UNBA warns against disproportionate oversight of self-government

Despite some good and effective innovations proposed in the new draft law on ensuring legality in local self-government, a number of its provisions contain contradictions and do not fully comply with modern requirements for the application of the European Charter of Local Self-Government.

This was noted by the Committee of the Ukrainian National Bar Association on Legal Regulation of Local Self-Government following an analysis of draft law No. 13150 of 03.04.2025 «On Amendments to Certain Legislative Acts of Ukraine on Ensuring Legality in the Activities of Local Self-Government Bodies and Officials» (hereinafter referred to as the draft law). The draft was recently adopted by the Verkhovna Rada as a basis.

No provision of the Charter obliges central authorities to establish a mechanism for administrative supervision (including the legality of decisions of local self-government bodies), but according to the Council of Europe, Ukraine is the only European country that has not regulated the system of supervision over the legality of decisions of local self-government bodies at the legislative level. Attempts to regulate this issue have been ongoing in Ukraine since 2018 and are the subject of broad discussions among various national stakeholders and experts.

Among the positive approaches proposed for use in the draft law, the following should be noted:

1. strengthening the advisory role of state bodies responsible for ensuring legality, which will be aimed at providing preventive assistance to local self-government bodies during the preparation and adoption of relevant acts (the state will be required to regularly inform local self-government bodies about changes in legislation relating to local self-government, about practices for ensuring the legality of acts of local self-government bodies and officials, and conducting preliminary consultations on draft acts upon individual request);
2. consolidating the principle of a posteriori supervision (monitoring and taking response measures regarding acts of local self-government bodies specified by law after their adoption, which is the mildest and most proportionate form of administrative supervision within the meaning of the Charter);
3. the right to appeal against local government acts that show signs of violation, exclusively in court, after the mandatory application of pre-trial response measures by the body responsible for ensuring legality (in line with best European practices and demonstrating a fairly balanced approach by the state);
4. enshrining the right to take measures in response to identified violations only by the chairman of the relevant local state administration or his deputy temporarily acting as chairman of such local state administration (this will prevent unjustified interference in the activities of local self-government bodies by representatives of regional law enforcement agencies);
5. the creation of a two-tier system of law enforcement bodies with regional and national status (also indicates a proportionate and balanced approach to the organization of law enforcement).

The main shortcomings of the draft law include:

1. conflict due to the use of the terms «supervision» and «control» in relation to measures to be taken with regard to local government acts and their officials, which should be covered by law enforcement;
2. leaving unchanged the current version of Article 16 of the Law of Ukraine «On Local State Administrations», which already provides for a system of control over the implementation of local self-government bodies at the basic level of delegated powers;
3. preserving sectoral powers for local state administrations, whose powers to control local self-government bodies will be significantly expanded;
4. granting additional control and supervisory functions to the chairmen of the relevant local state administrations who hold political office (do not have the status of civil servants and, accordingly, are not subject to the requirements of political neutrality and impartiality).

A novelty that could both greatly benefit local self-government and undermine its autonomy is the draft law’s proposal to create a Unified Register of Local Self-Government Acts as a state information and communication system designed to collect, accumulate, process and store acts of local self-government bodies and officials. Despite the overall potential benefits of such a digital resource, the purpose of its creation (to ensure oversight of legality) is not consistent with the amount of information it is to contain (all acts of local self-government bodies and their officials, not just acts that will be subject to legality oversight).

The UNBA noted that the existence of the Register of Acts will significantly contribute to the transparency of local self-government activities, the formation of a single law enforcement practice in all areas of local self-government, and the unification of approaches to administrative procedure. This approach is not unique to Ukraine and reflects the global trend towards digitisation and protection at the national level of all services related to the provision of public services or other activities of public authorities.

However, the approach proposed by the draft law contradicts the current official interpretation of paragraph 3 of Article 8 of the Charter, according to which the control (supervisory) body, in exercising its prerogatives to ensure legality in local self-government bodies, is obliged to use the method that has the least impact on local self-government. 8 of the Charter, according to which the control (supervisory) body, in exercising its prerogatives to ensure legality in local self-government bodies, is obliged to use a method that has the least impact on local autonomy and at the same time allows the desired result to be achieved. The creation of such a voluminous digital service as the Unified State Register of Local Self-Government Acts, solely for the purpose of supervising the activities of local self-government bodies, cannot be regarded as a proportionate measure on the part of the state. At the same time, the stated purpose of creating the register (oversight of activities) does not correspond to the scope of obligations proposed to be imposed on local self-government in terms of data entry and processing.

The full comments and proposals of the UNBA on draft law No. 13150 can be found at link.

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