal, "Local and Regional Self-Government in Ukraine".
The Foundation representatives with whom we compared notes on the present constitutional and legal position regarding local self-government were the vice-chairman, Mykola Pukhtinsky, and the deputy executive director, Renold Davidov.
With these four quite different local authority associations Ukraine certainly meets the requirements of Article 10 of the European Charter of Local Self-Government, which states that local authorities are entitled to set up and belong to associations for the protection and promotion of their common interests (Article 10 (2)). In addition it has the Foundation, which is not yet self-governing.
1. The Constitutional Agreement of 8 June 1995 repealed the Brezhnev Constitution, dating from the Soviet period.
2. The Soviets of People's Representatives have been replaced by local and regional councils and by directly elected council chairmen (mayors) with executive committees which the mayors appoint.
3. Under the resulting constitutional provisions the chairman/mayor head both the local authority and the local state administrative authority.
4. A great many responsibilities remain state responsibilities; there is still not any extensive transfer of state responsibilities to the local level.
5. The Constitutional Agreement recognises, for the first time, a wide-ranging right to self-government at village, town, city, district and regional level, with, under Article 47, autonomous management of all matters of local concern.
This meets the requirements of Article 4 (2) of the 1985 Council of Europe Charter and is in line with the full responsibility provided for in Article 28 of Germany's Basic Law.
6. Section VII (Articles 46 to 58) of the Constitutional Agreement lays down an exceptionally comprehensive set of provisions having constitutional force. Ukrainian constitutional law thus contains detailed safeguards on local self-government whereas in most other countries there is only a general provision in constitutional law and the detailed safeguards are provided in the implementing legislation. Thus Ukraine's constitutional provisions more than meet Article 2 of the 1985 Charter ("The principle of local self-government shall be recognised in domestic legislation, and where practicable in the constitution").
7. Article 49 of the Constitutional Agreement contains a list of local-government responsibilities and gives the impression of contradicting Article 47, 1st para., which lays down a right to decide "all local matters". This contradiction will have to be resolved by the further work on the constitution and by the implementing legislation on local government.
8. Under the Constitutional Agreement the framework of local self-government comprises village, town and city councils. The village, town and city communities are the constitutionally recognised subjects of local-government entitlement.
9. Under the Constitutional Agreement the directly elected council chairmen/mayors are in a position of enormous strength, having executive committees which they appoint. This reflects the misgivings which its drafters had about the composition of the old Soviets of People's Representatives, which were not always keen reformers. The result is a delicate balance between the councils on the one hand and the mayor-led administrative bodies on the other, a balance on which future practice and legislative development of greater democracy will have a crucial bearing.
10. The Constitutional Agreement lacks the clear guarantee of financial provision which Article 9 of the 1985 Charter requires. Hitherto, finances have been heavily dependent on municipal property and assets and the revenue derived from them, and understandably, on account of the economic crisis, there has not been any move to tax-raised finances. The future constitution or national legislation on local government will have to include a guarantee of financial provision commensurate with local authorities' responsibilities and of financial equalisation between the wealthier and poorer regions/cities.
11. Judicial review of local-authority decisions is in line with Article 8 (2) of the 1985 Charter. It is confined to review of legality of decisions of the local (self-government) authority, whereas decisions of the local state administrative authority (under the same directly elected council chairmen/mayor) are subject to state approval. In the case of early removal from office the constitutional provisions apply to cities, towns and villages but not to the capital, Kiev, a deficiency which possibly needs making good in the special legislation on Kiev.
12. Article 59 of the Constitutional Agreement, which deals with special autonomous status for the Crimea, is in the section of the agreement dealing both with local self-government and local state administration. That would imply that equivalent Crimean local-government legislation remains possible. Time will tell.
13. The creation of new regions (the "oblasti" are more in the nature of state districts) on an economic and historical basis cannot fail to have implications for regional and local self-government. So far the regions have not been specified. In the context of national development they are to have a stronger (economic) basis, but they must not be purely state executive authorities but also have genuine regional self-government.
In taking a decision on Ukrainian admission, the Council of Europe, in so far as it takes into account the legal situation regarding local self-government in independent Ukraine, will have to have regard to the following considerations:
1. The Constitutional Agreement of 8 June 1995 has created a highly developed set of constitutional guarantees and provisions regarding local and regional self-government which goes far beyond the kind of frame provisions usually found in national constitutions and which, fully in accordance with the Council of Europe Charter of Local Self-Government, gives local governments a status which in most countries is only to be found in implementation legislation.
2. The Constitutional Agreement is an intermediate measure which repeals the 1978 Soviet constitution but which only runs until 8 June 1996. A new constitution is then supposed to come into force. The Council of Europe will have to see whether these highly developed new constitutional provisions (this "acquis constitutionnel") are retained and carried over into the definitive constitution, as the present President intends.
3. New draft local-government legislation is to be forthcoming in September 1995 and, together with the parliamentary debate on it, will provide clear pointers to future legal developments concerning local self-government. Here again, the crucial question is whether the "acquis constitutionnel" can be maintained or even improved upon.
4. In the context of future legal developments the first reading (scheduled for September 1995) of the legislation on Kiev will be of particular interest, as also will be the possible special law on the position of Sebastopol and the legislation on local government in the Crimea.
5. The announced regionalisation and the regions' future place in the state structure will have a lasting impact on local self-government in Ukraine, the present 24 (plus 2) "regions" being replaced by 6 to 9 larger units with populations of from 5 to 8 million. The foundations are to be laid in the 1996 constitution.
6. The Constitutional Agreement of June 1995 has programmatic content and goes far beyond present legal practice in the towns and cities. Resistance to the agreement in parliament was a sign of that.
Putting the law into actual democratic practice in towns and cities is therefore also crucial.
7. Admission of Ukraine to the Council of Europe and bringing its democratic local and regional authorities into the Congress of Local and Regional Authorities of Europe (CLRAE) with its two local and regional chambers presents an opportunity to strengthen the forces for reform and provide support to the reform-minded democrats who are often still in the minority.
8. The offer by Ukrainian Parliament representatives and local-government associations to bring in specialists and CLRAE representatives to appraise and assist with constitutional and other legislation should very definitely be taken up, particularly as talks so far have been extremely open and constructive.
Steinfurt, July 1995
to the report on the legal situation concerning local self-government in Ukraine
A member of the CLRAE Secretariat travelled to Kiev on 31 August 1995 (ie, after the completion of this report). Mr Hrynyov, Advisor on Regionalisation to the President of Ukraine, informed him of the latest decisions concerning the plan for setting up regions in that country.
The Ukrainian Government is said to have dropped its plans to set up strong regions following the Spanish model. On the contrary, it would rather keeping the status quo for the time being. Therefore, oblasts (ie, a second-tier local authority) would stay during the plan's initial phase. The Government, however, could authorise oblast mergers in order to set up larger territorial administrations, but this would only happen later on.
At any rate it is of capital importance to follow-up the drafting of the new Constitution. If Ukraine is to set up regions within its territory at all, only the new Constitution can indicate which pattern will be followed.
Strasbourg, 3rd October 1995