Ph D in Law Boldirev S.V., Salivon G.

The National Law Academy of Ukraine named after Yaroslav the Wise

Aspects of improvement of the competence of regional local self-government bodies and local state administrations

Organisation of public authority at the local level in Ukraine is arranged according to the continental model, when on the middle level of the administrative-territorial structure local bodies of the state executive authority and local self-government bodies coexist. It causes necessity of close interaction between local state administrations and representative and executive bodies of local government. The necessary precondition of such interaction is accurate delimitation of functions and powers of the bodies mentioned as well as determination of their competence.

Many authoritative scientists have been engaged in problem of existence and interaction of local self-government bodies and local state administrations, but legislator, to the greatest regret, does not pay attention to scientific works and achievements of modern science.

The local self-government in present-day Ukraine is not the result of the masses’ initiative but that of the political decision of the national elites. For this reason some scientists call territorial communities a category which is rather legal than sociopsychological. The population united by common place of residence does not feel like a community, does not feel common interests and needs, and each member of the community tries to realise personal interests and needs individually, without making use of collective forms of action; citizens disagree to make their labour or financial contribution to a common case. However today there are evident tendencies of more positive attitude to elementary measures as to satisfaction of needs of the population in the place of residence (for example, illumination and protection of entrances; creation of association of proprietors of apartments of many-storeyed houses, etc.). But the state does not wish to lose its positions as regard to the control over affairs in administrative and territorial units. These and other reasons explain the present situation in the sphere of relations between local self-government bodies and local state administrations.

The competence is a legal framework which consists of two constituent elements: powers, i.e. the rights and duties of the certain subject, and object of its authority, i.e. sphere of application and realisation of the rights, and also of discharging of the duties which are available to the given subject.

The competence of local self-government bodies and of local state administrations is based on principles of branch competence, and in science of state building (development) it is offered to divide it into the following kinds: 1) the exclusive competence of local self-government bodies (councils, partially their executive bodies); 2) the adjacent competence (local self-government bodies and local state administrations are entitled with powers in one area of public life, but have different objects under the competence); 3) the exclusive competence of local state administrations. There are also other criteria of classification of the competence.

It is probable that the legislator differentiating between functions and powers of two "branches" of local authorities intended to provide conditions for their separate functioning, but this attempt is ineffective due to existence of the wide adjacent competence. Furthermore, powers which are a part of the adjacent competence often simply duplicate each other in full or in part. For example, paragraph 5 part 2 article 31 of the Law of Ukraine «About local self-government in Ukraine» assigns to local self-government bodies «the organisation of protection, restoration and use of monuments of history and culture, architecture and town-planning, complexes of palaces with parks, country estates complexes, natural reserves», and paragraph 4 part 1 article 20 of the Law of Ukraine «About local state administrations» states, that local state administrations «organise protection, restoration and use of monuments of architecture and town-planning, landscapes of palaces with parks, parks and of historical and cultural landscapes». On the basis of the above-mentioned issues it is possible to draw a conclusion that local executive bodies at level of districts and regions are entitled to perform powers which at level of settlements to a considerable degree are carried out by the executive committees of corresponding councils. Almost half of the matters allocated to the competence of state administrations, as a matter of fact are questions of local importance. It is caused by the fact that district and regional councils do not have their own executive bodies with such great powers as those of the executive committees of cities, settlements and villages. For this very reason district and regional councils have to delegate considerable amount of powers legislatively given to the bodies of local self-government to local state administrations. As a result – borders between state and municipal authorities are becoming unclear, in administrative-territorial formations direct state rule is actually carried out, and the local self-government at level of areas turns to the declaration.

The legislation which defines the competence of local self-government bodies and local state administrations is in extreme need of considerable changes today. The basic directions of reforming of legal base of activity of these bodies have been established by the Conception of modification of Laws of Ukraine «About local government in Ukraine» and «About local state administrations», approved by the order of the Cabinet of Ministers of Ukraine of the 1st of March, 2001. In this document it was offered to make changes with respect to accurate definition of concept «questions of local importance» which the legislation attributed to the competence of territorial communities and which are decided directly by the community or through the created local self-government bodies. For the purpose of decentralisation of the state services a part of the powers of the central bodies of executive power should be given to local self-government bodies (for example, insuring of the education development, the general medical aid, performance of regional programs of public health services, motherhood, the childhood, etc.). In this connection there is a requirement for legislative definition of realisation by local state administrations of the control over realisation by local self-government bodies of the "transferred" powers. It will give opportunity to improve quality of the state and public services offered to the population as well as responsibility of local self-government bodies. In addition it was offered for that purpose to assign to local state administrations power to suspend operation of statutory acts of local self-government bodies and their officials on the grounds that they do not conform to the Constitution and laws of Ukraine with a simultaneous recourse to court. It was supposed, that with formation of complete system of regulation of social and economic processes executive and organizational functions of local state administrations will be reduced, and the supervising component of powers – will extend. However, at present the given changes in laws have not been made.

The insufficient legislation has put local state administrations and local self-government bodies in conditions of actual opposition or subordination of one system of public authority to another. We suggest providing the executive machinery of regional and district councils with such powers which would allow realising of the decisions made by corresponding council. But for all that regional councils should solve only the general questions of several district and city (cities of regional importance) councils, and district councils - in city, settlement or village councils. That is the main function of local self-government bodies at regional and district levels is coordination of efforts when deciding the general questions of local importance. It excludes necessity of giving to regional and district councils of executive powers which would have the same considerable range of powers as those of the executive committees in city, settlement, village councils.

In our opinion, it is expedient to vest powers of control over activity of local self-government bodies in local state administrations, moreover not only at regional and district level, but also at level of cities, settlements and villages. But concerning control-operative powers (suspension of force of local self-government bodies’ acts) it is necessary to be very cautious and moderated as rash actions in the decision of such delicate question can lead to blockade of activity of local self-government bodies by public authorities on local level which will be contrary to interests of the state. For this very reason it is possible to vest in local state administrations powers of control over activity of local self-government bodies at all levels with the right, and simultaneously it will also be their duty, to refer to court with valid claim in the case of violations of the current legislation by local self-government bodies. In other words, it should be specified in the claim what exactly local self-government bodies have broken while carrying out their activity. And the court on the basis of the petition of representatives of local state administration can suspend the operation of local self-government body’s act, and, after a judicial investigation, to cancel or renew its force.

Thus we differentiate the competence of local bodies of the state executive power and local self-government bodies in such a way that there will be no spheres where nobody assumed responsibility, and matters for which several bodies of public authority bear responsibility simultaneously. Besides, the possibility to "unload" the central government bodies will appear, as questions of local importance will be decided by local self-government bodies, and the state will be able to supervise legality of their activity, and at the same time it will also solve problems of delimitation of functions and powers of these bodies of public authority, delegation of powers and decentralisation of power which are issues of the today.