Andreas Kiefer, Secretary General of the Congress of Local and Regional Authorities of the Council of Europe, interview with communication co-ordinator on decentralisation reform Support Decentralisation Office at the Ministry of Communities and Territories Development of Ukraine. 

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The Congress monitors the implementation of the European Charter of Local Self-Government by the Council of Europe member states. What is the position of Ukraine in the Congress rating? What are the major challenges Ukraine is facing that may hinder full compliance with the provisions of the Charter?

- Monitoring of the European Charter of Local Self-Government enables a constructive political dialogue about local and regional democracy issues with the competent authorities in each of the 47 member states and with the Committee of Ministers of the Council of Europe based in Strasbourg, France.

Following a monitoring visit in spring 2020, the Congress Monitoring Committee adopted a report on local and regional democracy in Ukraine. The 2020 report is the third one since Ukraine ratified the Charter in 1997. It welcomed the progress made through the decentralisation reform in Ukraine, including the creation of new amalgamated territorial communities who received additional competences and resources, the modernisation of the administrative territorial structure of the country, and important steps towards financial decentralisation. Ukraine also ratified the Additional Protocol to the Charter on the right to participate in the affairs of a local authority.

However, the rapporteurs expressed concern, inter alia, about the dependence of oblast and rayon councils on the local state administrations for the execution of their decisions, the absence of a comprehensive system of administrative supervision that would be in line with the requirements of the Charter, the existence of local recall procedures for local councillors, the lack of sufficient and concomitant finances available to local authorities who continue to be highly dependent on mostly earmarked grants, the inefficiency of the existing equalisation system, shortcomings in the consultation procedure, and local authorities’ shortage in specialised staff.

Due to pandemic, and the timespan between the visit and the submission of the draft recommendation for adoption at the Congress Session, an additional visit to Ukraine will be organised before the end of 2021. On this basis the report and the draft recommendation will be updated and take into account recent developments.

 

The Congress observes local and regional elections. Were there any specific commentaries and/or recommendations related to local elections in Ukraine which took place in October 2020?

- The local elections took place after unprecedented amendments and changes to the structure of local administration and election law.

This resulted in a situation where recently adopted amendments or still ongoing legislative changes created an environment for elections which was entirely new to the stakeholders. Undoubtedly, it was a remarkable feature of these elections that there was considerable uncertainty about the powers and boundaries of different elected bodies and the voters had a poor understanding of how things have changed, what the mandates of the elected councils and mayors will be, for whom they should vote and what the elections mean. The situation was clearly challenging and voter education and training for election officials should be stepped-up.

The electoral system puts independent candidates in a disadvantaged position and does not allow such candidates in municipalities with more than 10,000 voters, which is problematic from the point of view of electoral standards. This means that independent candidates, not affiliated with any party, were excluded in the larger municipalities, which runs counter to the principle that it should always be possible to nominate independent candidates. This limitation could, however, be avoided by creating a political party, and it appears that in addition to the national parties and their local branches, a large number of local parties have been created, because the total number of parties that fielded candidates was as high as 360. This limitation could also be avoided under the rule that a party may nominate candidates who are not member of the party, ostensibly independent candidates. It appears that such independent candidates on the party list would probably not be able to achieve a minimum of 25 % of individual votes, which means that the votes cast for such an individual candidate benefit the party list.

Unequal level playing field for independent candidates on local level is one of the recurring issues that the Congress has observed more generally, and it will therefore become a subject of one of our future thematic reports, while we aim to finalise a report on independent candidates and have it ready for adoption by the Congress in 2022.

Finally, the report acknowledged a positive development that some of the long-standing Congress recommendations have been implemented by Ukraine, notably voting rights of internally displaced persons, as well as, for example, labour migrants, who were, for the first time, able to register to vote in constituencies of their current residence. Regrettably, not many IDPs made use of this provision and continued efforts need to be made to improve this for future elections.

 

Apart from ensuring implementation of the Charter and election observation missions, what other cooperation activities does the Congress of Local and Regional Authorities of the Council of Europe perform in Ukraine?

-  Through co-operation projects the Congress provides practical support to address shortcomings of local democracy identified by various monitoring bodies of the Council of Europe and Congress thematic and monitoring recommendations on the implementation of the European Charter of Local Self-Government. Through its widely recognised expertise and experience in local and regional democracy, the Congress is in a key position to support local and regional authorities and their associations in strengthening their institutional capacities and acquiring new skills and knowledge.

The Congress provides a valuable platform for local and regional authorities to come together and share innovative best practices and lessons learnt. The rich expertise of Congress members is employed in peer-to-peer learning to support effective capacity building.

Thematic priorities for co-operation include:

• empowering local and regional authorities by strengthening their associations and fostering dialogue with the central government;
• reinforcing the capacities of local and regional elected representatives as agents of change;
• raising young people’s awareness of the principles of local democracy, and engaging them at local level;
• learning by doing through involvement in local initiatives aimed at improving good governance, including through citizen participation.

The co-operation activities of the Congress include a human rights approach with a focus on gender equality and the integration and protection of internally displaced persons and minorities. The aim is to strengthen the capacities of local and regional authorities in mainstreaming and protecting human rights at local level in line with the priorities of the Congress.

Based on its monitoring of local and regional democracy as well as on the observation of elections, the Congress offers its expertise to member States, and through its members, offers a pool of practical and political experiences, in particular:

• Assessment of the legal and institutional national framework;
• Contribution to the drafting of new legislation and policies
• Exchange of good practices, peer-to-peer exchanges and interactive seminars;
• Sessions on leadership for local and regional elected representatives

In Ukraine the Congress is implementing a project “Strengthening democracy and building trust at local level in Ukraine” as part of the Council of Europe Action Plan for Ukraine 2018‑2022.

The project aims to improve the quality of local democracy in Ukraine by strengthening institutional frameworks and by supporting local authorities and their national associations in their efforts to promote ethical decision-making and more citizen-oriented, inclusive and transparent local governance.

More specifically, the project is focused on support to decentralisation and the implementation of good practices of local democracy through local and international expertise and capacity-building activities, as well as peer-to-peer exchanges with the participation of members of the Congress.

 

Since 1999 when the first cycles of monitoring of the status of local and regional democracy in Ukraine began, the Congress has called on the Government of Ukraine to launch the reform on local self-government. Now that this reform is in full swing what are your overall observations on its efficiency?  In your opinion, which areas still require additional attention, efforts and resources?

- The reform of local and regional self-government is a process which has seen several phases and, in the 30^th year of Ukrainian independence, it is still not completed.  Very important issues are still under discussion and require inclusive and transparent consultation with local authorities and their national associations.

Supervision is one of those important matters that provide a scope for discussion and elaboration of key decisions needed to protect the interests of local authorities in line with the European Charter of Local Self-Government. As you may be aware, the Charter provides for the principle that administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.

While discussing related legislative initiatives, the aim should be to make legal advice available, i.e. providing an assessment with evaluation of different options to all concerned institutions, associations, or authorities about a legal matter that would affect their rights and responsibilities under the law, ensure respect of the rule of law on the whole territory of Ukraine and foster public ethics. Regulations governing supervision should not introduce hierarchical control and be politicised, it should establish a coherent supervisory and controlling setup and avoid duplication. Supervision, as stated in the European Charter (Article 8 on administrative supervision) and in a corresponding Recommendation of the Committee of Ministers of 2019 (https://www.coe.int/en/web/good-governance/-/supervision-of-local-authorities-activities), shall normally aim only at ensuring compliance with constitutional principles and with the law and not judge on the substance.

There is also the need to uphold the principle of proportionality. The law should not create cumbersome obligations for local and regional authorities and introduce a general obligation to report or collect and transmit data to supervision authorities. Finally, once established, the Supervisory Authority should have an essential protective and advisory role based on partnership with local authorities and mutual trust and act in the spirit of the European Charter of Local Self-Government.

Obviously, a distinction should be made between supervision over own and delegated competences.

Another important aspect is the consultation and the role of national associations of local authorities. National associations, as interlocutors and partners, must play an active role and exert evidence-based influence on decision-making at central level.

The right to consultation is enshrined in four different articles of the European Charter. It is additionally elaborated in more details in the Congress Resolution 437 (2018) and its Guidelines on the consultation of local authorities by higher levels of government.

The right to consultation should be guaranteed to local authorities both in law and in practice with a system of genuine political negotiation. In many countries, besides ineffective and insufficient implementation of legally established consultation mechanisms and procedures, we often witness unsystematic practice of consultation and short consultation deadlines which limit the capacity of local authorities to make meaningful and reasoned comments.

 

On May 20, 2015, the Roadmap for Ukraine (https://rm.coe.int/168071b522) was adopted. This Roadmap is aimed at implementing the recommendations of the Congress of Local and Regional Authorities of the Council of Europe on local and regional governance. How do you assess Ukraine's progress on implementation of this Roadmap?

- Notwithstanding all the achievements and developments of the administrative organisation of power in Ukraine, the reform of local self-government has not yet become fully irreversible.

Constitutional amendments are needed to ensure the sustainability and irreversibility of the decentralisation of powers and an effective democratic local self-government in accordance with the European Charter. The latest Congress monitoring report mentions these necessary steps. Once updated and adopted in early 2022, the report will be the basis for a new political dialogue between the Ukrainian authorities and the Congress. This will be the occasion to assess and update the roadmap and to jointly define clear objectives for political and legislative steps including deadlines and the inclusion of the representative national associations, such as the Association of Ukrainian Cities, and others.

 

Could you please share your general observations on the Ukrainian local self-government which were/are surprising for you, if any?

- In a very turbulent decade, Ukraine has made significant progress to better embed local and regional democracy and to complement decentralisation with representative democratic local self-government. International partners, Friends of Ukraine network, and the Congress of Local and Regional Authorities of the Council of Europe in particular, provide continuous support in achieving that ambitious goal. At this stage it is becoming even more important than ever to complete the reform process, which requires inclusive and transparent consultation with local authorities and their national associations.

I am pleased to see that more and more actors in Ukraine understand that local self-government is a complex system of inter-dependencies and multi-level interaction. It is therefore indispensable to have the complex system functioning: with the constitutional and legislative “hardware” and with the “software”, that is the elected politicians, mayors, Council chairpersons and local and regional councillors. The Congress is ready to contribute to the further development of both factors, the hard and the soft ones.

 

During the 1397^th meeting of the Committee of Ministers of the Council of Europe on March 3, 2021, you thanked the Ukrainian government for the opportunity to participate in the "great national event" of the establishing the Congress of Local and Regional Authorities of Ukraine and also in the comprehensive process of developing a new municipal code. How big is the influence of the Congress of Local and Regional Authorities of the Council of Europe on these processes? Are you satisfied with Ukraine's actions taken in this direction?

- The Congress of local and regional authorities of the Council of Europe encourages the Ukrainian authorities to continue the commitment to an inclusive consultation process with representative associations of local and regional authorities as they are the key partners in ensuring collaboration and consultation between central and local government.

The Congress of Local and Regional authorities of Ukraine is inspired by the Congress of the Council of Europe, however, we should underline that the Congress in Strasbourg is a political organ of the Council of Europe. For the nomination of its 324 members all member states must consult with their national associations of local and regional authorities, so that the members are really representing the different municipalities, cities, regions, political affiliation etc. and do not represent personal or individual interests. It is therefore the national associations who identify the representatives who speak on their behalf – in a representative and accountable manner.

If representative in its composition the Ukrainian Congress can play a constructive role in the legislative process. It cannot, however, replace the role of the constitutional organs and an inclusive consultation process.

Regarding the new municipal code, there is no “one size fits all” approach and it will be for the Ukrainians to choose their model and to fill it with life.

What unites us is the European Charter of Local Self-Government, a unique international legal instrument which enshrines the principles of local self-government and of consultation and protects local democracy and the representative associations of municipalities, cities, rayons and oblast / regions for the benefit of local communities, their residents and the elected and accountable women and men, who take up local office.