Maria Dzupyn, Policy Analyst Association for Community Self-organization Assistance
A year passed since entry into force of the Law “On Voluntary Unification of Territorial Communities” which gave an official start to increasing the number of communities in Ukraine.
Pursuant to this Law, territorial communities of villages and towns are to be united on a voluntary basis, and a Prospect Plan is to be approved for the formation of capable citizens to become a guide for communities in the process of unification.
The process of unification of communities which is new for the country affects the interests of many parties – representatives of the executive authority, local self-governing authorities and residents. Therefore, it does not occur easily. And it is natural that precedents for the resolution of disputes and disagreements in the positions of subjects engaged in the process of unification have formed.
Analysis of court judgments in this field allows deeper determination of problems, their reasons and resolution.
Study of precedents has been carried out on the basis of data from the Unified State Register of Court Judgments. Over 30 court judgments for the period from March 5, 2015 till March 16, 2016 have been analyzed.
Analysis of reasons for going to courts allows determination of two main causes:
- Violations during public discussions in the process of voluntary unification of territorial communities.
- Violations during development and approval of a Prospect Plan for the formation of territories of communities in regions.
- Violations during public discussions in the process of voluntary unification of territorial communities
The largest number of suits was on this matter. They were filed by members of territorial communities and deputies of local councils. In most cases, courts dismissed them as local councils submitted copies of minutes of held public discussions, which was the main evidence. However, as of March 2016 there are also satisfied suits, and criminal proceedings were initiated on counterfeiting minutes of general meetings by a village head.
Suits satisfied by courts include:
- Actions of the local council related to improper consideration of the village head’s offer on the unification of territorial communities were recognized illegal.
- Decision of the village head “On the Consent to Voluntary Unification of Territorial Communities” was annulled.
- Decision of the village head “On the Approval of Draft Decision of the Village Council “On Voluntary Unification of Territorial Communities” was annulled.
- Development and approval of a Prospect Plan for the formation of territories of communities in regions
Village heads, deputies of local councils and members of territorial communities went to court on this matter. In their suits, plaintiffs asked mainly to annul the decision of the regional council “On the Approval of the Prospect Plan for the Formation of Territories of Communities in Regions” in part relating to their settlement.
But none of the suits was satisfied in the analyzed court judgments since, according to the court’s conclusions, unification of territorial communities is voluntary and it does not have to follow the Prospect Plan which is recommended and optional in nature.
Analysis of court judgments can distinguish the following main problems with which plaintiffs went to courts:
- No public discussions of improper conduct of public discussions in the process of voluntary unification of territorial communities;
- No proper legal support of the conduct of public discussions on the matters of voluntary unification of territorial communities;
- Formation of Prospect Plans in violation of the legislation;
- Insufficient level of communications and improper engagement by regional state administrations of members of territorial communities, deputies of local councils, village and settlement heads in the process of development of Prospect Plans.
These problems can and should be prevented in future. The following is offered for this purpose:
First. The Verkhovna Rada of Ukraine should record legal regulation of the procedure of holding general meetings and conferences of members of territorial communities according to the place of residence, taking into account registration of the corresponding draft law in the Secretariat of the Verkhovna Rada of Ukraine under No. 2467 which is to be considered in the first reading in the near future because it is not possible to guarantee high-quality accounting of residents’ opinion during public discussions regarding voluntary unification of communities in the absence of regulated procedures for such discussions.
Second. Local councils intending to perform unification can approve Regulations on public discussions taking into account requirements stipulated by the Law “On Voluntary Unification of Territorial Communities” and duly inform all those interested about holding public discussions during the procedure of voluntary unification of territorial communities.
Third. As of March 2016, there is still a need for amending Prospect Plans. Therefore, regional state administrations together with offices of reforms and non-governmental organizations should activate this process and take into account the opinion of members of territorial communities to the maximum extent.
Fourth. Analyzed court judgments suggest frequent absence of a tradition of local councils and state administrations to discuss important matters related to the activity of communities with residents. Therefore, when they have to hold such discussions, it is done with low quality and efficiency. And residents themselves are not always willing to participate in such discussions as they doubt their real possibility to affect decisions. That is why local public authorities, local self-governing authorities, offices of reforms and non-governmental organizations should perform informational and explanatory work.
Fifth. In case of violations of the legislation in the field of voluntary unification of territorial communities, village, settlement and town heads, specialized non-governmental organizations and members of communities should turn to regional state administration.
If it does not respond in a proper way, they should file a complaint to the specialized ministry – Ministry of Regions, or appeal against such activities in court. In the latter case, one should gather evidence base and form claims with clear explanations of the problem.
Analysis of court judgments in the field of voluntary unification of communities has also showed that in some cases, judges’ conclusions are based on controversial and disputed arguments that can be attributed to somewhat imperfect legislation and absence of proper precedents in the consideration of cases of such category.