The state of convenient paradoxes. Who is to blame for the construction corruption at the local level?
The Cabinet and beyond plan their “experiment” – gearing up to consider the clone of the scandalous urban planning reform (bill 5655). This is evidenced by an intensive media campaign.
Deputy Prime Minister Oleksandr Kubrakov asserts that there are violations on the part of local authorities in issuing urban planning conditions and restrictions, permits, and certificates. Meanwhile, the author of the criticized project 5655, chair of the “Servant of the People” party, Olena Shuliak, speaks of “devastating corruption” and the threat of turning reconstruction into a “corruption cesspool,” because for local government bodies, this is a “sacred grail, an endless abyss of corruption.” Supposedly, the situation can be rectified by empowering the State Architectural and Construction Inspection to control the issuance of urban planning conditions, as Kubrakov and Shuliak believe is necessary for the government’s “experiment.”
In reality, the current legislation provides all the tools for state oversight of the legality of actions by local self-government bodies. However, for the past four years, it has not been implemented. And this situation allows these politicians in the public arena to use existing corruption as justification for the need to carry out “reforms” in the interests of the construction lobby.
The public initiative “Holka” decided to investigate why the State Architectural and Construction Inspection is not functioning properly.
Who should oversee this?
The government, through Deputy Prime Minister Oleksandr Kubrakov, is responsible for overseeing the work of the State Architectural and Construction Inspection, as stated in the relevant provision. In addition, there is also a provision regarding the Ministry of Infrastructure. The State Architectural and Construction Inspection may only refrain from conducting construction supervision upon the instruction of the deputy prime minister.
Moreover, he personally bears responsibility for the state of affairs in the delegated spheres of state management (Article 45 of the Law on the Cabinet of Ministers).
If the government does not ensure proper work in this regard, parliamentary control should be in place. According to the law, when it comes to urban planning and local government bodies, parliamentary oversight is the responsibility of the parliamentary committee chaired by the author of project 5655, Olena Shuliak.
Therefore, both Kubrakov and Shuliak, who discuss corruption at the local level at forums and presentations, are not fulfilling their duties.
Such reinforcement of corruption at the local level can be intentional. Essentially, lobbyists for the urban planning reform have taken the country hostage to justify the need for a government “experiment.” And all that needs to be done is to fulfill their duties.
What is construction supervision and why is it necessary?
The only example of corruption cited by urban planning reform lobbyists is the case of IKEA during the times of Yushchenko and Yanukovych. At that time, the Swedish business could not build a store. This is despite the fact that in the last two years, about 1,500 different executive bodies of local councils considered nearly 9,000 applications for issuing urban planning conditions, over 62,000 for issuing building permits, and about 83,000 for the start of construction and commissioning. These are data from the Unified State Electronic System in the field of construction.
This electronic system was supposed to ensure transparency in permitting processes in construction, and the State Architectural and Construction Inspection (SACI) was supposed to verify the legality of decisions by local self-government bodies.
For this purpose, construction supervision exists. It is an anti-corruption control and mechanism for pre-trial settlement of disputes in the field of construction. It was established ten years ago to control the legality of actions by local self-government bodies that received new powers in the process of decentralization.
The SACI’s striking achievements
According to the law, as of 2019, the main inspectors of the SACI had the right, following planned or unplanned inspections, to cancel decisions of local self-government bodies in case of violations and to initiate questions about bringing them to responsibility. If the violations could be rectified, the action of such a decision was suspended, and an order for rectifying violations was issued.
The procedure for conducting measures is regulated by Cabinet Resolution No. 698, which contains corruption-prone factors – discretionary powers.
The SACI had very broad rights to independently initiate unscheduled inspections on-site. However, in case of violations, inspectors could demand bribes from interested parties to conceal them.
For an unscheduled inspection, there had to be a “justified appeal of a natural or legal person about the violation of their rights.” Therefore, refusal could be justified by referring to the groundlessness of the appeal or the absence of violated rights, but even with an ideally justified appeal, inspections could be delayed for years. There were no regulated time frames.
What was the effectiveness of the work of the agency considered one of the most corrupt in the country?
In 2019, the SACI conducted over 1,000 inspections. There were thousands of suspended and canceled decisions. This is stated in the report.
Fragment from the Accounting Chamber’s report on the results of the SIAUP audit:
How was the state architectural and construction supervision system destroyed during the reform process?
The first blow to the architectural and construction supervision system came in 2019 with the law “… on improving the provision of administrative services in the construction sector and creating a Unified State Electronic System in the construction sector.”
On the one hand, it provided for the creation of an electronic system that was supposed to significantly improve the supervision system. However, it simultaneously deprived inspectors of the right to independently cancel decisions made with violations. According to the new requirements, in case of finding a violation, one had to appeal to the court, and only if the court decision to cancel the decision took effect, could the responsible officials on-site be held accountable.
Therefore, architectural and construction supervision completely lost its meaning as a mechanism for pre-trial dispute resolution and protection of developers from the arbitrariness of local officials. If previously a problem with delays in providing a service or an illegal refusal could be resolved through SACI within weeks, under the new rules, there were only two options left – either a bribe or months or years of litigation.
These changes took effect with a six-month delay, and the old SACI did not have to supervise under the new rules.
The main author of this law was Olena Shuliak, who now calls the problem of the existing legislation, created with her participation, a huge problem with the absence of an appeal body.
The next step was the Cabinet meeting on March 13, 2020, with the personal participation of Volodymyr Zelensky, at which the liquidation of the corrupt SACI was announced.
The Cabinet meeting on March 13, 2020. Photo from the official website of the President of Ukraine.
For another year and a half, SACI continued to issue permits for all constructions, including illegal ones. However, with the government resolution No. 219, a new regulation was approved, which deprived the Inspection of the right to carry out architectural and construction supervision, and these powers were not transferred to any other body.
Over the next year and a half, corruption flourished at the local level, as the Cabinet completely banned inspections. Essentially, in the presence of the President of Ukraine, the anti-corruption measures of supervision were announced as nothing but corruption by SACI.
From 2021 onwards, the newly established SIAUP began (not) conducting supervision.
Before the full-scale invasion, the Inspection Authority did nothing here. And after that, it justified the restrictions on inspections imposed by the government (Resolution No. 303).
As a result, inspections under architectural and construction supervision, which the old “corrupt SACI” conducted at a rate of five per day, turned into such a rare and unique occurrence that the Ministry of Infrastructure recently covered only one inspection of the legality of providing Urban Planning Conditions and Restrictions on construction in Kyiv near the Solomiansky Park in four news articles on the website. These were two announcements of the start of the inspection, a description of the inspection, and a notice of referral to court.
Restrictions on inspections during a state of war. What’s wrong?
- By hastily halting “planned and unscheduled state supervision (control) activities,” the Cabinet may not have realized that it was banning inspections of the legality of actions by local authorities and harming the economy. However, the fact that this mistake has not been corrected for over two years speaks to the government’s deliberate support of corruption at the local level.
- The government only completely banned planned events, but in the presence of a threat that has a negative impact on rights, legitimate interests, life, and health of a person, etc., inspections of architectural and construction supervision are allowed by the decision of the Ministry of Infrastructure.
Infrastructure Minister Kubrakov publicly speaks about the criticality of violations of the law by local authorities, so there is an apparent threat of negative impact and grounds for SIAUP to be allowed to carry out all necessary inspections under supervision.
- According to the aforementioned Order 698, SIAUP, in addition to planned and unscheduled events, must also carry out desk and documentary inspections, which are currently unrestricted in any way. Therefore, SIAUP is obliged to ensure, based on records in the electronic system, the compliance with deadlines for the provision of administrative services and the legality of decisions of local authorities on the issuance or refusal to issue Urban Planning Conditions and Restrictions and permits. And in case of signs of violations, SIAUP is obliged to apply to the Ministry of Infrastructure for permission to conduct unscheduled inspections.
Thus, the restriction on inspections imposed by the Cabinet does not in any way prevent the Inspection Authority from effectively combating manifestations of corruption at the local level.
Specially for “Glavkom“
