We have a pleasure to present an overview of the panel discussion: “What reforms are needed in Ukraine to secure its aspirations toward EU Membership?”, the Open Dialogue Foundation organised along with United Nations Global Compact in Poland and Kiev Dialogue on 2 October, 2015 in Sopot, Poland, within the European Forum for New Ideas (EFNI).
The summary includes comments from the EFNI panel discussion speakers, including Mr Kalman Mizsei, Head of the EUAM (EU Advisory Mission for Civilian Security Sector Reform Ukraine), as well as key recommendations on the issue of reforms in Ukraine.
What reforms are needed in Ukraine to secure its aspirations toward EU membership?
Nearly 20 months ago, Euromaidan, also known as the Revolution of Dignity, came to an end in the Independence Square in Kiev. Mass public protests led to a political breakthrough and the power was taken over by pro-democratic and pro-European forces. Its beginning stemmed from the European aspirations and great determination of Ukrainian people. These aspirations, for which a high price was paid by many, including the price of human life, gave birth to the process of a series of systemic reforms. They were to transform Ukraine into a modern state, swiftly heading towards the EU membership. The reform has been awaited by a surprisingly mature society, ready to bear sacrifices, associated with it.
Still, today, the Ukrainian public discourse is dominated by the feeling of disappointment with the slow pace of change, a lack of noticeable results or a clear time horizon in which they should appear. Acceleration in this regard, taking place in Odessa Province, where the new governor, former Georgian President Mikheil Saakashvili is pushing ahead with reform plans at the local ground, raises hopes. But, certainly, it is too early to announce the failure of Maidan and its ideas, and the situation in which Ukraine currently remains, is extremely complex. Ukraine and Odessa constitute some sort of laboratories of reform, closely watched by Russia and other countries of the Commonwealth of Independent States.
Conditions that affect the scale, quality and pace of the implemented and proposed changes, constitute factors relating to both internal situation and geopolitical environment. The success of Maidan and the realistic prospect of European membership for Ukraine have caused an active counteraction on the part of the Russian Federation, as well as the resistance of structures deeply rooted in the existing dysfunctional state organisation. As a result, they have led to a regional security crisis, due to which the Ukrainian issue has become a challenge for the European Union, but primarily – to countries of Central and Eastern Europe, directly bordering Ukraine and Russia. They have faced new challenges that force them to rethink priorities in the field of foreign policy and defence (as well as to carry out in-depth analysis for the sake of optimal allocation of resources in the area). There is no doubt that the success of Ukraine and the plan of changes, designed to bring about its integration with the EU, has also become a vital interest of Poland and many other countries in the region.
The answer to the current challenges may require persistence in carrying out the current policy of support for modernisation efforts in Ukraine. It may also require the use of the reform experience of other countries, learning on the mistakes made in the past, revisiting historical integration projects, and perhaps, also – creating completely new concepts.
For these reasons, we met in a distinguished company on 2 October, 2015 at the European Forum for New Ideas in Sopot, in order to carry out a debate, devoted to the situation in Ukraine, during which we sought answers to the following questions:
• Can new concepts of cooperation (such as the Intermarium project) be helpful?
• To what extent does the experience of reform in Georgia and Moldova is similar to Ukrainian realities?
• What should be the role and strategy of Poland, the Baltic states and the EU in the long-term cooperation with Ukraine?
We hope that this study will give us a closer insight into some key aspects of the issues, identified during the debate.
Professor Jeffrey Sachs’s speech about international politics, the EU’s limited will and capabilities to assist Ukraine, as well as the necessity of cooperation between Ukraine and Russia under the current circumstances, evoked huge controversy. We particularly recommend, therefore, a comment made by Kálmán Mizsei –the head of the European Union Advisory Mission in Ukraine, who argued against prof. Sachs’s position during a debate.
We invite you to read the study.
- Bartosz Kramek, Head of the Board of the Open Dialogue Foundation
- Kamil Wyszkowski, Poland’s CEO of UN Secretary-General Initiative Global Compact
What reforms are needed in Ukraine to secure its aspirations toward EU Membership?
Systemic reforms constitute a fundamental challenge which Ukraine must tackle on the path to European integration. They are in the interests of both the international community and the Ukrainian society which overthrew the country’s previous government through a revolution. The civilian security sector should be dealt with as a primary issue due to its sensitive nature.
- Ukraine’s main problem is the dysfunctionality of the state. The administration is perceived as a hotbed of pathology and corruption, hostile to citizens. The task of restoring public confidence in the state institutions should be primarily performed by a means of cleansing of the authorities (i.e. the process of vetting and recruitment of new personnel for public service), as well as establishing new institutions based on European standards. Ukraine is a democratic country, but it must introduce the rule of law.
- The key role is to be played by law enforcement bodies and the judiciary: prosecutor’s offices and courts. So far, they have constituted the apparatus of repression, obeying illegal orders and the political will of successive ruling elites. They have hardly dealt with law enforcement, which led to widespread impunity of perpetrators of crimes, as well as far-reaching demoralisation. Even today, these institutions are the ones to most fiercely oppose transformation.
- One must keep in mind not only the legislative changes, but also the actual implementation of laws and the subsequent compliance with their provisions.
- Constitutional reform and its derivative, decentralisation of power based on Polish patterns, is of paramount importance. It cannot, however, lead to a weakening of the sovereignty and territorial integrity of the country.
- Poland (in particular) and other post-communist countries of Central and Eastern Europe should serve Ukraine as a model for a successful transition leading to the EU membership.
- Objective difficulties faced by the Ukrainian authorities, such as the sovereign debt crisis and a conflict with Russia, should not be lost of sight, but these factors must not become a pretext to justify the abandonment of the reform.
- The EU and the whole of the international community providing assistance to Ukraine must carefully monitor the progress and assertively enforce Ukraine’s commitment to reform.
Poland, Ukraine and the post-Soviet zone. Intermarium – a new challenge for the new era?
The Polish name ‘Międzymorze’ (Latin ‘Intermarium’), translated into English as ‘Intersea’ or ‘Between-Seas’, refers to the area located between two seas: the Baltic Sea and the Black Sea. The idea of Intermarium was developed by Marshal Józef Piłsudski, the head of the reborn Rzeczpospolita, who strived to implement it after the First World War. The roots of the plan were embedded deep in the historical Polish-Lithuanian Commonwealth. The Intermarium project envisaged the creation of a federation of Central and Eastern European countries: the Baltic states (Lithuania, Latvia, Estonia and Finland), Belarus, Czechoslovakia, Hungary, Romania and Yugoslavia, sometimes, in the boldest assumptions, even the Caucasian countries were mentioned as potential members.
In the face of global turbulence, as well as regional security crisis, the idea of Intermarium (understood as an alliance of equal partners from among post-communist countries of Central and Eastern Europe) has been restored to public discourse in Poland in recent months, supported by a significant part of the Polish political elites. Most likely, developments on the Polish political scene after the upcoming parliamentary election could further emphasise its importance, thus making it a key project for Polish foreign policy.
Surprisingly, the concept also seems to gain more and more followers outside Poland – primarily in Ukraine. The Ukrainian crisis and a constant threat (as its consequence), forced numerous countries to seek new solutions and implement integration projects that would complement the already existing alliances and security guarantees. At this point, the question arises: to what extent, scope and time horizon is Intermarium a possibility in the face of current complex circumstances and differences between countries which are to form it?
• What should be the new strategic objectives of Poland’s foreign policy?
• Is Ukraine ready to forge a strategic alliance with Poland? What obstacles – on both sides – should be removed in order to achieve this goal?
• What does the Intermarium idea really mean for its potential participants and opponents?
• What are the prospects for enhanced security and economic cooperation within the area?
• Would it be possible to resurrect old integration ideas in the new geopolitical realities? Under what conditions could they be implemented?
Civilian security sector reform in Ukraine. The role of EUAM
Since the Revolution of Dignity there has been much talk about reforming Ukraine and some real efforts, in spite of the external threats, the war and the threat of financial bankruptcy, have been undertaken. While the international community is critical of Ukraine’s slow reforms, it must be aware of all the aforementioned factors surrounding the situation.. Also, lately, Ukraine has scored notable successes on both aforementioned fronts , which is testimony to improved management of at least some critical parts of the state.
Yet, if you ask entrepreneurs, foreign or local, or average citizens, the most common answer will be that very little has changed in the way the government relates to them: officials in vast majority of government functions are described as corrupt and dysfunctional. Still, criminal cases are initiated and completed with still too little link to actual crime or perpetrator. Judges and prosecutors are perceived as agents of the powerful and rich, rather than those who deliver real justice. And this state of affairs poses a problem even if one has sympathy for the enormity of multiple challenges that the Ukrainian government is currently facing. In the revolution and on the front line, people were killed in large numbers, in a fight for a better, more just state that would serve their needs, and not those of the powerful and rich.
The EUAM mission is tasked to help the government to deliver reform in the civilian security sectors, covering much of the law enforcement and justice institutions. When, in the critical months of the spring 2014, the dialogue between Ukraine and the European Union was launched, the Ukrainians expressed the need for hands-on law enforcement support. In the EU deliberations, the view prevailed that the best way to support Ukraine is to advise it on reforms in the sectors that can strengthen the law enforcement and the judiciary, so that it could better resist any external and internal threats. Practically it means making law enforcement agencies much more efficient (in prosecuting crimes committed during Euromaidan or combatting separatism in the East of the country in spring 2014), and, at the same time perceived as serving the people and upholding the law. It also means reforming the provision of justice by transforming prosecution, judiciary and the penitentiary system, bringing them into line with European practices. The agreement emerged on this basis.
Overall, efforts have been made in the subsequent period, but the critical mass of reforms and the breakthrough effect is yet to be seen. Undoubtedly, the greatest problem in the provision of the rule of law through reform is the unreformed system of prosecution being the most powerful institution in the chain – although from the moment of apprehension to passing judgment, and then, in the prison practices, all actions are still deeply rooted in the Soviet past and are very far from the European practices. The heritage of the Soviet general oversight by the prosecutors, one of the cornerstones of its totalitarian past based on fear of everyone, is a heavy one. The system has gradually changed towards the greatest source of corruption of small and large scale. Prosecution is the most important chain in the sequence of the deeply flawed criminal procedure, and, as such, at the greatest need of reforming.
When thinking of reforming justice, obviously laws/regulations are only part of the story. The current law on the Public Prosecutors’ Office is a significant step forward, although the constitution needs to catch up in order to close a legal gap/ contradiction between the law and the constitution. However, the EUAM’s regional experience shows that there is also a huge gap between law and practice. Both in the criminal and the civil procedure, the law is systematically violated. As stated by Roman Romanov, the author of a current study on the practices in the police stations, practice is dictated predominantly not by the law, but by tradition, understood as the tradition inherited from the Soviet times. Detainees’ rights are violated in every respect, therefore, justice inevitably suffers. In practice, prosecutors’ power is still overwhelming in criminal proceedings. Decisions on verdict are often made before (or rather: instead of) the investigation. Free legal aid centres, as a new phenomenon, exist, but they are frequently disregarded. Prosecutors rarely even bother to answer their questions, judges follow the prosecutors’ guidance rather than an impartial scrutiny of the cases in which the defence lawyers usually play the inferior role. Investigations are rarely carried out, as the verdict is known in advance. In other words, the criminal investigation is often rather a political process where the stronger – financially, politically – wins. Another aspect of the process, cementing in bad practices is that, , a statistical approach to criminal cases, which was inherited from the modestly reformed Soviet past, still prevails in most parts of both the police and prosecution. Target numbers must be delivered as evidence that the job is done well.
Thus, much is needed simultaneously – the completion of the legislative change, particularly the judicial part of the constitutional changes, and, at the same time, concrete implementation of the reforms.
Much has been written about corruption being the largest enemy of the country. While corruption is, undoubtedly, one of the greatest enemies of Ukrainian statehood, the focus of internationals as well as the public is often too simplistic and concentrates solely on the repressive part of the phenomenon. The government has made first attempts to address the issue, but again, many different things would be required simultaneously, if one wished to achieve a real change here. The National Anti-Corruption Bureau is established but it takes time for its detectives to become part of a functional system, aimed at clamping down on corruption. They have to learn the profession that didn’t exist in the past; NABU needs to remain independent from political interference; and the rest of the investigation chain needs to ‘catch up’.
A large part of this requirement to ‘catch up’ is to select anti-corruption prosecutors, as stipulated in the law. Here again, there has beenmuch tinkering with the membership of the selection committee itself. The international community has voiced its unease with the selection by the PG of its 4 members as PGO delegates. Civil society and internationals have expressed their dissatisfaction with this fact. While the prosecutor general failed to dismiss its members of the committee, the Parliament electedmuch more credible 7 additional members; we are monitoring the election process and hope for a credible outcome.
Delineation of investigative functions and establishment of the State Bureau of Investigations, as stipulated in the Criminal Procedural Code, is yet to be accomplished. A legislative act on delineation has been drafted (with our input), and is waiting to be sent to the Parliament.
Besides the aforementioned legislative package (again, including the constitutional changes required in the judicial area) practice needs change. To this end, it is indispensable (but not sufficient) to determine the appropriate salaries for the positions of judges, prosecutors, investigators and detectives. At the moment, low salaries in this chain (except that of the NABU detectives) is preventing a serious tackling of corruption. Just recently, the Cabinet of Ministers left the salaries of prosecutors unchanged at the level of 2012. It renders the base salaries of prosecutors in the local offices, currently undergoing massive rehiring, at paltry 60–100 euros. This level of remuneration (even if the extras for 13th month, for scientific degrees and languages spoken, mostly highly irrelevant to the job, are added) triggers activities aimed at gaining extra revenues, and creates a risk, in the case of prosecutors, tthat the otherwise promising election of new prosecutors in the reorganised local offices will be annuled. Simply put: with base salaries established at the level of 60 to 100 euros, it is unlikely that honest professionals will join the ranks of prosecutors.
Second, it is imperative that internal self-cleaning mechanisms of these organisations be established. Third, human rights institutions need to be strengthened so that the currently practiced systematic violations of the criminal procedures would be eliminated. People need effective defence from the moment that charges are brought against them, so that phoney accusations, working to the benefit of business or other interests, could be pushed back. Today, they most frequently dn’t get this chance. And the same is needed in civil cases. Thus, free legal aid centres need strengthening.
Corruption is not only prevalent in the civilian security sectors described above, but it is also widely spread in the whole of public administration. After long prevarications, works on the civil service law have been accelerated.
Police is important in that a) it is in the frontline of providing justice and b) it is going to be inevitably vital in providing justice in criminal cases. The first noticeable change that has been introduced, a kind of a laboratory for bigger issues, is the establishment of the patrol police for Kyiv, subsequently mirrored countrywide in large cities. It has been the first visible success in the Civilian Security Sector. Here again, factors such as: a change in the legislation, replacement of personnel, a new organisational ethos and aprropriate salaries, were all combined to secure the prompt success of the change. Sustainability will require continuous training, continuous internal controls in order to make sure that these new employees do not fall into the bad habits of the DAI (GAI). But its virtue is really that it is the first reform of this kind and it serves as the model of change in other areas. The EUAM is an active partner in the implementation of the Law on National Police and we hope for an energetic implementation indeed. A less glamorous but equally important was the change in the more rural districts, the so called “model police station”, designed with our assistance; currently, it is being spread.
The expected start date of implementing the new Law on National Police is 7 November , 2015, 3 months after its promulgation. Much needs to be done and preparations are not well advanced for this law to take effect. Deficiencies are clearly visible if one looks at the events of 31 August, 2015 in front of the Parliament, which took the lives of three National Guard members. Clearly, riot police also needs reform. The bulk of reform in the law enforcement agencies, including police, has yet to be seen.
Comment to Sachs
Professor Sachs’ contribution to Polish reform in our region is invaluable. And so are his tireless efforts to help Africa and to promote a kind of a global system of poverty alleviation through the Millennium Development Goals and, now, the Sustainable Development Goals of the United Nations.
However, his position on Ukraine’s situation, presented during this conference, is flawed in two very significant ways. First, his message that Ukraine needs to be in good terms with its Eastern neighbour, while undoubtedly correct in literal sense, is both morally and intellectually, very problematic in the context of Russia’s aggression in the Eastern parts of Ukraine and the illegal Russian annexation of the Crimea. Professor Sachs did not say a word about Russias’ role in making this neighbourhood uneasy. Obviously, one should not put the sole responsibility on the victim to be in good terms with its aggressor. Ukraine, obviously, wants to be a good neighbour but ,currently, it’s being subjected to aggression from its neighbour. Moreover, Russia is waging an economic warfare against Ukraine with the aim of destabilising it. None of this was mentioned by professor Sachs in his intervention. With his global prestige, a balanced contribution could have been very helpful.
Second, professor Sachs expressed doubt whether reform for Ukraine is the main domestic issue. He didn’t say explicitly, but, similarly to the first case, his contribution carried an impression that reform was not important, while industrial policy was. He used the Polish example in a way that was false. He knows about it, and I know, , as we both worked on the early Polish reforms. In fact, I had the enormous privilege to work with him in Poland. In the case of the 1990 reform in Poland, the reform was everything, while industrial policy was nearly non-existent. It is true that he made a very effective intervention with ABB and it contributed to ABB’s early investment in Poland, giving a much needed vote of business confidence in the reform. Such vote of confidence would be much needed in Ukraine as well. One would hope that Professor Sachs could contribute to such industrial investment if he dared to put his prestige on the line in order to support Ukraine, instead of planting seeds of doubt regarding Ukraine’s efforts each time he talks about the country.
But more importantly, one case doesn’t make an industrial policy and he is aware, just like we all are well aware of the fact that, unlike in Hungary, in Poland foreign investment started to appear on a noticeable scale only in 1994-95. It was the reform, and the generated domestic investment that carried the day in Poland prior to that date. The truth is that reform matters vitally in the case of Ukraine now. And so, Professor Sachs’ support for the efforts made by Ukraine is so un-understandably lacking at the moment.
- Kalman Mizsei, the head of the European Union Advisory Mission for Civilian Security Sector Reform (EUAM) Ukraine
Reform in Ukraine is impeded by the ‘culture of corruption mechanisms’
Polish people are best placed to understand the need for reform in Ukraine, as this is the place where all changes also emerged as a result of a peaceful revolution by ‘Solidarity’. Even in other countries, reform was carried out as a result of the revolutionary change in Poland. Reforming the system is very difficult due to the generally prevailing ‘culture of corruption mechanisms’, strongly rooted in the Soviet system. The fight against corruption is among the most important challenges, faced by the Ukrainian state, as it is the core of pathologies that afflict it.
In the Corruption Perceptions Index by Transparency International in 2014, Ukraine ranked 142 of 174 countries surveyed, yielding 26 points in a 100-point scale, with 0 being the most corrupt, and 100 – the least. In October, 2014, Ukrainian parliament approved a package of anti-corruption laws. In order to combat corruption, it is necessary to implement different measures: changes in the law, greater accountability, rejection of political interference, more efficient control, as well as higher salaries in the judiciary, prosecution bodies and police.
The EU Advisory Mission in Ukraine (EUAM), acting under the Foreign and Security Policy, was established in late 2014 on the initiative of Poland, Great Britain and Sweden. It is designed to advise the Ukrainian authorities on the planning and implementation of reform in the civil security sector, including the police, prosecutor’s offices and the judiciary. These structures are among the most dysfunctional and corrupt. The prosecutor’s office was the backbone of the old system. That is why its cleansing (which is to be achieved by the process of vetting, i.e. verification of personnel in terms of their loyalty to the state and their possible involvement in illegal deeds involving corruption), reduction of powers, increasing the transparency of the operation, and trimming staff (public bodies are currently overstaffed) are tasks of vital, fundamental importance.
The problem is deepened by a lack of understanding of the concept of public service; thus far, buying and selling positions in the state administration has been commonplace in public structures. Excessive bureaucracy has to be drastically reduced, and when this happens, the effect should translate into faster decision-making, as well as an increase in salaries of civil servants, and, as a consequence, a decline in the attractiveness of illegal practices.
The EUAM received a mandate for two years’ operation, but the scale of the challenges that it has faced in Ukraine, could bring about a situation where much more time would be needed before it would be possible to announce that Ukraine has reached a turning point in this matter.
The number of reforms must generate a critical mass and, as a result, make the change irreversible. It is a difficult and long, but necessary process. In Ukraine, we saw the so-called ‘Revolution of Dignity’. This name is not accidental: people demanded a clean, uncorrupted government. Efforts to strengthen the security and defence of the territorial integrity of the country will be easier if Ukrainians support the government. But it will only happen when the reform, expected by society, is consistently implemented. The conflict in the east of Ukraine cannot become an excuse for abandoning it, as it is only through a strong state, reinforced by the reform that will be able to end this crisis. Reform is the task of Ukraine, but international support in this process may greatly contribute to its success.
Alongside financial assistance and advisory services, it is important to also cancel visa restrictions for Ukrainians. This will be feasible if appropriate conditions and criteria of the EU are met by the Ukrainian authorities.
A strong Ukraine is in the interests of Polish business
Ukraine is currently undergoing changes that will decide its future for many years to come. It sounds like a cliché, but it is true that the crisis that the state is currently plunged into, creates not only threats, but also opportunities for business. Economic integration with the EU creates such a chance. In 2014, Ukraine signed an association agreement, thus clearly indicating the strategic direction of its further development.
Poland, the largest western neighbour of Ukraine, has already walked the path. We signed the association agreement with the EU in 1991. When the Soviet Union collapsed and the Council for Mutual Economic Assistance was disbanded, we lost eastern markets for many subsequent years. The economic situation was dire, but our business simply had no choice – it had to undergo restructuring and seek partners in the West. The pre-accession funds were launched in 2000. The process of adjusting national law to the EU legislation began in 1995. In 2004, we became a full member of the EU.
The great European market and the EU funds, the largest beneficiary of which was Poland, changed our country, law, infrastructure, economy and business. Today, Polish GDP is more than 3-4 times higher than the Ukrainian, although in 1991, the two countries were almost at the same level of development. In 1991, Polish GDP amounted to 83.9 billion dollars. In 2013, it amounted to 525.9 billion dollars. Within the same time period, Ukrainian GDP has only grown from 77.5 billion dollars to 177.4 billion dollars (according to the data presented by The World Bank).
The structure of our economy has also changed; major state-owned enterprises went bankrupt or had to undergo restructuring. Currently, more than 70 percent of our GDP is generated by small and medium business. Today, Poland and Germany are the largest economic partners for each other. In 2013, our trade amounted to more than 91 billion dollars. It’s not only thanks to German car factories in Poland and Polish buses in Germany, but tens of thousands of links in the SME sector on both sides of the border (for the sake of comparison, trade between Poland and Ukraine has only reached 6.6 billion dollars in 2013, and 5.7 billion dollars in 2014, according to the data of Ukrainian Statistical Office).
Ukraine is at the beginning of the same path. There is no reason why Poland and Ukraine could not become partners as close as Poland and Germany. Finally, Ukraine can begin to develop rapidly and consistently – like Poland in the 1990s, Ukraine needs support today, but this support cannot be reduced only to subsidising the budget of corrupt and dysfunctional state inhabited by more and more frustrated people.
Ukraine and Ukrainians are in need of money, but they need to learn how they can make money in the new geopolitical conditions. Ukrainian companies need to create added value for Western partners and, in the longer term, to become reliable for foreign investors. Ukrainian economy and Ukrainian business have great potential which must be released and harnessed for work in accordance with European rules and standards. And, given the current situation, there is no time to lose.
Reduction of the gray economy and development of entrepreneurship will become possible provided that a wide-ranging deregulation is carried out. Poland can offer support in each of these areas. Systemic reform and the pace of the changes depend, however, on political will. For this reason, it is so crucial to exert public and international pressure on the government. However, business suffers losses or earns every day. Therefore, contacts between entrepreneurs in Ukraine and their potential partners abroad must be established today, in their own way. The state must change, from the top down and from the bottom up, due to activities of citizens, including entrepreneurs.
The huge potential for growth is also tourism and, obviously, the agrarian sector. Historically advanced Ukrainian defence sector can successfully cooperate with Polish companies which are preparing to participate in major projects aimed at modernisation of our armed forces. Now, orders placed by Poland’s Defence Ministry constitute the greatest share of armaments procurement in the EU. In the long run, it also awaits Ukraine, and the current conflict will push the country towards the upgrading and replacement of equipment on a large scale. The transfer of technology and joint projects by both countries can become mutually beneficial, as it can increase our (i.e. Polish and Ukrainian) competitiveness on the international market.
Investments in infrastructure constitute a separate issue. Today, it seems to be a distant and uncertain future, but – especially when the crisis in the east of Ukraine is over – the agenda for its further development is clear.
A strong Ukraine is not only an investment in our own security, but also in our national, Polish business. Ukraine will not be strong so long as it is kept alive thanks to grants and loans from abroad. Ukraine will be strong, stable and secure when Ukrainian business integrates with Europe, so the state would be able to balance its budget and work towards fast economic growth.
Poland can and should be Ukraine’s guide and supporter in this way. It is due to the fact that Polish companies also need new and growing sales markets. Also, by putting their trust in Ukraine, other European countries may later compensate for their losses resulting from the disruption in trade with Russia. Consumer appetite of Ukrainian people, in conjunction with the size (45 million inhabitants) of domestic market are a challenge, but also an opportunity that we cannot squander. That is why we need each other.
- Bartosz Kramek, Chairman of the Open Dialogue Foundation
The text was published on the Forbes.pl online portal on 20 May 2015.
Commentary on the draft amendments to the Constitution of Ukraine in the field of decentralisation of power
The draft constitutional amendments on decentralization of power, submitted by the President to the Verkhovna Rada, provide a chance to introduce a fully-fledged self-government in Ukraine. This project is a result of dozens of meetings, conferences and discussions held over the last year with the participation of Polish and Ukrainian experts. The document brings together all the basic principles of local government organisation which are recommended by the European Charter of Local Self-Government and which formed the basis of both local government reforms in Poland, in 1990 and 1998.
It is worth noting that the draft amendments, filed by the president, introduce innovative principles, hitherto unknown to the Ukrainian legislation. They include the principle of subsidiarity, which means that the powers are transferred to the level of government (which is as close as possible to citizens) that can perform the given tasks most effectively, along with financial independence of local governments, which will carry out management of part of the tax revenues and will have their own property and real estate. These rules are in full compliance with the standards of democracy, the European principles of self-governance, and they fully correspond to the legal practices of most countries in Central and Eastern Europe. The decentralisation reform in Poland was carried out in accordance with the same principles, and it is considered to be the pattern of change in the local government system.
Discussion with the participation of Ukrainian experts and civil society activists led to the presentation of an innovative solution: the introduction of a position of prefects having constitutional mandate. Prefects will be representatives of the central administration locally. However, it should be emphasised that their authority over local government bodies will be limited to only one task: the verification of legality of decisions issued by local authorities.
Why is the control of legality needed? If, say, local governments wish to sell a redundant building or property, they decide to who they will sell it and at what price, but they must do it in accordance with public procurement rules. If they fail to comply with these procedures, then the prefect interferes in the process and blocks he transaction. It should also be emphasised that in the event of a dispute between a commune and a prefect, it is settled by independent court.
Similar rules apply in the laws of other European countries. In Poland, analogous functions are fulfilled by a Voivode (regional governor), who heads the government administration at the level of voivodeship (region).
Another proposed provision, which met with criticism from the Ukrainian side, is as follows: the Constitution will allow temporary suspension of powers of self-government by the President and referring of the case to the Constitutional Court in the event of violation of the fundamental law, a threat to national security or independence, or territorial integrity of Ukraine. I believe this solution is logical and understandable for a unitary state. This kind of presidential powers do not infringe the autonomy of local governments.
Until now, citizens could elect local authorities, but officials, i.e. the executive apparatus providing services to the local government bodies, were part of the public administration, hierarchically subordinate to the president. Now, the government will consist of councils establishing local law and having its own executive apparatus. In the areas in which officials are currently subordinate to the President, they will be largely subordinate to local authorities. In Poland, as a result of decentralization, over two-thirds of civil servants subordinate to the central authorities, were transferred to the local government administration.
Numerous discussions have been held on the issue of administrative and territorial structures. I have no doubt that 10,500 communes (gromadas) that currently exist in Ukraine is definitely too many. Among them, there are many small administrative units that are so tiny that they are not able to perform all tasks of the basic local government level. In the current year, activities were carried out in order to bring about voluntary merger of communes and some success has been achieved in this field. Now, the Constitution will give Parliament fully legitimate powers to designate the boundaries of territorial units of communes, regions and provinces, of course, taking into account the views of the residents of these communities.
The adoption of these amendments to the Constitution is, undoubtedly, an essential factor needed for the implementation of the reform which is going to establish a new type of self-government in Ukraine, but it’s not the only one. The introduction of the principle of subsidiarity, mentioned in the project, requires reviewing of the whole Ukrainian legislation and the distribution of powers between the central government and various levels of local government.
Another challenge is to ensure an adequate level of funding for all types of local government units. The Budget and Tax Code, approved in 2015, which refers to decentralisation, is of experimental nature. It is necessary to monitor and analyse the effects of its application, as well as to carry out simulations with a view to creating the most stable financial conditions for local governments in the coming years.
In closing, I would like to mention another issue: at various meetings, Ukrainians frequently ask me how it is possible to carry out decentralisation reform in the face of the annexation of the Crimea and the Russian aggression in the East? My answer is always the same: Ukrainian society cannot become a hostage to Russian aggression. Most of the territory of Ukraine is now controlled by the Ukrainian State. If the local community does not receive at least minor capability to independently solve their own problems, frustration among citizens will only grow. Now it is high time that the local communities themselves became able to manage local processes, thereby bringing Ukraine towards its European future.
On 16 July, 2015, the Verkhovna Rada adopted the chapter of the Constitution, filed by the president, which is going to open the way to a true self-government. Ninety percent of solutions are drawn from the Polish model: the principle of subsidiarity, separate own powers, own finances and assets, supervision, aimed solely at verification of compliance with the law. The biggest controversy was caused by solutions regarding the Donbas and the subordination of the prefects (provincial governors) to the president.
Now, the chapter will be referred for evaluation to the Constitutional Court, and at the autumn session, two-thirds vote will be needed to achieve its final approval. The October 2015 local government election will be still held in the old territorial structures. Following the introduction of the new rules and possible consolidation of communes and regions, the next local election will be held (it is scheduled for 2017)”.
- Marcin Święcicki, coordinator of the group of Polish experts on local government reform in Ukraine, Member of Parliament, Mayor of Warsaw in 1994-99
The text was published online at: www.swiecicki.blog.onet.pl on 13 July 2015.