On April 18, 2018, the Shadow Report “Creation of Amalgamated Territorial Communities in Ukraine in 2015-2017” was presented at the Committee meeting of the State Building, Regional Policy and Local Government by the Agency for Legislative Initiatives.
The shadow report was presented by Tetiana Chernukha, Program Coordinator of the Agency for Legislative Initiatives. The study was prepared within the framework of the USAID Program RADA: Responsibility, Accountability, Democratic Assembly implemented by the Eastern Europe Foundation.
While presenting the research, Tetiana drew the attention to the problems connected with the legislative provision of the decentralization reform in Ukraine.
The first problem of legislative regulation of the process of amalgamation of territorial communities is the problem of formation of territorial communities around cities of oblast significance. The essence of this problem has a dual nature. On the one hand, the creation of a new territorial community with a center in a city of regional significance requires to run new elections for mayor and the city council, which in most cases contradicts the interests of the current members of the city councils and city mayors. The mechanism of solving this problem is quite simple and consists in the legislative recognition of territorial communities of cities of oblast significance capable a priori, and thus the way of the formation of amalgamated territorial communities opens by joining of neighboring rural populated areas the city territorial community. On the other hand, realizing the need for amalgamation with city communities, territorial communities of villages express legitimate concerns that in the case of joining they will not have their own budget at all, and local self-government bodies of the city community will not pay attention to their problems.
The second tangible problem that has already emerged in the process of creating of amalgamated territorial communities is the problem of ensuring the real capacity of the newly formed amalgamated communities.
In accordance with the Methodology for the formation of capable territorial communities, approved by the Resolution of the Cabinet of Ministers of Ukraine as of April 8, 2015, No. 214, the capable territorial community is territorial communities of villages (cities) which, as a result of a voluntary amalgamation, can independently or through appropriate local self-government bodies provide the proper level of services, in particular in the field of education, culture, health care, social protection, housing and communal services, taking into account human resources, financial support and infrastructure development of the relevant administrative and territorial units.
The key point here is the availability of relevant human resources, financial support and infrastructure development.
In fact, in the process of creating of amalgamated territorial communities, we deal with three types of capabilities.
- First, it is the potential or estimated capacity that communities need to have, defined in accordance with a long-term plan.
- Second, this is the capacity legally recognized by the Cabinet of Ministers of Ukraine in accordance with Article 9 of the Law of Ukraine “On Voluntary Amalgamation of Territorial Communities”.
- Third, it is a real capacity that is determined already after the amalgamated territorial community has been formed and shows certain results of its activity
In practice, potential, legally recognized and real ability coincides, as a rule, only with amalgamated territorial communities formed around populated areas, which are district centers. Instead, the creation of rural amalgamated territorial communities around populated areas that did not have the status of administrative centers immediately raises the problem of high-quality personnel provision of local self-government bodies.
Another quite controversial point in determining the capacity of the amalgamated territorial communities is the provision of part four of Article 9 of the Law of Ukraine “On Voluntary Amalgamation of Territorial Communities”, according to which the Cabinet of Ministers of Ukraine may recognize an amalgamated territorial community as capable, on condition that it is formed in the manner prescribed by Section II of this Law, around the community determined by the prospective plan for the formation of community territories. In fact, the law recognizes the possibility of legal recognition of capable territorial communities with potential capacity of only half of the maximum possible. It is clear that this is done to avoid artificial interruption of the merger processes, but on the other hand this is the way to create potentially insolvent communities.
In this context we should mentioned one of the principles of the amalgamation of territorial communities, namely the principle of voluntariness. If we analyze the relevant laws, we can ensure that voluntariness as such exists only in one aspect – in the choice of the moment of amalgamation or joining. From the territorial point of view, voluntariness is limited by the principle of capacity. The capacity of the potential amalgamated territorial communities is determined administratively by the formation of a perspective plan of community territories in accordance with Article 11 of the Law of Ukraine “On Voluntary Amalgamation of Territorial Communities”. In addition, voluntariness is limited by the administrative and territorial criterion, in particular, that the amalgamation is possible only within the existing areas.
Despite the fact that the amalgamation of territorial communities is a conditionally voluntary process, often the factor of voluntarism impedes the reform. This is especially true for promising communities, which have 2 to 3 population areas that are equivalent in their capacities, which may be the administrative centers of the amalgamated communities. As a rule, the leadership of these communities believes that the administrative center should be located exactly in their populated area and categorically rejects the idea of establishing an administrative center in another place.
Another important factor in the formation of capable territorial communities is the delineation of the boundaries of their territories, which are determined with the following requirements:
- the territory of a capable territorial community should include the territory of the territorial communities that are part of it and be inseparable;
- capable territorial communities are located within the territory of one oblast and, if possible, one district. At the same time, the law allows amalgamation of adjacent communities that are located in different areas and do not allow to restrict their legal rights.
Most often, the voluntary amalgamation of communities during 2015-2017 was in line with the long-term plan. Such an amalgamation allowed communities to obtain a new legal status of the territorial community with the powers of cities of oblast significance and direct intergovernmental relations with the state budget.
“In our opinion, 2018 should become the deadline for the voluntary amalgamation of territorial communities,” emphasized Tetiana Chernukha. “The transition from 2019 to the administrative method of forming the amalgamated territorial communities, on the one hand, should encourage those who hesitate to hurry with the voluntary amalgamation by the end of 2018, and, on the other hand, to solve the problems with the formation of the cities amalgamated territorial communities”.
“At the same time, we would recommend to the government and all involved in the reform actors not to fight the already created small and potentially insolvent amalgamated territorial communities. They should have the right to join another, more capable community. To form such a design that they consider to be the most effective. At least until the moment when the reform is completed by the adoption of the law on the new administrative and territorial system”, summed up Tetiana.