Constitutional and legal analysis of the Decision by the Kharkiv regional council of 26 November 2004 «On the measures to stabilize socio-political situation in the region»
We, the undersigned – the qualified experts in the fields of Ukrainian constitutional law, national and local governments, and other fields of law have carried out a constitutional and legal analysis of the Decision by the Kharkiv regional council of 26 November 2004 «On the measures to stabilize socio-political situation in the region» and have come to the following conclusions:
The Decision by the Kharkiv regional council of 26 November 2004 «On the measures to stabilize socio-political situation in the region» does not correspond to the Ukraines Constitution and laws.
According to Article 19 (Part 2) of the Ukraines Constitution «local governments, their officials are obliged to act only on the basis of, within the competence of, and in the way described in the Ukraines Constitution and laws.»
The analysis of the Ukraines Constitution and laws testifies that the current legislation of Ukraine does not provide regional and district councils with competences for making this kind of decisions.
The Kharkiv regional council, by making the decision –
«2. To set up executive committees of the regional council and district councils.
4. To elect E. Kushnaryov, Head of the [Kharkiv] regional council, a head of the Executive Committee of the [Kharkiv] regional council.
5. To order the Executive Committee of the [Kharkiv] regional council to establish structure, staffing of the executive committee, divisions and departments, as well as the councils administration.
6. To advise the district councils to immediately hold extraordinary sessions and establish staffs of the executive committees of district councils approved by the Executive Committee of the [Kharkiv] regional council.»
– violated a number of provisions or the Ukraines Constitution (Articles 7, 8, 19 (Part 2), as well as virtually all provisions of the Ukraines Law on Local Governments in Ukraine that define status and competence of regional and district councils.)
The substantive analysis of the paragraphs above testifies that they aim to turn a system of relations between various governmental authorities at the local level to the Soviet times – when district councils acted not in the interest of the public, but rather followed through management decisions made by their superior regional council in the first place.
In particular, the Decision by the Kharkiv regional Council regarding the creation of executive committees of district councils is unlawful, because, according to the Ukraines Law on Local Governments in Ukraine such a decision can be made only by district councils themselves. The legal decision on the creation of executive committees of district councils cannot be considered as a necessary legal basis for decisions by respective district councils.
Para 3 of the aforementioned Decision «To grant them (executive committees of the regional council and district councils) the competence of the state executive authorities and local governments» also does not correspond to the Ukraines Constitution and laws. According to Article 143, Part 3 of the Ukraines Constitution, local governments can be authorized by law with some competences of the executive authorities. So, that decision of the Kharkiv regional council is a rude interference in the competence of the state executive authorities, violates Articles 6, 19 (Part 2), 92 (Part 1, Para 12), 118, and 119 of the Ukraines Constitution, the Ukraines Law on Local State Administrations and other Ukrainian laws describing competences of local executive authorities.
According to Article 118 of the Ukraines Constitution the executive authority in regions and districts is carried out by local state administrations. The organization and competence of the executive authorities are regulated exclusively by laws of Ukraine (Article 92 (Part 1, Para 12) of the Ukraines Constitution).
Taking decision –
7. To oblige the Ukraines State Treasury Department in the Kharkiv region (R. Yeremchuk) and Ukrainian National Bank Department in the Kharkiv region (V. Kachuk) to stop transferring funds to the state budget, starting 27 November 2004.
– the Kharkiv regional council also substantially overstepped its competence.
This decision contradicts Articles 19 (Part 2), 92 (Part 2, Para 1), and 95 of the Ukraines Constitution, Article 24 of the Ukraines Law on Local Governments in Ukraine, Article 7, 47 to 50 of the Ukraines Budget Code and Law on the State Budget of Ukraine for 2004, Law on the National Bank of Ukraine.
The Ukraines State Treasury Department in the Kharkiv region and Ukrainian National Bank Department in the Kharkiv region are obliged to act in accordance with the Ukraines Constitution and laws.
Para 8 of the Decision –
...in order to maintain law and order, protection of rights, freedoms and legitimate interests, and security of residents of the Kharkiv region, to subordinate the Ministry of Interior Department in the Kharkiv region, the Ministry of Interior Department at the Pivdenna (Southern) Railway and Ministry of Emergency Main Department in the Kharkiv region along with their units to the Executive Committee of the [Kharkiv] regional council
– also does not correspond to Article 19 (Part 2) of the Ukrainian Constitution and Articles 3, 4 , and 7 of the Law of Ukraine on Police, other laws, decrees by the Ukrainian President and Cabinet of Ministers.
According to Article 43 (paragraphs 33 & 34) of the Law of Ukraine on the Local Governments in Ukraine, plenary sessions of district and regional councils deal with the following issues:
33) creation of local police, with approval of respective main departments, the Ministry of Interior departments in the Autonomous Republic of Crimea, regions, Cities of Kyiv and Sevastopol; approval of designations and resignations of local police chiefs and heads of its structural units and district police officers, filing propositions with respect to their recruitment or punishment;
34) hearing of the reports by departments of interiors chiefs on the current crime control, as well as local police chiefs on the current public security and protection of public order in the respective territory, initiating before the competent authorities issues with respect to firing those chiefs, when their work be considered unsatisfactory.
According to Article 26 of the Ukraines Law on Police the oversight for police activity is carried out by the Ukraines Cabinet of Ministers, Ministry of Interior, and, within their competences, [local] councils. The councils, while carrying out their oversight, do not interfere in its operative, criminal, procedural, and administrative activity.
An unlawful decision and that, which substantially overstep its competence, is the decision according to Para 11 – «To subordinate the Kharkiv TV & Radio Company and Kharkiv Radio & TV Transmitting Center»– because the fundamental principles of transfers of legal entities in the state property to municipal property of local communities, or to joint property of local communities of villages, townships, towns, or transfers of legal entities in the municipal property to state property are regulated by the Ukraines Law on Transfer of Legal Entities in the State and Municipal Property.
The decision to temporary cancel broadcasting by TV companies «Era,» «5 Kanal,» and «7 Kanal» in the Kharkiv region for their repeated calls to destroy the constitutional order in Ukraine (Para 12) does not correspond to the Ukraines standing legislation.
According to Article 6 of the Ukraines Law on TV and Radio Broadcasting, interference of authorities of the national, local, and regional governments, their officials, groups of citizens, individual citizens in the creative work of TV & radio organizations, as well as censorship as control over the ideological contents of the broadcasts are prohibited; only contents of the information, which is protected by the law, is controlled.
According to Article 28 (Part 5) of the Ukraines Law on TV and Radio Broadcasting, work of TV & radio organizations can be temporarily cancelled by courts decision, in cases, which are described in the election law.
The Ukrainian mass media, according to the Ukrainian legislation, are entitled to cover all aspects of activity on the part of national and local authorities. National and local authorities are obliged to provide the mass media with full information about their activity through respective informational services of the national and local authorities, to provide journalists with free access to it, with the exception of cases, described in the Ukraines Law on State Secrets, not to press them in any way, and not to interfere in their working process. The mass media can carry out their own investigations and analysis of the national and local authorities and their officials activities, assess and comment them. (Article 2 of the Ukraines Law on the Manner of Covering the Work of the National and Local Authorities by the mass media in Ukraine).
According to the Ukraines Constitution and Law on Local State Administrations, regional state administrations enjoy, probably, the widest range of authority at the local level, which allows them to effectively maintain human and citizen rights and freedoms in the Kharkiv region. However, the analysis of the decision by the Kharkiv regional council testifies that the leadership of the Kharkiv regional State Administration, after initiating its adoption, is intending to substantially change the system of public authority at the local level.
We believe that such actions could be accounted for by the intentions on the part of the Kharkiv regional State Administration to withdraw from the direct subordination to the higher and central state authorities, while practically securing all the powers both pertinent to local state authorities and local governments.
Such decisions by the local governments, merged with the unconstitutional calls for change in the territorial organization of public authority and territorial organization of Ukraine eventually could lead to breach of the territorial integrity and state sovereignty of Ukraine.
In this situation, the absolute inaction on the part of all Ukrainian law-enforcement agencies looks stunning. In turn, it becomes a stimulus to adopting even more unconstitutional and illegal decisions made by the national and local authorities and violations of the law by individual citizens of Ukraine.
In the same time, we would like to call attention of the local governments at all levels that the court rulings regarding actions or inaction by the legislative branch of the local governments is a credible legal basis for early cancellations of their authorities and setting a date of early elections by the Ukrainian Parliament.
P. Lyubchenko, Candidate of Law, Lecturer at the Department of National and Local Government, the National Law Academy named Yaroslav Mudry
F. Venislavskiy, Candidate of Law, Lecturer at the Department of Constitutional Law, the National Law Academy named Yaroslav Mudry
V. Kolisnyk, Doctor of Law, Professor at the Department of Constitutional Law, the National Law Academy named Yaroslav Mudry
M. Buromenskiy, Doctor of Law, Professor at the Department of International Law, the National Law Academy named Yaroslav Mudry