What can businesses expect from the next territorial reform? What problems for government bodies can the new zoning lead to?
On July 17, the Verkhovna Rada adopted a Regulation “On the formation and liquidation of districts” No. 3650, which reduced their number by more than three times. The existing 490 districts are being liquidated and 136 new ones are being formed.
As indicated, the reform will change the powers of state bodies and how it can affect the activities of business, Viktor Zaletin, a lawyer at ESQUIRES law firm, told to Mind.
At first sight a purely territorial reform will radically change the approaches to territorial powers of state bodies and not only. This can complicate both the functioning of the business and the life of ordinary Ukrainian.
Clause 6 of the Regulation obliges the Cabinet of Ministers of Ukraine and other executive authorities to bring their own normative legal acts into compliance with this Regulation. That means that the laws of Ukraine (such as those adopted exclusively by the Verkhovna Rada) shall be amended separately, which has not yet been initiated. It should be noted that that the law has supreme force according to the Resolution (even the resolution of the Verkhovna Rada), therefore, without amending the laws, the resolution will not work.
If on October 17, 2020 (exactly three months from the date of the adoption of the Ruling, were given to the executive branch authorities to make changes in their regulatory legal acts) they will NOT make any changes, we can get a real administrative collapse.
Let us focus separately on what risks can be predicted.[vcex_divider color=”#dddddd” width=”100%” height=”1px” margin_top=”20″ margin_bottom=”20″]
The main source of regulation: the Law of Ukraine “On the Judicial System and the Status of Judges”.
Who can make changes: Verkhovna Rada of Ukraine.
In accordance with Art. 125 of the Constitution, the judicial system in Ukraine is based on the principles of territoriality and specialization and is determined by the law “On the judicial system and the status of judges.”
According to Art. 21 of this law, local general courts are district courts, which are formed in one or more districts or districts in cities, or in a city, or in a district (districts) and city (cities). As the districts grow larger, hundreds of local courts will be eliminated, since two courts per district are not provided by law.
In this regard, the legislator should resolve a number of issues:
- regulatory formalization of the liquidation of courts and the transfer of judges or their dismissal;
- determination of successor courts;
- decisions on the fate of procedural documents that were submitted to the courts, that will be liquidated;
- provision of new and enlarged district courts with premises and personnel, and etc.
Also, the court system may remain in the same state as now. We can predict two disappointing options:
- the courts are being rebuilt for new zoning without proper legislative support – and it will become too difficult to protect one’s rights;
- the judicial system does not change – and in some cases this fact is being abused, and at the same time the Regulation on the formation and liquidation of regions is recognized as unconstitutional and the reform is canceled.
The main source of regulation: the Law of Ukraine “On Notaries”.
Who can make changes: Verkhovna Rada of Ukraine.
According to Art. 13-1 of the Law of Ukraine “On Notaries”, notary districts are determined in accordance with the administrative-territorial structure of Ukraine.
There is no profile law now, and Art. 133 of the Constitution includes to the system of administrative-territorial structure the Autonomous Republic of Crimea, regions, districts, cities, districts in cities, towns and villages.
Traditionally, a district or a city with a regional division is chosen as a notary district (although since 2013 there are no legal grounds for such restrictions, this is a topic for another publication).
The same article of the law notes that in the event of a change in the administrative and territorial division of Ukraine, as a result of which the location of the workplace (office) of a private notary was included in another notary district, the notarial activity of the relevant notaries shall be registered in this notary district.
That is, even before the adoption of the resolution, the territory of the notaries’ activities was in question, but now it is completely unclear which notary can be applied so that later the transaction is not invalidated, and how often does notaries refuse to perform notarial actions on this basis.[vcex_divider color=”#dddddd” width=”100%” height=”1px” margin_top=”20″ margin_bottom=”20″]
State executive service
The main source of regulation: the Law of Ukraine “On Bodies and Persons Exercising Enforcement of Judgments and Decisions of Other Bodies”.
Who can make changes: Ministry of Justice of Ukraine.
According to Art. 6 of the Law of Ukraine “On Bodies and Persons Implementing the Compulsory Enforcement of Court Decisions and Decisions of Other Bodies” the system of bodies for the decisions’ enforcement consists of:
- Ministry of Justice of Ukraine;
- bodies of the state executive service, formed by the Ministry of Justice of Ukraine as prescribed by law.
That means, if the Ministry of Justice does not amend its own regulatory legal acts on the system of state executive service bodies (by the way, as also in relation to state notary offices), the claimants will face difficulties in electing an authorized state executive service body to open executive proceedings.
Bodies of the State Geocadastre
The main source of regulation: the Regulation of the Cabinet of Ministers of Ukraine “On the formation of territorial bodies of the State Service on Geodesy, Cartography and Cadastre”.
Who can make changes: Cabinet of Ministers of Ukraine.
The list of territorial bodies of the State Geocadastre that are being formed (Appendix 1 to the beforementioned resolution of the Cabinet of Ministers) indicates that the bodies of the State Geocadastre are formed after the regional division of Ukraine. If the Cabinet of Ministers does not make changes to this system, difficulties may arise with the exercise by landowners of their rights.
The main source of regulation: Regulation on the State Tax Service of Ukraine.
Who can make changes: Minister of Finance of Ukraine.
In Subparagraph 15 of Clause 11 of the Regulation on the State Tax Service of Ukraine, it is indicated that the latter submits proposals to the Minister of Finance on the creation, reorganization and liquidation of territorial bodies of the State Tax Service.
That means, the reorganization of the tax authorities requires the cooperation of the State Tax Service (STS), the Ministry of Finance and the Cabinet of Ministers, and is time-consuming.. At the same time, the organization of the STS bodies does not completely coincide with the regional division – the structure of the separate subdivisions of the STS bodies (on the regional level) was approved by order of the State Fiscal Service of Ukraine on July 12, 2018 No. 445.
In fact, the list of bodies requiring reform is much longer. However, even with these examples, one can be convinced of the seriousness and scale of the potential problem.
So with the adoption of the Regulation, the Verkhovna Rada supplied itself and executive authorities with additional work. Let’s hope that before the adoption of the Regulation, the further fate of the mentioned state bodies and authorized persons was determined in terms of the boundaries of their powers.
Otherwise, there will not be enough time to bring legislation into compliance, and a successful reform will turn into a stick in the wheels of Ukraine.