We would like to present your attention the legal expertise – Opinion CEGG/LEX(2021)2 – of the revised Draft Law “On the city of Kyiv – the Capital of Ukraine” (#2143-3).

The present Opinion was prepared in response to a request by the Chair of the Parliamentary Committee on State Building, Local Governance, Regional and Urban Development of Ukraine and provided in the framework of the Council of Europe Programme “Enhancing decentralisation and public administration reform in Ukraine” by the Centre of Expertise for Good Governance of the Council of Europe.

This document examines the compliance of the current text with the European Charter on Local Self-Government, in particular, but also with other European standards such as the Recommendations of the Committee of Ministers of the Council of Europe and with the best practice of other Council of Europe member States.

The Draft Law “On the city of Kyiv – the Capital of Ukraine”, in its current (second) version, represents a substantially revised and vastly improved text. Most major issues of concern identified in the first version have been eliminated. All Council of Europe recommendations formulated on the previous text have been addressed, albeit some only partially.

Instead of being a self-standing founding law for the Kyiv City, this text is now a draft special law to complement and derogate from the provisions of the other, general, laws. This is a commendable development, in line with Council of Europe recommendations.

However, as a special law, this draft does not include all provisions meant to ensure the respect of the European Charter on Local Self-Government, in particular regarding the administrative supervision mechanism. Such provisions should exist in the general law (future new Law on Local State Administration, on the draft of which the Council of Europe has also formulated an opinion).

It is therefore strongly recommended that the current draft law be adopted either after or as a package with the new Law on Local State Administration.

It is also recommended that the provision giving many representatives and officials of the State Administration the right to take part and express their opinions in meetings of the Kyiv council, district councils and their bodies, be abandoned.

The extent of the subsidiarity principle applied to the relation between the Kyiv City authorities and its districts should be defined in a restrictive manner in order to avoid the excessive fragmentation and lack of cohesion of urban policies at City level.

In respect of the creation of urban districts, any departure of the Cabinet of Ministers from the proposal of the Kyiv City authorities should be duly justified. 

As the current draft law does not solve the dilemma of effective metropolitan governance, this issue, which is common to several large urban areas in Ukraine, should be kept in mind for a future law.

Conclusions and recommendations of the legal expertise you could find in the final chapter of the present Opinion CEGG/LEX(2021)2 including the following.

1. It is strongly recommended that this law be adopted either after or as a package with the new Law on Local State Administration, which should set the basis for this mechanism and establish the limitations and conditions which should bring it in line with the Charter. Alternatively, the Final and Transitory provisions in this draft law should postpone the implementation of provisions concerning administrative supervision until the entry into force of the new Law on Local State Administration.
2. It is also recommended that Art 14 para 4, which gives the right to a large number of representatives and officials of the State Administration to take part and express their opinions in meetings of the Kyiv council, district councils and their bodies, be abandoned as its provisions may amount to excessive interference in and a sort of a priori supervision over local government acts.
3. In order to ensure legal certainty and eliminate expectations for an excessive decentralisation of the city competencies towards its districts, the principle of subsidiarity regulating the relations between the city and the districts should receive a legal definition. 
4. Ideally, the City Council should decide on the creation and borders of its districts. If this is considered to be impractical, any departure by the Cabinet of Ministers from the proposal of the City authorities should be based on clear and convincing arguments.
5. In case further elaboration of provisions concerning metropolitan governance in the current draft law is not advisable view that such issues may be common to all metropolitan areas, the Verkhovna Rada should keep the issue of preparing such a future law in mind for the near future.

NOTE:

The Council of Europe, through its Centre of Expertise for Good Governance, produced several documents addressing the situation of the City of Kyiv:

• In 2009, a detailed appraisal on a draft law on the same topic; that draft law was finally not adopted (DPA/LEX 7/2009);
• In 2013, a policy advice document, presenting arguments for a reform of the legal status of the Kyiv City (CELGR/PAD1/2013);
• In 2019, a Peer Review report “Democratic governance in metropolitan areas, focusing on Kyiv Region”, looking at and making recommendations concerning the governance of the metropolitan area of Kyiv (including surrounding municipalities);
• In 2019, opinions on the draft laws on the same topic submitted to the Ukrainian Parliament (CEGG/LEX(2019)4 and CEGG/LEX(2019)5).