We would like to present you a short review of some of the legal tools that empower pepole to make an impact on decision making.
THE RIGHT TO INFORMATION
Right to know – is guaranteed by the Article 61 of Polish Constitution and the Law on Access to Public Information. Everybody can ask for anything that concerns activity of public institutions and get information necessary to take part in the decision making. The institutions should answer as soon as possible, up to 14 days.
- The basis in the Constitution – article 61. A citizen has the right to receive information about the activities of public authorities and persons performing public functions. This right also includes obtaining information on the activities of economic and professional self-government bodies as well as other persons and organizational units to the extent that they perform tasks of public authority and manage municipal property or State Treasury assets. The right to obtain information includes access to documents and access to meetings of collegial public authorities from general elections, with the possibility of recording sound or images. The limitation of the law can take place only due to the protection of the freedoms and rights of other persons and economic entities set out in the acts, as well as the protection of public order, security or important economic interest of the state.
- Legal basis: Act of 6 September 2001 on access to public information
- Although the Polish Constitution provides that the right to information belongs to a “citizen” the act extends the constitutional guarantee and guarantee the right to information to “everyone”. The right to information in the Polish legal order is therefore available for everybody, including a physical person (regardless of age), as well as other legal entities and organizational units without legal personality.
- The level of formality: access to public information is unformal (separate simplified procedure, unformal request for information, shortened time for consideration of the case and for procedures of appealing).
How people can impact local decision making
Requestin administrative regime – according to Polish Constitution’s article 63 and article 241 of the administrative proceedings code, everybody has a right to submit a proposal in public interest to the institution as regards its tasks. It should contain recommendation how the activities of the institution should be improved. The institution is obliged to answer in 30 days. The request can also be submitted to include some position in the budget of the institution.
“Administrative” requests in Poland can be submitted in all matters important to residents because, according to the law, the subject of the application may be matters of improving the organization, strengthening the rule of law, improving work and preventing abuse, protecting property, better fulfil the needs of the population. It is not a closed enumeration. The solutions proposed by the residents may concern the implementation of various human rights.
Examples: The proposal to improve the hospital’s operation, carried out by local authorities, will allow for a more complete implementation of the right to health.. The proposal on changes in local public schools will allow the greater realization of the right to education. The proposal regarding the publication of certain information by public entities will allow for a more complete implementation of the right to know.
The “administrative” requests are addressed to the public entity under concern. The subject of the applicationdoes not have to be only connected with what is required by the law, but also what constitutes good practice.
Example: The resident can request the mayor to make a calendar of official meetings available on line. In Polish law there is no obligation to publish this information, moreover – in the opinion of administrative courts, this is not public information. Nevertheless, we can convince the local authorities, through the “administrative” proposals, that making calendars available online will be an example of good practice and will positively influence the perception of public authorities and will be beneficial to citizens’ knowledge of public matters.
Submitting of a request is also important for documenting its activities. Even if the addressee of the requestdoes not share our proposals, he/shewill have to justify the position in writing. His/her activity or inactivity can be later raised as a topi of a public debate.
According to Polish law, the “administrative” request is less formal than other administrative correspondence. It does not have to be signed and may be filed, among others, in electronic form (e-mail or fax). The request must contain the name and surname (or name – in the case of legal persons and other entities) and the address of the applicant. Anonymous applications are not considered (§ 8 section 1 Regulation of the Council of Ministers of 8 January 2002 on the organization of the receipt and processing of complaints and requests).
In Poland, “administrative” requests are processed in one instance. The method of consideration cannot be unlawful, as the settlement is an expression of the will of the representative of the body. There is no way to challenge the way of handling the request, but the negative conclusion of the application may be the subject of a complaint.
The basis in the Constitution – art. 63 (Everyone has the right to submit petitions, requests and complaints in the public interest, his own or another person with his consent to public authorities and to social organizations and institutions in connection with their tasks in the field of public administration. The procedure for examining petitions, applications and complaints shall be specified by statute.
Legal basis: Chapter 3 of the Act of 14 June 1960 – Code of Administrative Procedure and Regulation of the Council of Ministers of 8 January 2002 on the organization of the admission and processing of complaints and applications.
It is available to everyone, including a natural person (regardless of age), as well as other legal entities and organizational units without legal personality
Formalization level: relatively informal – a simplified procedure, the possibility of submitting in an electronic form without a signature or an electronic signature, the application cannot be anonymous.
Local initiative is a specific type of request based on the article 241 of the administrative proceeding code. It allows informal groups of citizens to ask for funding of their specific initiative. It is however important that citizens bring their own contribution, e.g. their work. Citizens may promise to clean a park but they need equipment from a commune (gmina).
Local authorities are required to specify the proceduresand detailed criteria for the implementation of a public task within a local initiative.
After the request has been accepted by the local authorities (the decision is made by the mayor), an agreement is signed with the applicant (or the initiative group) for the implementation of the public task within the local initiative. This contract is necessarily more formal, so it written and signed by people with full legal capacity (so, above all, adults).
The local initiative from the participatory budget is distinguished by the fact that when applying for the task under the local initiative, the applicant must get involved – primarily in the form of voluntary involvement, but it can also be a financial or material contribution.
Example: A group of residents would like to build a fence around the playground, located in their surroundings, so that children can play more safely (due to the adjacent road). Residents addressed the mayor with a request for an implementation of a public task as part of a local initiative, in which they apply for support in the form of provision by the municipal authorities of materials for the construction of fences. Theyoffer their work and using their tools.
- The basis in the Constitution – art. 63 (Everyone has the right to submit petitions, requests and complaints in the public interest, his own or another person’s with his/her consent to public authorities and to social organizations and institutions in connection with their tasks in the field of public administration. The procedure for examining petitions, applications and complaints shall be specified by statute of the institution.
- Legal basis: Chapter 2a of the Act of April 24, 2004 on Public Benefit and Volunteer Work (Chapter 2a was introduced into the Polish legal system in 2010), Chapter 3 of the Act of 14 June 1960 – Code of Administrative Procedure and Regulation of the Council of Ministers of 8 January 2002 on the organization of the receipt and processing of complaints and requests.
- At the stage of submitting proposals for the implementation of public tasks within a local initiative, everyone, including a physicalperson (regardless of age), as well as other legal entities and organizational units without legal personality, is entitled to do that. However, if the application is accepted, the contract must be signed by persons with legal capacity (in particular – adults)
- Level of formalization: at the application stage, informal (a simplified procedure, the possibility of submitting it in an electronic form without a signature or an electronic signature), if the application is considered, the stage of signing the contract is formalized.
Complaint is based on Polish Constitution’s article 63 and article 227 of the administrative proceedings code saying that everybody has a right to complaint. The complaint should concern failures in functioning of the existing procedures, solutions or misbehaviours in the institutions.
The complaint is directed to the higher entity in reference to the public body that is a subject of complaint. Then this higher-level body assesses the actions of the subordinate body. The topicof the complaint may be connected with both, illegal activity and action (or omission) that deviates from good standards. It can also refer to the negative consideration of the request.
Example: Resident may complain that mayor is acting unlawfully or his/her behavior does not realize the standards, or that he/she did not take into account the resident’s”administrative” request, although theproposal would bring good results and wasfeasible.
The complaint must comply, in accordance with Polish law, with the same requirements as the “administrative” request. This means that the complaint is less formal than the rest of administrative correspondence, does not have to be signed and can be filed, among others in electronic form (e-mail or fax). The complaint must contain the first name and surname (or name – in the case of legal persons and other entities) and the address of the applicant. Anonymous complaints are not considered (§ 8 section 1 Regulation of the Council of Ministers of 8 January 2002 on the organization of the receipt and processing of complaints and applications).
- The basis in the Constitution – art. 63 (Everyone has the right to submit petitions, requests and complaints in the public interest, his/her own interest or another person’s with his/her consent to public authorities and to social organizations and institutions in connection with their tasks in the field of public administration. The procedure for examining petitions, applications and complaints shall be specified by statute of the organization.
- Legal basis: Chapter 2 of the Act of 14 June 1960 – Code of Administrative Procedure and Regulation of the Council of Ministers of 8 January 2002 on the organization of the admission and processing of complaints and applications.
- It is available to everyone, including a physical person (regardless of age), as well as other legal entities and organizational units without legal personality
- Formalization level: relatively informal – a simplified procedure, the possibility of submitting in electronic form without a signature or an electronic signature, whereas the complaint cannot be anonymous
Petitions are the most formal way of communication with gmina. They are similar to requests but should concern changes in regulations and laws. From formal point of view there is no need that petition is signed by more than one person. Of course it is important from pressure point of view. Good thing about petitions is that the institution should publish this petition. The bad one is that the institution has 3 months for answering. This deadline can be extended exceptionally up to 6 months.
The choice between a petition, an “administrative” request and a complaint is on the citizen. As a rule, they are not mutually exclusive (citizen can file a complaint after a negative consideration of the “administrative” request, or at the same time: petition, request and complaint).It is good to remember that a negative consideration of a petition cannot be the subject of a complaint. At the beginning, the citizen can come up with a proposal for a specific action and submit and “administrative” request. If it is not successful, he/she can file a complaint with a higher authority. If that does not work, then citizen can involve more people and submit a petition.
Example: In Poland, many residents want the local authorities to publish on line a register of contracts, concluded with public funds, which contains information about contractors, contract amounts and contract subjects. To encourage local authorities to run such on line register, they submit an “administrative” request to the head of the city. If it is not taken into account, they can complain to the city council, and in the meantime, they can also start activating the residents and preparing a petition in which they will ask the city council to oblige the mayor to take measures to ensure transparency of public life.
- The basis in the Constitution – art. 63 -everyone has the right to submit petitions, applications and request in the public interest, his/her own interest or another person’s with his/her consent to public authorities and to social organizations and institutions in connection with their tasks in the field of public administration. The procedure for examining petitions, applications and complaints shall be specified by statute of the institution.
- Legal basis: Act of 11 July 2014 on petitions (although the Polish Constitution of 1997 provides the right to submit petitions, by 2014 there were no legal procedures for examining them).
- It is available to everyone, including a natural person (regardless of age), as well as other legal entities and organizational units without legal personality
- Formalization level: formalized, special procedure, necessity to provide data on petitioners, obligation to publish petition information on the Internet, extended petition deadline (maximum 6 months)
Consultations are run on the basis of the law on self-government (art. 5a) that says that consultations should be run as regards issues important for commune’s(gmina’s) inhabitants. They can be also run on the level of region and subregion. The task of each self-government is to adopt a separate resolution, in which the rules and procedures for consulting residents are regulated. In turn, the beginning of the consultation itself is the adoption of another legal act (resolution of the council or order of the commune head, mayor or city president- about specific consultations.
In the resolution on the rules and procedures for consultations with residents, it is worth ensuring that not only local authorities (e.g. the mayor) have competence to organize consultations with residents, but that an initiative can be started by a group of residents or organizations (e.g. 100 inhabitants). In practice, it is also important to consult at the earliest possible stage.
Example: When there is a need to change the statute in the municipality, it is worth organizing consultations at the stage of collecting the assumptions of changes, and not only when the city council committee will prepare a ready project. It is easier to introduce solutions proposed by residents when the works are at an early stage.
Consultations with residents may be associated with gathering remarks or demands of residents. However, it is also worth using other active forms of consultation, for example, organizing open meetings or organizing workshops with residents. It’s good to use various forms during consultations – the more there are, the greater the chance of getting to know the opinions of as many residents as possible.
Consultations are by nature non-binding. If the public authorities make a decision contrary to the results of consultations, it cannot be said that the action of power was illegal. For this reason, it is not possible to undermine the decision, but only make the authorities accountable in the forthcoming elections.
In Poland, there was a problem with privacyas regards social consultations. In some consulutation, authorities collect dataabout positions of the individual residents.
Example: According to the law in force, to change the status of a city, a public consultation should be conducted among residents. Such consultations took place in Stepnica. However, the way they were carried out raised the doubts of one of the residents. The local administration representatives visited residents at homes and collected opinions on changing the status of their commune from rural to urban. In order to be able to participate in social consultations, a resident had to sign an “attendance” list. On the ballot, in addition to determining their position (for, against, abstaining from voting), the resident had to put a signature.
As a result of consultations, the Stepnica authorities obtained information about who voted, and if they did not vote, whether by not accepting the card or by absence in the apartment (this was also noted in the case of the tenant’s death). Due to the voting cards signed, it was possible to determine which positions in the consultations were taken by individual residents.
One of the residents of Stepnica requested the Municipal Council to remove the violation of the law, and then appealed against the resolution regarding the consultation of the court. She alleged violation of, inter alia, art. 51 par. 1 of the Polish Constitution, according to which no one may be obliged – unlike under the Act – to disclose information concerning herself/himself, and art. 51 par. 2 of the Constitution of the Republic of Poland, which stipulates that public authorities cannot obtain, collect and make available other information on citizens than those that are necessary in a democratic stateruled by law.
Finally, the case went to the Supreme Administrative Court, which stated that the name social consultations are irreconcilable with the freedom of expression and that they distort the idea of consultation, the essence of which is the free formulation of ideas. It was also pointed out that collecting public information about how individual residents voted was an illegal gathering of political views. The argument of the authorities is the necessity to verify whether the inhabitants do not express their position twice, which disturbs the picture of consultations. However, the elimination of multiple participation in consultations is possible without disclosing how individuals voted. In addition, consultations with residents are a non-binding instrument for public authorities to seek opinions, so burdening them with too many formalities and gathering a lot of information about people taking part in them is pointless.
In some cases consultations with residents are compulsory. It is connected with local level and statury acts. The obligation to conduct consultations concerns:
- creating, merging, dividing and abolishing local government units ( communes, poviats and voivodeships) and establishing their boundaries; giving the commune or towns the status of a city and establishing its borders; changing the name of the local government unit and the seat of their authorities, creating an auxiliary unit of a commune (gmina).
- assessment of the investment’s impact on the environment (which includes, but is not limited to, strategic documents, such as the spatial development of the country, the study of spatial development conditions and directions, the spatial development plan and regional development strategy, policies, strategies, plans or programs in the field of industry, energy , transport, telecommunications, water management, waste management, forestry, agriculture, fisheries, tourism and land use, elaborated or adopted by administrative bodies, setting the framework for the subsequent implementation of projects that may significantly affect the environment, other policies, strategies, plans or programs, whose implementation may cause a significant impact on the protected area).
Other legal acts regulate specific consultations. The Act on Public Benefit and Volunteer Activities imposes an obligation to consult with non-governmental organizations in the case of establishing cooperation programs for these organizations with the local government. The Development Policy Act obliges local governments to consult strategic documents with the residents. However, these regime is lighter and does not fulfill the rules of public consultations.
CONSULTATIONS WITH RESIDENTS
- The basis in the Constitution – no constitutional guarantee of consultations with residents
- Legal basis: art. 5a law on commune (gmina) self-government, art. 3d law on poviat self-government, art. 10a of the Act on the self-government of the voivodship
- In consultations he has the right to take every resident, regardless of age, there is no reason to enter the age census.
- Level of formalization: depends on local legal regulations, recommend the simplest procedure possible, allowing anonymous and free expression of opinions by residents.
Local referendum is a tool that is also mentioned in the constitution, in the art. 170. It also has its own law on referendum. If referendum is valid, the local authorities have to fulfil expectations. It can concern decisions on local issues or recalling the local authorities.
A local referendum is formalized both at the stage of its initiation and at the stage of implementation and essentially concerns the most important issues from the point of view of the commune and its inhabitants. It is worth taking care in the law regulating the local referendum (in Poland it is the statutory level) that the initiative to organize a referendum could be performed not only by representatives of the authorities, but also by a certain group of residents.
From a practical point of view, a referendum – in accordance with Polish law – is connected with providing a positive or negative answer to a given question or questions or on choosing between the proposed options. Therefore, the local referendum is reminiscent of elections.
(Subject of the referendum) In accordance with Polish law, a local referendum may refer to the dismissal of the body constituting this unit ( commune(gmina) council, poviat council or voivodship council), executive body (mayorpoviat management and voivodship board) ), self-taxation of residents for public purposes falling within the scope of tasks and competences of commune bodies, the manner of resolving a case concerning this community, falling within the scope of tasks and competences of the bodies of a given unit; other important matters regarding the social, economic or cultural ties that connect this community.
(People entitled to participate in the referendum) People who are permanently residing in the area of a given local government unit and who have an active electoral right to the council have the right to participate in the referendum. The Act on the local referendum is a fact, so local law cannot change the catalogue of those entitled to take part in the referendum.
(Initiator of the referendum) The initiative of holding a referendum at the request of residents of a local government unit have, as a rule, 1) a group of at least 15 citizens, who have the right to vote for the local authority, and in relation to the municipal referendum – also five citizens who have the right to choose to the commune council; 2) the statutory field structure of a political party operating in a given local government unit; 3) a social organization with legal personality, whose statutory area of activity is at least the area of a given local government unit. These are the initiators of the referendum who are continuing the campaign to collect the required number of signatures of support.
The referendum is carried out on the initiative of the body constituting a given local government unit (commune, poviat or voivodeship council) or on the requestof at least 10% of the residents of the commune or poviat eligible to vote; 5% of voivodeship residents entitled to vote. A referendum regarding the dismissal of a local government council may take place only at the request of the residents, whereas a referendum regarding the appeal of the mayor may also be carried out on the initiative of the commune council. The residents request regarding the calling offthe commune authorities may be submitted after 10 months from the date of election of the body or 10 months from the day of the last referendum regarding its cancellation and no later than 8 months before the end of his/her/its term.
After the referendum initiator makes the decision to take action, the mayorpoviat executive or the voivodship marshal should be notified in writing of the intention to put forward a referendum initiative. This notification must contain personal data of the initiators (or data of a political party or organization) and a topic ofa referendum.
Submission of a notification is confirmed in writing. If the initiator asks for it, the number of inhabitants of the local government unit entitled to vote is also given in writing. The number is drawn up on the basis of the voter register in the municipality, which is current at the end of the quarter preceding the submission of the application. This is important in the further part of the activities to determine the number of signatures required, so that the referendum would take place.
(Information about the planned referendum) In further action, the initiator of the referendum, at its own expense, makes public the topicof the intended referendum, the question of the referendum or the proposed referendum, or if the application concerns a referendum on self-taxation – the purpose or goals and principles of self-taxation. If the reason to run referendum is calling off the local authorities – in theinformation justification should be given. This information is distributed in the manner that is usually used in a given commune (gmina), and on the poviat or voivodeship – through an announcement in the public daily press in a given poviat or voivodship.
(Collecting signatures of support from residents) The notification is important in the light of further actions by the initiator of the referendum, because within 60 days of the notification, signatures of support for the idea of holding a referendum are collected on specially prepared lists.
If the initiator does not collect the required number of signatures, they are subject to protocol destruction, and if an appropriate number is collected – they constitute the basis for requesting municipal authorities to conduct a local referendum. Municipal authorities are bound by an application if it meets the statutory requirements and does not lead to unlawful decisions.
(Decision to hold a referendum) Local authorities pass a resolution regarding the holding of a referendum, which includes, among others, question or questions of the referendum or variants proposed to the residents of the unit to choose; the date of the referendum; a specimen of ballots(also in Braille) and a timetableof activities related to the holding of a referendum. If the object of the referendum is to dismiss the body of the local government unit, the election commissioner decides to conduct the referendum.
(Judicial route) A decision on the decision of the decision-making body and the commissioner to the initiator of the referendum is a complaint to the administrative court. Shortened time limits have been adopted here – the administrative court reviews the complaint within 14 days from the date of lodging the complaint, and the cassation complaint is lodged within 14 days.
(Referendum campaign) After the resolution of the council or the commissioner’s decision regarding the referendum, a referendum campaign takes place. During this campaign local government unit (gminacouncil, poviat council or voivodship council) which decided on the referendum explains the essence of problems to be resolved, the content of questions and variants put forward, as well as the position of the initiator of the referendum and political parties, associations and residents in the matter subjected to a referendum. The referendum campaign begins on the day of passing the resolution of the body constituting the local government unit or the decision of the election commissioner to conduct the referendum and is terminated 24 hours before the voting day. From the end of the referendum campaign, until the end of the vote, it is forbidden to summon assemblies, organize parades and manifestations, deliver speeches, distribute leaflets, and otherwise conduct agitation in connection with the referendum.
If the referendum concerns the dismissal of the local government unit, it is forbidden for the bodies of the local government unit and members of these bodies to participate at the expense of the local government unit in the referendum campaign.
(Restrictions on the referendum campaign) Polish law includes a number of restrictions regarding the referendum campaign. It cannot be carried out in the offices of government and self-government administration and courts; work establishments, in a manner and in forms interfering with their normal functioning; military units and other organizational units subordinate to the minister competent for national defence and civil defence departments, as well as barracks of police units. It is also forbidden to organize lottery raffles, other types of games of chance and contests where prize money or items of value higher than the value of small items normally used for advertising and promotional purposes.
In turn, all posters, slogans or leaflets about the referendum, which contain a clear indication of who they come from, or stating by whom they are posted, are subject to legal protection.
However, if posters, slogans, leaflets, statements or other forms of propaganda and agitation contain false data and information, every interested party has the right to submit an application to the regional court for: 1) confiscation of such materials; 2) issuing a ban on publishing such materials; 3) ordering rectification of information; 4) ordering the apology 5) ordering the participant to pay the amount of up to PLN 10,000 to a charity institution; 6) ordering from the participant in proceedings for the benefit of the applicant up to PLN 10,000 as a result of damages. The law guarantees very short deadlines (24 hours) for the appeal route and then for the appeal to be reviewed by a higher court.
The Polish law also provides shortened time limits for rectifying information published by the press.
(Financing the local referendum) Financing the referendum in Poland is public. The costs of the referendum itself coincide with the budget of the local government unit covered by the referendum and the state budget when the referendum is organized by the electoral commissioner.
Financial statements from budget expenditures incurred in connection with the referendum ordered by the body constituting a local government unit, the executive body of this unit shall submit to the body acting at the session no later than three months after the date of the referendum.
In turn, the expenses of the initiator of the referendum incurred in connection with the referendum are covered from its own sources. Moreover, the initiator of the referendum and other entities participating in the referendum campaign cannot be transferred, and the initiator of the referendum cannot accept for referendum funds: 1) from the state budget, budgets of local government units, associations of local government units and other communal, poviat and voivodeship legal persons; 2) from state organizational units; 3) from state-owned enterprises, as well as from entities with the participation of the State Treasury, local government units, associations of local government units and other commune, poviat and voivodship legal persons, excluding public companies; 4) from entities using within the last year from subsidies from the state budget or from subsidies to the budget of local government units, excluding political parties; 5) from natural persons who have no place of residence in the territory of the Republic of Poland, with the exception of Polish citizens living abroad; 6) from foreigners residing in the Republic of Poland; 7) from legal persons not having their registered office in the territory of the Republic of Poland;8) from other entities not having their registered office in the Republic of Poland, who have the ability to incur liabilities and acquire rights on their own behalf; 9) from legal entities with the participation of foreign entities, with the exclusion of public companies; 10) from foreign diplomatic missions, consular offices, special missions and international organizations, as well as other foreign agencies that enjoy diplomatic and consular immunities and privileges pursuant to agreements, laws or commonly established international customs.
The proxy of the initiator of the referendum is obliged to prepare a financial report on income and expenses related to the referendum.
(Conducting a referendum) The referendum is carried out and determined by the relevant territorial (voivodship, poviat and commune) commissions for this purpose, and referendum committees for the matters of referendum, hereinafter referred to as “territorial commissions” and “district commissions”, which are appointed by the constituting a local government unit, or electoral commissioner. The provisions of electoral law shall apply accordingly to the operation of these committees.
(Results of the local referendum and its validity) A referendum, as a rule, is valid if at least 30% of those entitled to vote took part in it. However, a referendum regarding the dismissal of the body of a local government unit coming from direct elections is valid if participation in it took no less than 3/5 of the number participating in the selection of the appealed authority.
On the other hand, the result of the referendum is decisive if more than half of the valid votes were cast after one of the solutions in the matter subjected to the referendum. The result of the municipal referendum on self-taxation of residents for public purposes is decisive, if at least two-thirds of the valid votes were cast in favor of self-administration.
If the referendum results in a final result in a referendum subject, the competent authority of the local government unit will immediately take steps to implement it.
(Referenda protests) Within 7 days from the date of submission of the referendum results, each resident of a given local government unit entitled to take part in it may protest if violation of the legal provisions was allowed, and the violation could have a significant impact on the referendum result.
(Penal provisions regarding local referendum) Regulations concerning the local referendum are supplemented by criminal provisions, sanctioning, among others, collecting signatures of persons supporting the submission of a referendum application in the event of pressure to enforce a signature; conducting a referendum campaign in violation of bans; giving the initiator a referendum or accepting, on behalf of the initiator, a referendum, financial or non-monetary resources in violation of the prohibitions; or the consequences of failure to submit the report by the initiator of the referendum.
- The basis in the Constitution – art. 170 – members of the local government community may decide, by way of a referendum, on matters related to this community, including the dismissal of a local government bodies coming from the direct elections.The rules and procedure for conducting a local referendum are specified by statute.
- Legal basis: Act of 15 September 2000 on the local referendum
- Only people with an active electoral right to the body constituting the unit can initiate a referendum.
- Formalization level: very formal, which concerns the initiation of a referendum, collecting signatures of initiative support, a referendum campaign, as well as voting and reporting itself
Solecki Fund is a tool which gives council of gmina a possibility to separate some money from the gmina’s budget, that only local inhabitants of auxiliary commune units (solectwo) decide on. Solecki Fund may be understood as a form of participatory budget. However the important difference is that there is a legal basis for it and it is difficult to change residents’ decision.
In Poland, the creation of the sołecki fund depends on the resolution of councillors. However, to encourage them to organize this form of involving the residents, a part of the funds allocated to the sołecki fund is returned from the state budget. The sołecki fund gives residents of the village council, (“sołectwo” is name of the auxiliary unitofgmina) decide on the allocation of funds, without the participation of commune politicians. Thanks to this, they can decide about their local issues and learn about the responsibility for the closest community.
The commune council decides to separate in the municipal budget the funds constituting the fund, adopting the resolution by 31 March of the year preceding the financial year, in which it agrees or does not agree to the separation of the fund. The resolution on consent to the separation of the fund applies to subsequent financial years following the year in which it was taken. However, the resolution on non-approval of the fund’s separation applies only to the financial year following the year in which it was taken.
For implementation of the Sołecki Fund, it is necessary to submit an application by the village council, which will present the appropriation of funds from the fund by 30 September of the year preceding the budget year to which the application relates. The request of a given village council adopts a village meeting (consisting of residents of a village council) at the initiative of a village administrator, a village council or at least 15 adult inhabitants of a village council. The application should include the indication of projects planned for implementation in the area of the village council as part of the measures specified for the given village, together with an estimate of their costs and justification.
- The basis in the Constitution – no constitutional guarantees
- Legal basis: the Act of 21 February 2014 on the Sołecki Fund
- The right to pass applications for funds under the Sołecki Fund is vested in residents of the village council
- Level of formalization: medium-formalized (it is necessary to separate the fund by the commune council and then submit the application by the village council at the indicated time, while the application for granting funds under the sołecki fund is not formalized)
Participatory budget is a tool for residents in the city to decide on spending part of the money. It is introduced on the basis of the laws on consultations and decisions are not binding for the authorities.
In Poland, it most often takes the form of consultations with residents, however, as already indicated, consultations are not binding on public authorities. A participatory budget based on the form of social consultations is a form of “social contract”, according to which the authority will allocate funds for the purposes indicated by the residents. Failure to comply with this ‘social contract’ does not result in the unlawfulness of spending, and is the basis for assessing the activities of the commune authorities during the upcoming elections.
Starting from the next term of the local government, legal changes will take effect new law regulation, according to which the civic budget was defined as a special kind of social consultations and the obligation to organize them in larger ones will be introduced. Under the new regulations, local authorities will be obliged to include in the budget resolution for the next year tasks selected within the framework of the citizens’ budget. Local authorities will be required to specify, by way of a resolution, formal requirements that the submitted projects should respond to; required number of subscribers’ signatures, rules for the assessment of submitted projects as to their compliance with the law, technical feasibility, formal requirements and appeal against the decision not to allow the draft to vote, and the rules for conducting votes, setting results and making them public, considering that the voting rules must ensure equality and directness of the vote.
As indicated earlier, consultations with residents should be anonymous to ensure freedom and freedom of opinion, so it is problematic from a legal and practical point of view to collect data about voters and their choices.
It is worth taking care to regulate the legal basis of the participatory budget, to make its decisions binding and to organize it in small local communities, which will allow real involvement of citizens in public affairs. This is important because the most important element of the participatory budget is not just voting and deciding on the allocation of public funds, but it is a discussion and clashing of positions. Then it is possible to actually diagnose the social needs and directions of development of the local community, which will consequently allow better allocation of public funds to meet the needs of residents. Participatory budgets in the form of large plebiscites, consisting of voting on the Internet do not lead to the creation of a culture of dialogue and talk about local issues, and can also antagonize the community.
In practice, the participatory budget covers only aa percent of a few percentof a of the entire commune budget although there are no obstacles to the budget covering a significant part of it.
In addition, it is worth ensuring that residents are involved not only in deciding on spending funds within the participatory budget, but that they are involved in planning the entire budget, for example as part of public consultations on the draft next year’s budget.
Polish law (Article 234 of the Public Finance Act) requires each municipality to adopt a resolution regarding the mode of work on the draft budget resolution. It is a good practice to regulate the submission of applications and demands by residents in this procedure. The draft budget can also be consulted with residents.
Example: In Szczecin, the creation of the city budget was regulated in the 2010 resolution (amended, inter alia, in 2013) on the mode of work on the draft budget resolution. In one of the stages (“Creating the budgetary framework”), it was regulated that by June 10 of each year preceding the budget year, the needs are identified in the form of collecting proposals and proposals for the draft budget from, among others, residents of the city. In addition, the city budget draft for the next year was the subject of organized consultations with residents, during which two open meetings with residents were organized.
- The basis in the Constitution – no constitutional guarantees
- Legal basis: the lack of statutory regulations regarding the participatory budget, starting from the next term of self-government authorities, the participatory budget will be a special form of consultations with residents, regulated in art. 5a of the Local Government Act, art. 3d law on poviat self-government, art. 10a of the Act on the self-government of the voivodship
- Due to the fact that in practice the regulations concerning consultations with residents are used, everyone has the right to take them, regardless of their age, there is no justification for introducing the age census
- Level of formalization: due to the practical application of regulations regarding consultation with residents, the level of formalization depends on local legal regulations, recommend the simplest procedure possible, allowing anonymous and free expression of opinions by residents and residents
Citizen’s legislative initiative on the local level is sometimes introduced into the gmina’s statute. Although currently there are no grounds at the level of the Act, from the next term of the local government (end of 2018), a new law will become effective, granting the right of the legislative initiative to the groups of residents.
In representative democracy, most cases are settled (and according to the essence of representative democracy, it should be so) by representatives, be it councillors or deputies or senators. This does not mean, however, that residents can not initiate a political process or signal representatives the existence of certain problems or social needs. One of the forms of communication is the civic legislative initiative. It is based on the fact that a group of residents submits a draft resolution to the municipal council. The council then discusses this project. It can accept the proposed resolution (including amendments), or reject the proposal if the majority of councillors do not accept it. A citizen’s legislative initiative assumes that if the project is submitted by the residents, the council is obliged to take care of the project, which does not mean the obligation to accept it.
Due to the fact that the final decision on the adoption of the proposed draft legal act is made by councillors, it is not advisable to introduce strict conditions, for example, the number of signatures required for the draft legal act. The smaller number of signatures required will make it possible to involve residents and create a practice of influencing local issues by proposing new legal regulations, which will allow a better diagnosis of the needs of residents.
Example: In Szczecin (about 400,000 inhabitants), in 2008, entered the possibility of adopting a legislative initiative by, among others, a group of at least 400 residents entered in the permanent register of voters.
In Ełk (about 61,000 inhabitants), it was assumed that the legislative initiative includes a group of people making up at least 1% of city residents who have an active electoral right calculated as at 31 December of the previous year.
In Polish law, local self-governments are entitled to determine who has the legislative initiative. This entitlement may be vested not only in the commune or council authorities, but it is also assumed that a group of residents may apply. Determining who is entitled to the legislative initiative should be specified in the statute of the local government unit (commune, poviat or voivodship).
A citizen’s legislative initiative cannot concern matters reserved for the competence of other bodies. For example, only an audit committee may apply to the council with a request to the commune council on granting or not granting discharge to the commune administrator. Only a commune mayor or city president can prepare and submit to the council a draft resolution regarding a long-term financial forecast, a budgetary resolution, or a budget provisional.
If in a given commune no regulations enabling a civic legislative initiative were adopted, interested persons may apply to the board with a request or petition – to adopt specific solutions. However, the inclusion of the complaint will involve the initiation of the next procedure – the adoption of a specific legal act. A civic legislative initiative has more direct effects (the process of a specific local law proposal) than an application or a petition.
From the next term of office of local authorities (end of 2018), change of law will take effect, according to which citizens legislative initiative will be guaranteed in each unit. Local authorities will be required to define detailed rules for bringing in civic initiatives, rules for establishing committees of resolution initiatives, rules for promoting citizens legislative initiative and formal requirements for submitted projects. The Act sets thresholds for the minimum size of groups of residents that will be able to take a legislative initiative:
- in the gmina up to 5000 inhabitants – 100 people
- in the gmina up to 20,000 inhabitants – 200 people
- in the gmina over 20,000 inhabitants – 300 people
- in the poviat up to 100,000 inhabitants – 300 people
- in the poviat above 100,000 inhabitants – 500 people
- in the voivodship – 1000 people.
THE CITIZENS ‘LEGISLATIVE INITIATIVE
- The basis in the Constitution – no constitutional guarantees
- Legal basis: lack of statutory regulations, currently it is up to the local authorities to regulate who is entitled to the legislative initiative (it can be determined that it belongs to a group of residents), and from the next term of the local authorities it will be the duty of define detailed rules for bringing in civic initiatives, rules for establishing committees of resolution initiatives, rules for promoting citizens’ legislative and formal requirements for submitted projects
- In practice, it is usually assumed that the citizens’ legislative initiative is vested in persons with an active electoral right, but it is recommended to regulate that it applies to every resident and every resident
- Level of formalization: medium-formalized, although in practice the procedure is not complicated (similar to the application procedure), the formalities involve the preparation of a draft new law and the acquisition of an appropriate number of signatures
Name voting on the local level is sometimes introduced into the gminas’ statute but there is no law that can be a basis to it. The situation will change from the next term of self-government authorities, which will have to publish on the internet a list of registered council votes.
As a rule, making decisions by councillors takes place openly, and is secret only in exceptional cases (especially when it comes to voting on personal matters). Nevertheless, the practical problem, in the case of overt voting, is to document how individual councillors vote. Most often in the minutes of meetings, information is recorded how many councillors voted for, how many votes against and how many stops. For citizens who want to control councillors and settle their activities, the importance of how individual councillors voted in particular resolutions. This need is particularly important when choosing representatives in single-mandate electoral districts. If the law does not provide for the obligation to vote in a personal manner by councillors and document the results of these votes, residentscan try to encourage the authorities, through an “administrative” or petition request, to document an open vote on their own initiative.
The Polish law specifies cases when a roll call is obligatory (for example, a council adopts a resolution to hold a referendum on the appeal of a commune head – whether from the failure to give the mayor discharge or for other reasons.
- The basis in the Constitution – no constitutional guarantees
- Legal basis: no statutory guarantees (the obligation to publish lists of registered council votes will become effective along with the next term of the local government, at the end of 2018), the law only specifies cases when registered personal votes are required
Text prepared by Bartosz Wilk from Citizens Network Watchdog Poland within the project “REBEL – REinforcing direct democracy in BELarus by transferring the good practice from V4 countries” supported by the Visegrad fund and by the Ministry of Foreign Affairs of the Kingdom of the Netherlands within the Eastern Partnership program.