Quality draft laws are the result of quality discussions. The team of the Reanimation Package of Reforms Coalition is convinced of this. That is why for 10 years now, the Union has been a platform for discussing the most important draft laws and acts. Administrative supervision of the legality of actions and decisions of local governments, as provided for by the European Charter of Local Self-Government, is no exception.

Ukraine is currently the only European country that lacks a mechanism for overseeing the legality of local government decisions. The current laws (“On Local Self-Government Bodies in Ukraine” and “On Local State Administrations”) do not contain detailed procedures for such oversight. In other words, there is no full-fledged mechanism for ensuring the legality of local government activities on the part of the state.

Why do communities need this at all? The uncertainty of the distribution of powers between state bodies and local authorities, the lack of effective mechanisms for cooperation and exchange of experience in implementing legislation between different communities and local state administrations do not contribute to the development of communities and territories, but instead create bureaucratic obstacles and a lack of understanding of how to implement effective policies and enforce legislation on the ground.

The situation is further complicated by the fact that the introduction of martial law has turned local state administrations (hereinafter referred to as LSAs – Ed.) into military administrations. Local governments are now required to report to the heads of military administrations and consult with them on certain issues. This procedure has further complicated and confused the regulation of relations between different levels of local self-government and state representatives.

Thus, the issue of quality legislation is urgent, which would, first, form mechanisms for supervision and control over decisions in communities, and thus strengthen their capacity, and second, clearly define the areas of competence and relationships between different levels and branches of government to ensure the legitimacy of local government in Ukraine. 

The answer may be the draft law No. 4298 on amendments to the Law of Ukraine “On Local State Administrations” and some other legislative acts of Ukraine on reforming the territorial organization of executive power in Ukraine. This draft law should clearly delineate the areas of responsibility of various public authorities in the process of ensuring the rule of law in the activities of local governments. 

However, a number of issues remain to be discussed:

1. The project is based on the current legislation, which needs improvement in terms of the delineation of powers between state authorities and local self-government bodies. As a result, most of the powers granted to local self-government bodies are recognized as delegated powers. This, in turn, allows the executive branch not only to oversee legality but also to assess the effectiveness and proportionality of the exercise of these powers, including through the funding of these powers.
2. The issue of proportional oversight: oversight should be conducted systematically only for acts of certain importance, with significant economic consequences, while others should be monitored selectively.
3. The need to differentiate between the District State Administration (DSA) and Regional State Administration (RSA), as well as the relationships between Local State Administrations (LSAs), the President, the Cabinet of Ministers of Ukraine (CMU), and each other. All LSAs should have direct management relations with the CMU as the highest authority in the system of executive bodies. They will implement government policy locally. At the same time, in the management relations between the DSA and RSA, forms such as accountability and reporting should be maintained.
4. The approach to understanding the apparatus of the LSA. The fourth version enshrines the status of the LSA apparatus as a secretariat. However, this approach will conserve the post-Soviet understanding of the LSA apparatus as a structural unit of the LSA, created to provide consultative-legal, organizational-informational, methodological, material-technical, and other support for the LSA’s activities. The LSA apparatus should be an organizationally integrated set of structural units and positions that support the activities of the head of the LSA, as well as the fulfillment of the tasks assigned to the LSA.
5. The postponement of the implementation of administrative oversight, that is, its activation only after the end or suspension of martial law, creates a problem of uncertainty for both local self-government and the state, which does not contribute to adherence to the principle of legality regarding oversight and the activities of local self-government bodies.
6. There is a problem in coordinating administrative and financial oversight.
7. The appointment of deputy heads of local state administrations: it should be carried out by the head of the LSA based on the results of a competition conducted by the Unified Commission in accordance with the procedure defined by the Law of Ukraine “On Civil Service”.

It was these proposals for the draft law that members of parliament, representatives of the Ministry for Communities, Territories and Infrastructure Development of Ukraine, the Secretariat of the Cabinet of Ministers of Ukraine, All-Ukrainian Associations of Local Self-Government Bodies, Regional State Administrations, and the expert community gathered to discuss during the national roundtable “Oversight of the Legality of Decisions of Local Self-Government Bodies: Best Practices and Prospects for Legislative Regulation in Ukraine.”

Below, we share the results of the discussion and invite you to join the conversation, as open dialogue contributes to the development of effective solutions.

This sentiment is shared by Olga Lymar, Executive Director of the RPR Coalition, who began the roundtable with a welcome to the participants and a reminder that Draft Law No. 4298 is primarily important for our state, not just to meet the requirements of the Ukraine Facility or to continue the decentralization process.

The project coordinator and advocacy manager of the Union, Olena Humeniuk, further emphasized that the issue of oversight has remained unresolved since 2016 when official oversight by the prosecutor’s office was abolished. For eight years, efforts have been ongoing to develop a balanced document that would comply with the recommendations of the Council of Europe, take into account the provisions of the European Charter of Local Self-Government, and promote the implementation of the Decentralization Roadmap.

Any changes and proposals are preceded by research on existing legislation and comparative experience that can be borrowed. The RPR Coalition, together with the expert community, conducted such research. During the roundtable, Anatolii Zaiets, Doctor of Law, Professor, and member of the expert group, presented research on foreign experiences of administrative oversight in four dimensions:

• analysis of constitutional and legal oversight mechanisms;
• legal regulation of administrative oversight in EU countries, best practices;
• oversight requirements stipulated in the European Charter of Local Self-Government and the recommendations of the Council of Europe;
• analysis of legislative initiatives, including Draft Law No. 4298.

He discussed the experience of administrative oversight in nine countries and its principles according to the European Charter of Local Self-Government (ECLSG): “Any administrative oversight over the activities of local self-government bodies can only be carried out according to the procedures and in cases provided for by the constitution or the law. The procedure for carrying out administrative oversight of local self-government must be strictly regulated, as should the legal means of such administrative oversight. Oversight should generally aim only to ensure compliance with the law and constitutional principles. As of today, most of the powers granted to local self-government bodies are recognized as delegated powers, which allows the executive branch not just to oversee but to directly control their implementation. This contradicts Article 3 of the European Charter of Local Self-Government, which defines local self-government as the right and ability of communities to, within the law, regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.”

Ihor Koliushko, Chairman of the Board of the Center for Political and Legal Reforms and coordinator of the expert group, also emphasized the importance of reintroducing the issue of civil servant status for the heads of local state administrations into the latest version of the draft law. Overall, in his opinion, the shortcomings in the current document No. 4298 have been minimized. Instead, the main goal of finalizing the draft law is to transform local state administrations into prefecture-type bodies that operate within a feedback system with central executive authorities, particularly the Cabinet of Ministers of Ukraine.

Vitalii Bezgin, a Member of Parliament and Chairman of the Subcommittee on Administrative and Territorial Structure and Local Self-Government of the Committee of the Verkhovna Rada of Ukraine on the Organization of State Power, Local Self-Government, Regional Development, and Urban Planning, provided more insight into the history of the work on the draft law.

After the draft law No. 4298 was adopted by Parliament in the first reading and revised for the second reading, a full-scale invasion occurred, and the work was postponed. “The prescribed model of oversight powers is optimal and is not a subject of broad discussion. However, regarding the principles of appointment (of heads of state administrations — Editor’s note), principles of subordination (district state administrations to regional administrations — Editor’s note), and the delineation of powers between regional or subregional levels — I am ready to engage in discussions with the expert community and talk about further improvements if possible,” emphasized the subcommittee chairman.

Nataliia Kozlovska, Deputy Minister for Communities, Territories, and Infrastructure Development of Ukraine, stated that by the end of the current year, they should develop a balanced version of the draft law that will allow obtaining EU approval as a completed task under the Ukraine Facility (Ukraine Plan) Action Plan. It is necessary to find a balance of proposals, start the processes, and see in practice how it will be implemented — and then, if necessary, make improvements.

Yurii Severyn, Director of the Regional Policy Department of the Secretariat of the Cabinet of Ministers of Ukraine, also considers the draft balanced. In his opinion, the sectoral powers of local state administrations should be preserved at least for the period of martial law and until new legislation on the distribution of powers between state authorities and local self-government bodies is adopted, so that a power vacuum does not arise. Regarding the issue of the apparatus of local state administrations, he commented: “In the current law on central executive authorities, the apparatus represents organizational powers. If we understand the apparatus to include all structural units of the local state administrations, we are substituting concepts because the apparatus, in essence, will also be the local state administration. Structural units can be of two types, with legal entity status and without. Six years ago, an attempt was made to optimize the structural units of local state administrations, but practice showed that this complicates the management structure, and therefore it was abandoned.”

Oksana Pavliuk, a representative of the Ministry for Communities, Territories, and Infrastructure Development, is confident that the adoption of draft law No. 4298 is a task not for the Committee or the ministry, but primarily for the state. According to the recommendations of the Council of Europe, oversight is carried out over own powers (in terms of legality) and over delegated powers (control over efficiency is also allowed). Therefore, according to her, in the current version of the draft, a consensus has been achieved, which was developed based on the conclusions of the Council of Europe and the amendments have been taken into account.

The Ukrainian Association of District and Regional Councils also generally supports the draft law. Its president, Tetiana Yehorova-Lutsenko, stated that the association supports oversight of local self-government in the draft law No. 4298. However, they proposed additional options regarding the accountability of heads of local state administrations and a simplified procedure for expressing no confidence in the head of a local state administration — these proposals, as noted by the participants of the roundtable, have already been taken into account.

Ihor Abramiuk, Director of Development of the All-Ukrainian Association of Communities, returned to the importance of the distribution of powers between local self-government bodies and state authorities, and between levels (community, district, region) — as they are currently absent. He drew the attention of all present to the need to also improve the law on local self-government associations, as this is a matter of balance of powers. Local self-government can balance the state only through constructive and effective local self-government associations.

Yurii Hanushchak, head of the Institute for Territorial Development, noted that there should only be direct relations between the district state administrations (RSAs) and the Cabinet of Ministers of Ukraine. The expert also emphasized that the deputies are civil servants, and the heads of local state administrations are obliged to work with those who have passed the competition; otherwise, the principle of rotation does not work.

Representatives of military state administrations were also present at the discussion. Yana Litvinova, Head of the Starobilsk City Military Administration, drew the attention of the roundtable participants to the lack of personnel in local areas and the inefficiency of coordination between various bodies, which contributes to the implementation of different practices of decision-making in communities: “But it is possible to reach a compromise, and it would be worthwhile to normalize unified standards of oversight and law enforcement throughout Ukraine.”

In conclusion, the participants of the discussion agreed that they have two months to improve the draft law, consider all positions, and consult with the European Commission: it is important to have a positive reaction from European partners to this draft law.

The RPR Coalition will continue to be a platform for these discussions in cooperation with the Center for Political and Legal Reforms, with the support of the HOVERLA Project. The Union has already planned a regional roundtable in Lviv at the beginning of October.

The event was organized by the Reanimation Package of Reforms Coalition in cooperation with the Center for Policy and Legal Reforms within the “Support for Legislative Framework and Political Dialogue on National Oversight” Project, and was made possible due to the United States Agency for International Development (USAID) and the generous support of the American people through the USAID HOVERLA Project. The content of this event does not necessarily reflect the views of USAID or the U.S. Government.