Local and Regional Democracy in Ukraine - CG (5) 6 Part II

Rapporteurs: Mr Alain CHENARD (France) and Mr Kenneth BODFISH (United Kingdom)

EXPLANATORY MEMORANDUM


1. INITIATIVE AND PREPARATION

The CLRAE decided to prepare a report on Local and Regional Democracy in Ukraine, at the meeting of its Bureau on 8 September 1997.

This confirmed the proposal already contained in Resolution N° 58 (1997) adopted at the 1997 Plenary Session of the CLRAE.

The Bureau appointed as Rapporteurs Mr Alain Chénard (Chamber of Local Authorities) and Mr Kenneth Bodfish (Chamber of Regions) to be assisted by Dr Heinrich Hoffschulte as Consultant.

The Secretary of the Working Group was Mr Richard Hartley.

a. First visit

The Working Group made its first visit to Ukraine on 28-29 August 1997.

One of the reasons prompting the visit at this time was the dismissal of the Head of the City Council of Kyiv by a majority of members of the City Council - the culminating point in a conflict of over 18 months between the elected Head of Council and the State Administration of the City of Kyiv.

In a general sense, the delegation wished to review the latest developments concerning local democracy in Ukraine and, particularly, the fate of various legislative drafts, then currently under discussion in the Parliament.

Together with the Rapporteurs, the delegation also included: Dr Josef Hofmann, President of the Chamber of Local Authorities; and Mr Victor Ruffy, Vice-President of the Parliamentary Assembly Committee on Environment, Regional Planning and Local Authorities.

On this occasion, the delegation met:-

- Mr Kossakivskiy, the "dismissed" Head of the Kyiv City Council;
- members of the City Council, both in support of and in opposition to the Head of the Council;
- Mr Omelchenko, Head of the State Administration of Kyiv and Mr Yalovni, Deputy Head, together with a number of his senior colleagues in this administration;
- representatives of national associations of municipalities, Mr Sinko of the Association of Local and Regional authorities of Ukraine, Mr Melchinskiy of the League of Historic Towns of Ukraine, MM Putzchinskiy and Davydov of the Foundation for Local Self-Government; Mrs Shymanska and Mr Rubtsov of the Association of Democratic Councils of Ukraine (also members of the Kyiv City Council).

From the Ukraine Parliament, the delegation met Mr Moussiaka, Vice-President; Mr Teplyuk, Head and colleagues of the Law Department of the Parliament and Mr Steshenko, President of the Parliamentary Committee on Administration and Self-Government.

Finally, the delegation spent some time with Mr Kushnaryov, Head of the Administration of the President.

A report of this meeting was made to the Bureau of the CLRAE at its meeting on 8 September 1997 in Vienna following which a number of recommendations were addressed to the Ukraine authorities.

* * *

b. Second visit

The second visit of the Rapporteur Group was on 20-21 November 1997. Participants, on this occasion, were Mr Chénard, Mr Bodfish, Dr Hoffschulte and, from the Secretariat, Mr Hartley.

One of the purposes of the visit was to examine the follow-up given to the recommendations of the Bureau of the CLRAE formulated at its meeting of 8 September 1997.

Specifically, the delegation wished to acquire information on the legal inquiry into the dismissal of the Head of the City Council in Kyiv, Mr Kossakivskiy and examine progress made in relation to further legislation on local self-government, particularly concerning (a) the status of Kyiv and (b) territorial administration in the country as a whole.

During this visit, the delegation met:

- Mr Moroz, President of the Parliamentary Assembly of Ukraine;
- Mr Bezcmertny, vice-President of the Parliamentary Committee on Administrative Reform and representative of the Presidential Administration in the Parliament;
- Mr Teplyuk and Mr Grab, Head and Deputy-Head of the Legal Department of the Parliament;
- Mr Kushnaryov, Director of the Administration of the President of Ukraine;
- Mr Putchinskiy, Director for the Foundation of Local Self-Government of the President;
- Mr Kossakivskiy, Head of the City Council, Kyiv;
- Mr Bychkov and other members of the Municipal Council of Kyiv, supportive of Mr Kossakivskiy;
- Mr Grab, Mrs Shymanska and Mr Rubtsov, members of the Municipal Council of Kyiv and, in respect of the latter two, as the leaders of the Association of Democratic Municipal Councils of Ukraine.

c. Third visit

A third occasion for the visit of the Rapporteur Group was on the occasion of the municipal and regional elections held in Ukraine on 29 March 1998 (see paras 10-12). Although the primary purpose of the visit, in company with other delegates making up the observer team, was to analyse the electoral campaign and the day of voting, it was nonetheless possible for the Rapporteurs to bring themselves up-to-date with further developments on local and regional democracy in the country.

2. LEGAL PROTECTION OF LOCAL SELF-GOVERNMENT IN UKRAINE

The new Constitution of 28.6.96 broadly defines the context of local and regional self-government. However, at the same time there are significant contradictions, likely to cause varying interpretations and conflicts, especially in respect of the role of a local State administration, on the one hand; and the elected Mayors and Councils, on the other.

Ukraine has signed on 6 November 1996 and ratified, in the summer of 1997, the European Charter of Local Self-Government. It has passed in 1997, a general framework law on local administration in the Ukraine.

The text of this legislation in Ukrainian and English version is with the Secretariat. Additional legislation has been planned (see para. 7 below) but not a great deal of this has actually been enacted.

3. THE IMPLICATIONS OF SIGNING AND RATIFYING THE EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT

The ratification of the European Charter of Local Self-Government means that the theory and practice of local self-government in Ukraine can be examined and monitored by the CLRAE and, in particular, by its Working Group on the Charter and by a Working Group on Local Democracy.

Contrary to what has occasionally been said to the delegation on its visits to Kyiv, the difficulties encountered in local and regional democratic reform are not, therefore, purely a domestic matter but one of direct concern to the CLRAE and, indeed, to the Parliamentary Assembly as part of its procedure for monitoring the respect of commitments of new member countries.

Furthermore, in Ukraine itself, the ratification of the Charter means that not only municipalities but also districts and regions throughout Ukraine, without restriction, are submitted to the principles of self-government.

4. THE BUREAU OF THE CLRAE

The CLRAE Bureau has discussed the question of Ukraine on several occasions since the last Plenary Session. Such discussions have taken place at meetings on 8 September 1997, on 26 November 1997 and 3 February 1998 in Lecce.

On the above occasions, the Bureau discussed the illegal "dismissal" of the Head of the City Council of Kyiv (see below, para. 9(a)); the management of the capital and Sebastopol (see below, para 5(a)); legislative deficit on local self-government (see below para 6); on municipal councillors holding responsible positions in the associated executive administration (see para 5 (c) and 7); about the legal process and the Supreme Court decision relating to the Head of the City Council (item 9(a)).

On some occasions, these recommendations, formulated both verbally and in the form of a letter signed by the President of the Congress have been accompanied by Press Communiqués.

5. RECOMMENDATIONS OF THE BUREAU TO UKRAINE GOVERNMENTAL AND PARLIAMENT AUTHORITIES

Following its meeting on 8 September, the Bureau addressed a letter to the Ukraine authorities concerning:

a. The situation in Kyiv and Sebastopol

On this question, the recommendations of the Bureau, communicated subsequently in a synoptic form to the Ukraine Presidential administration, were as follow:-

"- that it is regrettable, six years after the independence of Ukraine, that the status of Kyiv as a municipal unit and as the state capital has not yet been legally resolved and that the State Administration still accordingly has an excessive weight on the conduct of municipal and local interests;

- that the principles of the European Charter of Local Self-Government, now ratified in Ukraine, should be applied to Kyiv, the most important town of the country, in its municipal practice and functions;

- that the proposed legislation on Kyiv should ensure that the elected City Council of Kyiv has its own administration responsible for the conduct of municipal matters in the capital - if appropriate in balance with the administration of the President; and that this administration is subordinated to the elected Council."

(Extract from report of the meeting of the Bureau, 8 September 1998).

* * *

According to Article 140, para. 2 and Article 118, para. 2 of the new Constitution of 28 June 1996, Kyiv and Sebastopol have a special status - "peculiarities of exercising local self-government in the cities of Kyiv and Sebastopol are determined by separate laws".

The reason for this is no doubt because of the need to balance central and local government interests in the capital of Kyiv and because of the position of Sebastopol as a key military establishment.

However, despite the references to "peculiarities", the Constitution nonetheless guarantees local autonomy for both cities, in the context of its references to local "self-government".

The interests of local government have been secured by elections in 1994 to a Municipal Council and to Districts Councils, with directly elected Heads of Councils. However, neither town has its own administration other than a small unit for running some logistical requirements of the Councils. The chief responsibility for the conduct of municipal matters in both cities lies with a centrally-appointed administration with a Head of Administration nominated by central government. This means that there is a parallelism of power - and therefore a virtually automatic institutionalised conflict - between an elected Head of Council and an appointed Head of Administration.

A "natural" solution to this conflict came about during the transitional period when the state- nominated Head of the Administration was a candidate in the first free municipal elections in 1994, and was directly elected as Mayor and Head of the Council (Mr Kossakivskiy).

However, after these elections in 1994, differences between central and local government in the Capital led to the removal of Mr. Kossakivskiy from his position as Head of Administration and his replacement, in accordance with Article 118 of the new Constitution of June 1996, by a central governmental nominee, Mr. Olmenchenko and by a subsequent campaign to destabilise the position as Mr Kossakivskiy as elected Head (see below para. 9(a)).

The situation was further blurred by an amalgam of functions in the municipal council of Kyiv where up to 12 of its elected members held key positions in the Executive of the local State Administration, despite such a dual mandate being in breach of legislation in Ukraine on the status of elected councillors.

The last two years and, especially, the last few months prior to the March 1998, elections, have seen innumerable discussions about a new statute for Kyiv and Sebastopol. There have been several Parliamentary and other drafts, including proposals from the Foundation for Local Self-Government, the Presidential-inspired Foundation for Local Self-Government.

The Ukraine Parliament has had three readings of its draft on the status of Kyiv and Sebastopol, after which it was submitted for Presidential approval. However, the Bill, for the moment, is vetoed by the President.

During its visit in August 1997, the delegation heard from the Head of the Presidential administration that a change in the current legal status of Kyiv, admittedly necessary if such a status were to be in line with the European Charter, would likely require a change of the Constitution, a change to which the relevant Ukraine authorities would be unlikely to agree; that furthermore there was an argument for maintaining the current status for a provisional period of 5 years, after which a "better" solution could be achieved.

On this occasion, the delegation pointed out, in answer to such an argument, that a rapid legal decision could be taken which would define governmental interests in the planning and running of the capital of the country, whilst preserving and leaving to local government the vast quantity of normal day-to-day local tasks which exist in the capital, as in any other town, and which are the democratic functions of normal self-government.

Particularly controversial is the question of the Mayor. The Parliamentary draft makes provision for the Mayor to be directly elected by the population ie., resulting in a strong Mayor, whereas the Presidential Administration favours election of the Mayor by a majority vote in the City Council, after which the Mayor is additionally appointed as Head of the City Administration.

Beyond institutional and Constitutional questions and beyond the clash of personalities and politics lies a thinly-veiled preoccupation about control of land and property in the city, in the absence of clarity or legislation on the privatisation of municipal land.

Throughout its meetings the CLRAE delegation continued to insist that the City of Kyiv has its own administration; that there be a clear division of responsibilities between local and central government in the capital, with the latter only having a role of monitoring of respect of legality; that Kyiv should be no different in this respect from other municipalities throughout Ukraine.

The delegation also asked that new legislation on Kyiv should not only be in line with the principles of the European Charter, but also be enacted as soon as possible, and in any case before the elections foreseen for March 1998.

The future management of Kyiv may also be affected by the way in which the management of the twelve districts of the capital is decided. Under Article 140, para. 6 of the new Constitution, the "issues of the organisation and management of the districts in cities belong to the authority of city radas" . However, the twelve districts of Kyiv, all with an elected council, are nevertheless, accompanied by a "local state administration".

Central governmental control of the capital could thus be strengthened through a division of the capital into strong districts bringing about a weakening of the role of the elected Council and Mayor of Kyiv ("divide ut impera").

However, when Ukraine ratified the European Charter, no exception was made either for the capital as a whole nor for its districts. Furthermore, central government could and should not have a particularly strong interest in all the districts of the capital. Direct interventions would in any case be unconstitutional in the absence of such a special or strong interest.

b. Territorial self-government

Elsewhere in the country, elected municipal, district and regional councils still have centrally appointed administrations. Parliamentary legislation on the reform of territorial administration, in order to bring about more self-government, is still subjected to Presidential veto.

Repeatedly, the Bureau has asked that this situation be corrected. Furthermore, the Rapporteur Group and the delegation have stressed that the democratic value of free elections would be reduced, if the electorate continues to vote for councils which exercise no real control over their local administration.

c. Dual mandate

Current Ukraine legislation expressly forbids elected councillors from holding office in their respective administrations. Yet it continues to exist, inevitably therefore raising doubts as to the impartiality of councillors and the legality of council decisions. A number of the Kyiv City councillors who voted to dismiss its Head in 1997, were in this position, holding office in the City executive.

The Bureau has accordingly urged that the current provisions of Ukraine legislation on this question of a double mandate be respected and reinforced.

6. LACK OF A REPLY

To the astonishment of the Rapporteurs, the letters arising from Bureau meetings, addressed to the Ukraine authorities by the CLRAE President, have not even been acknowledged, let alone been given a substantive reply.

Nor have the proposals in practice have had any effect.

However, there have been informal discussions, eg., a meeting between Mr Haegi and the Ukraine Permanent Representation to the Council of Europe on the occasion of the Second Summit, 10-11 October.

Whilst there has been no official reply on such matters, on the other hand the Secretariat has received, since 8 September, a substantial amount of memoranda and letters from different sources in Ukraine relating to these questions - all of which has been circulated to the Rapporteurs.

7. LEGISLATIVE DEFICIT

On a number of occasions the Rapporteur Group was informed, when in Kyiv, about future imminent legislation on different aspects of local self-government. Not only did this concern a new statute for Kyiv and Sebastopol and new legislation on territorial administration, both designed to enshrine the principle of elected councils having their own subordinate administration, but also on a range of other questions:-

- municipal electoral law;
- referenda;
- local finance and tax;
- budget of municipal authorities;
- municipal land and property ownership;
- the status of elected representatives and officials;
- the role of mass-media in local life.

Accordingly, the CLRAE has addressed recommendations to the Ukraine authorities after the Vienna Bureau meeting, proposing that the law of 12 June 1997 in Ukraine on Local Self-Government, being for the moment only an outline law, should be completed by the above additional legislation and in a manner in conformity with the provisions of the European Charter of Local Self-Government;

8. PARLIAMENTARY/ PRESIDENTIAL IMPASSE

Much of Ukraine's recently political history has been bedevilled by confrontation between President and Parliament over, inter alia, questions of local and regional democracy. This situation has arisen partly as a consequence of the Constitution which gives both bodies a fundamental and key role on passing legislation, without any clarity as to what mechanisms may exist to resolve confrontation.

Whilst it is beyond the competence of the CLRAE to make proposals about modification of the Constitution, it can and should express a wish (see para. 18) that there should be better cooperation in the future in relation to local and regional self-government questions.

In its discussions, the CLRAE delegation has emphasised the separate functions and responsibilities of both sides, when it comes to implementing the European Charter of Local Self-Government and establishing the Constitutional guarantees of local self-government.

9. CONSEQUENCES OF POLITICAL IMPASSE AND LACK OF CLARITY OF COMPETENCIES

Relations between the Head and the City Council of Kyiv.

Over the last 18 months, the relations between the Head and a considerable number of members of the City Council of Kyiv have been conflictual. Some of the incidents and events in the history of this conflict are:-

- appointment and subsequent removal of Mr Kossakivskiy as Head of the State Administration;
- travel restrictions imposed upon the elected Head of Council;
- breaking into the office of the Head of Council and a permanent police presence or blockade outside these offices;
- phone tappings and blocking of communications;
- the new government-appointed Head of Administration presented as the "Mayor", with the right to sign international agreements of the City;
- non-payment of salaries of councillors and officials supportive of the Mayor;
- gradual increase of elected councillors assuming the role of administrative officials;
- decisions of the state administration for Kyiv not being forwarded to the Secretariat of the City Council;
- difficulties put in the way of associations where Mr Kossakivskiy is President (eg., League of Historic Cities).
- dispute as to whether or not the City Council has been convened correctly by the Head of Council over a period of months.

In respect of this last question, a majority of the municipal council had been meeting for some time in the absence of the Mayor, on the grounds that the Mayor had not been convening the Council properly. However, the Rapporteurs were reliably informed that the Sessions of the Council had been convened correctly by the Mayor but the majority had chosen or been asked to stay away.

"Dismissal" of the Mayor

The Head of the City Council (Mayor) of Kyiv, Mr Kossakivskiy, wrote to Mr Haegi, President of the CLRAE, on 18 July 1997 about a number of events concerned with his illegal "dismissal" as Mayor and the break-in of his and other offices on the night of 10-11 July.

Mr Haegi subsequently wrote on 21 July to Mr Kushnaryov, Head of Administration of the President of the Ukraine, seeking clarification about these events.

Additional letters were received by the CLRAE Secretariat from other members of the City Council, representing a range of different positions.

In addition, the President of the Parliamentary Assembly, Mrs Fischer, was contacted by Mr Moroz, President of the Ukraine Parliament, in which he states "In my opinion, in this situation, an arrival of competent experts of the Parliamentary Assembly and the CLRAE to Kyiv seems to be useful".

Under the new legislation on local self-government adopted in 1997, two thirds of the members of an elected City Council, under certain conditions, are authorised to dismiss the elected Mayor. By "under certain conditions" is meant particularly the absence of the City Council being convened by the Mayor in the statutory manner and within a given time period.

Such a step was taken by the largest group of the Kyiv Council on 26 June 1997 when Mr Kossakivskiy was "dismissed". However, in the view of the delegation, there were a number of factors which threw doubt on the legality of the extraordinary meeting at which this decision was taken and on the necessary two-thirds quorum required, of the legal number of 75 members of the Council (not all 75 places had been filled at the 1994 elections).

Amongst others, such uncertainties concern:-

a. If the Mayor does not convene a meeting within a period of two weeks, nor agrees to the discussion at a meeting of particular points requested by members of the Council, the procedure for examining the dismissal of the Mayor can be begun. However, the CLRAE delegation saw sufficient proof of the public convening by Mr Kossakivskiy of Council meetings, even with the inclusion of the question of his own position.

b. Such a dismissal, furthermore, is based on the new legislation of 1997 whereas the direct election of the Mayor by the Kyiv population occurred in 1994. It is not therefore certain the new framework law could be applied retroactively to this "older" election.

c. Some of the Councillors voting at the extraordinary meeting where the vote on dismissal took place, were not entitled to do so, given their tenure of official positions in the State administration of the City. Under current Ukraine legislation, they ought to have relinquished their functions as Council members.

Use of physical violence and force

In the late evening of 10 July 1997, the offices of Mr Kossakivskiy, his supporters and some members of the Secretariat were broken into by force, in the presence of some opposing members of the City Council. The police, present, made no attempt to intervene.

After this illegal intrusion, the offices were sealed with the official and personal belongings of the persons concerned still inside. The situation, despite appeals by the interested parties, remained the case up to and beyond the date of the elections of 29 March, in 1998. Although the building of 10 storeys is occupied by the City Council, the "dismissed" Mayor and his supporters only occupy two/three small offices; they are not allowed to enter their own offices nor, until very recently, to recover their personal possessions.

Accordingly, the recommendations of the Bureau after the meeting of 8 September concerned:-

- that the physical violence and force on the night of 10-11 July 1997 used to prevent access to their offices by the Mayor and some members of the City Council, be condemned and deplored;

- that, as a matter of urgency, all legal and Parliamentary measures in Ukraine be taken in order to examine the legality and the situation concerning the dismissal of Mr Kossakivskiy; and that the resulting findings and conclusions be communicated to the Bureau of the CLRAE.

The legal saga continued through 1977 and 1998.

On 1 October 1997, the District Court of Kyiv, in which the Town Hall of Kyiv is physically situated, ruled that the "dismissal" of Mr Kossakivskiy, Head of the City Council, was illegal. A copy of this decision is with the Secretariat.

Such a decision would enter into force ten working days later, ie., 14 October, if there was no appeal. There was no such appeal within the prescribed time limit.

However, a new judge agreed on 15 October, after a cursory examination of the case, to extend the time limit in which appeals could be heard on the grounds that the decision of 1 October may not have been communicated to all interested parties.

Immediately, an appeal, signed by a number of members of the Municipal City Council, was made. This appeal was subsequently declared inadmissible by the same court. A copy is with the Secretariat.

As matters then stood, therefore, the view of the Rapporteurs was that Mr Kossakivskiy should be reinstated and respected as Head of the Kyiv City Council.

Meanwhile, the offices of Mr Kossakivskiy and those of some fellow members of the City Council and of some members of staff remained sealed, with a permanent and reinforced presence of police guards.

Furthermore, approximately 50 members of staff of the municipality still were owed several months of unpaid salaries.

Finally, in January 1998, the Supreme Court decided that the judgment of 1 October 1997 of the Starokyviskiy District Court should be upheld. However, the decision was not applied.

Art. 8 of the new Constitution states that "The principle of rule of law is recognised and exists in Ukraine". However, the Rapporteurs had witnessed a number of legal decisions, including one of the Supreme Court, which remained without application or effect, thus raising the question of the respect of the rule of law in Ukraine, over and above questions of local democracy.

Lack of local self-government in Yalta

The Governor of the Autonomous Region of Crimea had written to the Secretary General of the Council of Europe about the replacement in Yalta, in the weeks before the elections of 29 March, of an elected Mayor by an unelected official appointed by central government.

This was very much an echo of the same type of situation which had existed over a longer period in Kyiv and Sebastopol and provoked concern of the CLRAE expressed in the form of a Press Communiqué.

An intimidating electoral campaign in Odessa

A series of alarming incidents in Odessa, particularly during the election campaign, arising from a conflict between the local and regional authorities, had created an unsettling and intimidating political climate.

See below paras 10 and 11.

10. THE MUNICIPAL AND REGIONAL ELECTIONS, 29 MARCH 1998

Background

At its meeting on 3 February 1998 in Lecce, the CLRAE Bureau accepted an invitation from the Ukraine Parliament to appoint a delegation to observe the forthcoming local and regional elections, due to be held in Ukraine on 29 March.

(Letter from the Vice-President of the Ukraine Parliament, Mr Muysika of 30 January 1998).

The weeks immediately prior to the elections had seen a proliferation of complaints reaching the Secretariat about the electoral campaign, for example, about a disturbing conflictual situation in Odessa; press interference; and uncertainty about whether or not there would be direct elections to the position of the Heads of Councils in Kyiv and Sebastopol.

Such considerations had therefore induced the Bureau to accept the invitation and appoint a delegation - a mission which the CLRAE, with few exceptions, normally reserved for applicant rather than member countries.

The elections

Elections were to be held throughout the country for local, district (rayon) and regional (oblast) councils and, simultaneously but separately, for the Heads of Councils.

These elections were also taking place on the same day as elections to the Parliament of Ukraine, for which the Parliamentary Assembly of the Council of Europe had designated an observer delegation.

The elections had been prepared in Ukraine by a Central Electoral Commission with the assistance of the International Federation for Electoral Systems (IFES).

The CLRAE delegation and destinations

Kyiv

Mr Alain CHÉNARD (France), Mr Calin CHIRITA (Romania), Mr Dimitrios FRANGOS (Greece), Mr Louis ROPPE (Belgium), Mr Richard HARTLEY (Secretariat)

Donetsk

Mr Ton DOESBURG (Netherlands), Mr György RINGELHANN (Hungary),

Odessa

Mr Leon KIERES (Poland), Mr Jiri VANICEK (Czech Republic)

Sebastopol/Yalta
(based in Simferopol)

Mrs Lea TOLONEN (Finland), Mr. Anthony DEGIOVANNI (Malta).

Transcarpathia
based in Uzgorod

Mr Alexander SLAFKOVSKY (Slovakia), Mr Janos PERENYI (Secretariat)

The programme for the delegation

With the assistance of the Secretariat of the Ukraine Parliament, the individual CLRAE delegation teams on Saturday, 28 March, had a programme of discussions and meetings with candidates for positions of councillors and mayors; with representatives of the principal political parties contesting the elections; with the Electoral Commissions; with local and regional administrative officials; and with representatives of the media, eg., a Round Table with the press which took place in Odessa.

These meetings were designed to provide the delegates with a maximum amount of information and impressions in order to gain as objective a picture as possible of the electoral campaign.

The day of the elections

Certainly, after a difficult electoral campaign, the day of voting must have been affected in a variety of ways, both negatively and paradoxically, possibly positively. The high participation, for example, may have occurred partly because of a vigorous and controversial campaign.

In all, the delegation of the CLRAE visited approx. 60 polling stations - at the opening of polling stations; during the day; and at the counting.

By and large, the 29th March passed without major incident and was generally considered to be successful. One of the key factors in this was the widespread presence of domestic observers from different political parties and groups - a significant safeguard against irregularities. There was also a strong interest in local issues and in the local elections. Many voters felt that it was now possible to select and not just vote.

Voters seemed to be aware of the electoral procedure. Domestic observers reported no great problem, even with the mobile voting urns taken to their homes.

The turnout of approx 70% and voter affluence resulted in some delays and phenomena such as family voting and a degree of confusion, in often the restricted space of a number of polling stations. There were even stories of electors taking their ballot papers home to complete them in peace! There may also have been some cases of influence on voting patterns of soldiers by their superior officers but at least soldiers were able to vote in civilian polling stations rather than in their barracks. Similarly, in prisons, they may have been influenced by the inevitable presence of prison personnel but it was considered by the delegation to be quite an achievement in itself for prisoners to be able to vote.

There were some reports of observers from domestic parties not being able to observe as freely as they would wish, due to restrictions imposed by Presiding Officers but these cases were ironed out by their Electoral Commission.

The main problem on the day of the election was in Odessa where, in a continuation of the electoral campaign conflict, it was announced by a court and radio, that the candidacy of Mr Gurvits had been withdrawn on 29 March, creating some confusion and requiring, in the end, a fax to be sent by the City Electoral Commission to every polling station about the maintenance of the candidacy.

11. THE ELECTORAL CAMPAIGN

1. General

There had been a considerable number of difficulties on media questions.

The Ukraine Pravda had been closed and a heavy fine imposed upon another major national daily, the Kievski Vedomostyi. There were innumerable allegations of unequal access to the media, particularly from opposition candidates, giving rise to a comment from the OSCE, in its Press Communiqué, which "called into doubt Ukraine's obligation as a Council of Europe member state to respect the rights and freedoms of the press".

On procedural matters, there were complaints about the composition of some Electoral Commissions, with excessive influence of the relevant administrations and/or majority parties in the region in question. Some complaints addressed to Electoral Commission remained unanswered and there had been some delays or obstruction in the registration of candidates.

Allegations were made to the CLRAE delegation about bias for official candidates belonging to the Executive, able to call upon resources and logistic support unavailable to opposition candidates.

A few days prior to the election there had been changes to constituency boundaries and some last-minute changes to the electoral law, considered by opposition parties as politically motivated.

The CLRAE delegation in Kyiv met the Parliamentary Committee on Electoral Infringements whose members spoke of interference by executive authorities in Commissions, bribing of voters, threats and physical violence towards candidates (the Mayor of Lubny had been shot), improper storing of ballot papers which, in a number of cases, were scattered around the electoral station in advance of polling.

Generally speaking, it was felt that the electoral law was too complicated, that there were too many elections on the same day likely to cause voter confusion and that there were too many parties contesting the election.

2. Odessa

In Odessa a highly visible and disturbing dispute between Mr Bodelan, the Regional Governor and the Mayor of Odessa, Mr Gurvits, both candidates for the position of Mayor, had coloured the campaign and created an intimidating atmosphere.

The municipal TV station "Art" had been raided and material confiscated; opposition TV's and radio had been cut off. An editor of a newspaper - Odessa Evening Post - had been murdered; there had been attempts of assassination on a municipal councillor and on Mayor Gurvits himself. The Head of a District Commission had been shot, the Chairman of another had been kidnapped and there had been occupation of the Town Hall by militia under the control of the regional administration.

There were cases of civil servants working on election procedures who were afraid to return home, who had received threatening telephone calls and whose families were temporarily relocated. There were allegations about the misuse of the judiciary for electoral purposes and, in a city where legislation on privatisation had not yet been applied, of blurred political and economic interests.

Whilst the CLRAE delegation in Odessa was careful to avoid taking sides, it was clear that such an intimidating environment would have an influence on voters. Two days before the election a local court ruled that Mr Gurvits be excluded from the list of candidates, on the pretext of his violation of rules. Neither the CLRAE delegation nor the local Electoral Commission, which maintained his candidacy, could see any valid reason for this. Then, on the day of polling on 29 March, another court decision, taken in "huis clos", withdrew the candidacy of Mr Gurvits, a withdrawal proclaimed on the day on official radio (see above).

3. Crimea

In Crimea, the attention of the CLRAE delegation was drawn to the disenfranchisement of Tartars. Although not citizens of Ukraine and, therefore, not entitled to vote under the electoral law, some Ukrainian parliamentarians felt that it could have been possible for the Ukraine authorities to enact legislation to enable such non-citizens to vote, pending regularisation of their situation.

Reference is made above to another problem in Crimea, in the electoral period, was in Yalta where the local Mayor had been replaced by an appointed official from Kyiv - a manoeuvre the subject of a complaint to the Secretary General by the Governor of the Autonomous Region of Crimea. Another problem was in Sebastopol where, as in Kyiv, there had been doubts up until the last minute for the direct election of the Head of its Council.

4. Kyiv

In Kyiv, there had been a controversial question relating to the direct election of the Head of the Council.

Beforehand, the Secretariat had received many complaints about the refusal of the President to hold direct elections to the post.

According to the general law on local government in Ukraine and the Constitution, Heads of Councils were to be elected directly by the population. In the case of Kyiv and Sebastopol for which the Constitution requires legislation on a special status, the Parliamentary draft for a new statute foresaw such elections but was currently subjected to a Presidential veto. Hence, the former legislation on Kyiv (or the General Law) was, theoretically, still applicable - also foreseeing direct elections.

The Presidential administration accepted elections only to the municipal council, with direct elections for City Head to await a new law for the statute of Kyiv and Sebastopol. The opposition candidates met by the delegation condemned such a threatened postponement as a move to maintain Presidential control over the capital.

12. DIRECT ELECTIONS FOR THE HEAD OF COUNCIL IN KYIV AND SEBASTOPOL

The weeks immediately prior to the elections of 29 March 1998 had seen an escalating confrontation between the different interests involved:

i. Parliament decides to organise the direct elections to Kyiv and Sebastopol and accordingly passes the electoral law;

ii. The Presidential administration blocks the law and the City Court issues instructions to the Electoral Commission not to register candidates for the position of Mayor;

iii. These instructions were ignored by the City Electoral Committee which continues to prepare elections and appeals to the Supreme Court.

iv. The Supreme Court decides to hear the case on 8 April, ie., after the elections, therefore causing some grounds for suspicion that the results were being awaited before the Hearing took place;

v. The Electoral Commission and most of the candidates insist that such a Hearing should not have suspensive effect on the election;

vi. Ballot papers continue to be printed and distributed and even two days before the election, banners and publicity appear everywhere in the City for some of the candidates;

vii. On Friday 27th,, two days before the election, a meeting of the Constitutional Court took place, following which the next day, ie., one day before the poll, the announcement was made of the cancellation of the elections.

The citizens of Kyiv had, therefore, been treated to a judicial and political controversy which in the end had deprived them of the possibility of voting for the position of Head of Council, much to the indignation of most of the candidates, some of whom had made local self-government a key element in their electoral platform.

13. THE ELECTIONS AND HOPE FOR THE FUTURE

Although the future is uncertain, there are signs of hope, with quite a lot of new Parliamentarians supportive of the cause of local and regional democracy.

However, unless there is legislative progress and more importantly, a reduction of the confrontation between Parliament and President, the current climate, with adverse repercussions on local and regional democracy, is likely to continue.

Whatever the outcome of these elections, the situation will not be as before. Contrary to all expectation, voter turnout was massive and the CLRAE delegation witnessed an enthusiasm and a belief that real choices were now possible.

* * *

In view of the foregoing, the Rapporteurs make a number of proposals to the Ukraine authorities in paragraphs 14 to 23 of the Recommendation, as follows:-

14. LEGISLATIVE PROGRAMME OF THE NEW PARLIAMENT

The newly-elected Parliament met for its inaugural Session on 12 May.

The Rapporteurs hope that the Parliament, as a matter of some urgency, drafts and adopts legislation on local and regional self government which is in line with the principles of the European Charter of Local Self-Government and the Constitution of Ukraine, both of which guarantee self-government to municipalities, districts and regions.

Whilst it is not for the Rapporteurs to suggest priorities in the legislative programme, it is important to define clearly the statute of Kyiv and Sebastopol and to make satisfactory arrangements for the management of these two major towns which both satisfy the interests of local self-government and the requirements of central government.

It is equally important to regulate the relationship between different levels of territorial responsibilities. Many of the problems which surfaced in the electoral campaign, eg., in Odessa, arose partly out of lack of clarity between prerogatives of regions as against those of municipalities.

15. BALANCE BETWEEN PRESIDENTIAL ADMINISTRATION AND LOCAL AND REGIONAL SELF-GOVERNMENT

The new Parliament should seek, in its legislative programme, to make a clear distinction between the role and spheres of responsibility of the Presidential administration and that of local, district and regional self-government in order to avoid in the future the sort of problems that have arisen over the last two years.

This may mean some amendment to the Constitution.

16. A NEW STATUTE FOR KYIV AND SEBASTOPOL

A new statute for Kyiv and Sebastopol is urgent.

It should clarify the respective roles of central and local government and particularly ensures that an elected Head and Council have their own administration, subordinate and answerable to them in line with article 3, paragraph 2 of the European Charter of Local Self-Government.

Recent months have seen a proliferation of various proposals and drafts. What is essential is that the two towns should have their own administration with maximum independence from Central Government and a capacity to raise revenue for the services expected by the municipal electorates and to put into practice the responsibilities invested in the two cities by central government.

The role of central government and that of local self-government of the Capital and of Sebastopol should be clearly defined by law and restrictively interpreted to avoid, as far as possible, excessive interference by government and the local state administration. The role of central government should be one principally of monitoring respect for the law and the provision of services, facilities and finance consequent upon the significance of the towns as capital and military settlements.

Equally, in the districts of the two towns, the elected councils should be independent of the state administrative apparatus and either have their own part of the City Administrative apparatus, responsible to them, or be able to avail themselves of the common city administration, responsible to the city councils.

a. Territorial self-government

It is essential that, throughout the country, the elected regional, district and municipal councils have their own administration responsible and answerable to them, in line with article 3, paragraph 2 of the European Charter of Local Self-Government.

At the moment, the Parliamentary draft Bill adopted at the last Session still is subjected to Presidential veto.

Necessarily, there must be a balance between the interests of central government and those of the regional, district and municipal councils but, for the moment, the balance is too much weighed in favour of the central Presidential administration.

The Rapporteurs recall the spirit of the European Charter, which emphasises the principle of subsidiarity and means, in effect, that the upper level of authority should only have those tasks given to it, which a lower level is not able to assume.

The current distribution of financial resources is not an argument against decentralisation nor is the actual status of state-appointed personnel, whose functions can always been transformed and transferred in proportion to the tasks, new or old, which they perform.

b. Finance

It is essential that regional, district, and local authorities have a budget proportionate to their tasks, with a capacity to raise revenue locally.

c. Privatisation of municipal land

The political confrontations of the last few years have been influenced, to some extent, by the absence of legislation on the transfer of state property to local, district and regional entities and on the privatisation and ownership of municipal land and property. This has given rise to a mix of political and economic interests, fostering a climate of mistrust, suspicion and political improvisation.

d. Dual mandates

There is legislation in Ukraine which prevents elected Councillors from holding office in their respective administrations. If such situations arise, the Councillors in question have a choice to make between the continuing exercise of a political mandate or the tenure of executive responsibilities.

It seems that it is already the case that some members of the new municipal council of Kyiv are, indeed, in this position, including the newly designated President of the Municipal Council, still currently Head of the local State administration. Choices will have to be made if legislation is to be respected.

It is essential that such legislation be respected and, if necessary, reinforced - and that the government accepts its legal responsibility for ensuring respect.

17. THE ROLE OF THE COUNCIL OF EUROPE

The Council of Europe, either through the CLRAE and/or its Joint Programme with the European Union, would be willing to assist in the preparation of the above legislative programme.

18. PRESIDENTIAL/PARLIAMENTARY BALANCE

It is essential that the Presidential administration and Parliament cooperates in a more satisfactory manner than beforehand, to ensure that the above legislation is enacted in the foreseeable future. In so doing, it will thus put an end to the lack of self-government which nonetheless is guaranteed by the Constitution.

One of the problems lies in the contradictory provisions of the new 1996 Constitution when referring to the right of self-government at all levels (local, district and regional). It is important that such contradictions be corrected, either through amendments to the Constitution or, alternatively, by an interpretation of the articles in question, guided by and in conformity with the principles of the European Charter of Local Self-Government which has been ratified by Ukraine and thus become a Constitutional right.

19. DIRECT ELECTIONS FOR THE HEAD OF COUNCIL IN KYIV AND SEBASTOPOL

Planned for 29 March, these were postponed on the eve of poll through a decision of the Constitutional Court.

Current Ukraine legislation foresees direct elections. If some other form of election is to be devised, new legislation will be necessary.

The Rapporteurs do not have a view on whether it is appropriate to have a directly elected, therefore strong, Mayor or a Mayor elected by a majority in the elected Council, ie., a somewhat weaker Mayor. Whatever the preferred solution, it is likely that the role of the Head of Council will be more significant than hitherto if a local administration is to be made responsible to the elected Council.

In any case, the Rapporteurs express the hope that correct and properly supervised elections be held as soon as possible for the position of Heads of the municipal Councils of Kyiv and Sebastopol.

20. CAMPAIGN IRREGULARITIES

The earlier part of this report refers to some difficulties encountered during the electoral campaign.

It is important that the relevant electoral and judicial authorities of the country examine the alleged and undoubted irregularities arising during the electoral campaign (intimidation of candidates, kidnapping, murder of an electoral officer, untimely imprisonment of a candidate and sundry acts of violence). It is equally important that such an examination be conducted rapidly and the results published.

21. ASSOCIATIONS OF MUNICIPALITIES

The existence of National Associations of Municipalities, with adequate finance, is an essential aspect of local and regional democracy.

They have a job of defending the interests of local and regional government vis-à-vis central government and providing a service of technical assistance and advice for their members.

These roles must be recognised if such associations are to be effective. It is equally important that efficiency and impartiality are not hampered by political affiliation.

The Rapporteurs recall that the European Charter guarantees the right of associations to cooperate internationally with their counterparts in other countries and to cooperate, in addition, with transfrontier neighbours.

22. DECISIONS OF THE SUPREME COURT

It is essential that the decisions of the Supreme Court - and, indeed, any other Court - concerning local, district and regional government be respected and applied.

So far this has not been the case in relation to the dismissal of the Head of the City Council of Kyiv, ruled illegal by the Supreme Court in January 1998. Before the elections at the end of March there was still no execution of this judgment, raising doubts, therefore, as to the existence of a genuine rule of law in the country.

23. THE NEW UKRAINE DELEGATION TO THE CLRAE

The Secretariat has now been informed of the members of the new Ukraine delegation. As with all member countries, it will be examined in terms of its conformity with the Charter of the CLRAE and a report on "Verification of Credentials" will be presented at the 1998 Session.

* * *

24. RECOMMENDATIONS TO THE COMMITTEE OF MINISTERS

In light of the foregoing the Rapporteurs wish to formulate a number of proposals to the Committee of Ministers concerning the future programme of cooperation with Ukraine, for the moment principally lying within the responsibility of the Joint Programme.

25. PROGRAMME OF SEMINARS

The Rapporteurs recommend that, in addition to the Seminars currently foreseen in the Joint Programme with the European Union and those which the CLRAE itself may be planning, the programme should also include Seminars on:-

a. the role, statute and functions of capital and major cities;

This should include an identification and definition of the interests of central government and legal clarification about its interventions.

b. the role of the CLRAE in strengthening local and regional democracy;

c. models of local, district and regional self-government in current practice in Wester, Central and Eastern European Europe;

d. local finances;

This should include an examination of municipal property questions and the economic activities of local, district and regional authorities.

26. MONITORING OF LOCAL DEMOCRACY COMMITMENTS

The Committee of Ministers has decided, as from September 1998, to examine the respect by member countries of their commitments in relation to local and regional democracy.

This report shows that there is still a continuing local, district and regional legislative deficit and that, consequently, a major effort is still to be made if Ukraine is to respect the obligations into which the country entered when ratifying the European Charter of Local Self-Government.

The Rapporteurs believe and trust that the Committee of Ministers, as part of this process, will enlist the experience and expertise of the CLRAE.

* * *

DRAFT RESOLUTION CG (5) 6 ON LOCAL AND REGIONAL SELF-GOVERNMENT IN UKRAINE

The Rapporteurs have produced this draft Resolution which calls upon the CLRAE to monitor local and regional government reform in Ukraine in the period after the 1998 Session.

This may involve additional visits of the Rapporteur Group; specific Seminars; discussions with Associations of Municipalities and direct contact with the Presidential administration; the Ukraine Parliament and some municipal authorities.

In addition, the Rapporteurs recommend that the CLRAE invite a prominent personality from the Ukraine government to speak at the 1999 Session of the CLRAE in order to give an account of the extent to which proposals contained in the 1998 Recommendation have been respected and applied.



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