EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
Opinion
on
legislative provisions
concerning
early elections
in
Ukraine
Adopted by the Venice Commission
at its 71st
Plenary Session
(Venice, 1-2 June 2007)
on the basis of
comments by
Mr Ángel SÁnchez Navarro (Substitute member, Spain)
I.
Introduction
1.
Following the political crisis in Ukraine after the President signed an
Ukase on the pre-term termination of powers of the Verkhovna Rada, the
Parliamentary Assembly of the Council of Europe adopted a Resolution 1549 on 19
April 2007 on the Functioning of democratic institutions in Ukraine.
2.
The Parliamentary Assembly of the Council of Europe asked the Venice
Commission to prepare an opinion on the existing legislative basis for pre-term
parliamentary elections in Ukraine and on the possible ways to improve
electoral legislation based on European practice.
3.
The following opinion was prepared on the basis of comments by Mr A.
Sanchez Navarro (Substitute member, Spain) and adopted at the 71st
Plenary Session of the Venice Commission (Venice, 1-2 June 2007).
II.
General
4.
The current legislature was elected on 26 March
2006. Twomajor forces were facing each other for the seats in the Verkhovna Rada – the
Party of Regions of Mr Yanukovitch and the Yulia Timoshenko block (BYT). As a
result of the vote they received 32,14% and 22,29% respectively but neither
party got an absolute majority. As a consequence both forces had to form
coalitions. The BYT tried to form a parliamentary coalition with its former
partners from the Orange coalition – the pro-Presidential “Our Ukraine” and the Socialist party
of Ukraine, however, after several months of
negotiations this attempt failed. The socialist party joined a coalition led by
the Party of Regions, which formed a Government on 4 August 2006.
5.
From the very beginning the work of the parliament was marked by
successive crises.
The latest one resulted from the change of coalition affiliation by several MPs
from the opposition.
6.
On 2 April 2007 the President of Ukraine used his
constitutional powers and took a decision to terminating the powers of the
Verkhovna Rada by a decree. A group of MPs filed a complaint against this
decision at the Constitutional court of Ukraine. On 26 April
2007 thePresident of Ukraine issued a new decree on early elections to the Rada which cancelled
his decree of 2 April 2007 and fixed the new date of elections
on 24 June 2007. Following negotiations between the President, the
government and different political
forces on 27 May it was decided to hold the elections on 30 September
2007.
7.
The question to be answered in this context would be: do the
constitutional and other legal provisions in Ukraine provide for sufficient framework
for a clear and timely organisation of the vote and what are the possible ways
to conduct pre-term elections in accordance with the democratic standards?
III.
Constitutional and legislative
provisions concerning early elections
8.
In its Resolution 1549 the Parliamentary Assembly noted that:
“both regular and pre-term
elections constitute a legitimate democratic instrument for the people to
choose and control the authorities that act in their name. Early elections are
a normal practice in all democratic countries of the Council of Europe and as such could be accepted as a
key building block of the political compromise. However, the Assembly
underlines that for any elections to be considered democratic, they should be
conducted according to a legitimate procedure that allows fair campaigning and
free choice for voters.”
9.
As far as the general legal framework for organizing elections is
concerned, the regulatory levels should be clear and there should be a certain
stability of electoral law. The Code of good practice in electoral matters of
the Venice Commission gives clear reasons for it:
“[…] Stability of the law is crucial
to credibility of the electoral process, which is itself vital to consolidating
democracy. Rules which change frequently (…) may confuse voters.”
10.
In this respect pre-term elections are no exception to the rule. In this
context it can be suggested that changes to the legislation are to be made only
in case if such measure is necessary to protect the constitutional right of the
voters. Therefore, the existing legislation should be thoroughly assessed and
if there is a possibility to remedy to the problem through decisions of the
electoral management bodies, such option might be chosen.
11.
Pre-term elections are a serious event in a political life of any
country. Very often it is a period of tension and heated debate between
different political forces. However, state bodies responsible for organising the
vote should manage the electoral process in strict accordance with the
Constitution and the existing legislation. Political parties have to respect
the rules of the game as well, since fair elections provide them with the
legitimacy as political actors. In this context the role of the electoral
management bodies is essential – they implement the legislation and are in
principle independent in their decision-making both from other state
institutions and from political parties.
12.
In Ukraine provisions on early elections are
included in the Constitution and in the law “On the election of People’s
deputies of Ukraine”. It is important to note that the
law on the elections of deputies was adopted before the last constitutional
changes. As a consequence, there could be some problems in implementing some of
the constitutional provisions through the existing law.
13.
Provisions on how an early vote is organised are not described in the
Constitution. Article 77 paragraphs 2 and 3 establishes that early elections
must be held no later than 60 days after the dissolution of the Rada in
accordance with the provisions of the law on the election of the People’s
deputies of Ukraine.
14.
The law on the election of People’s deputies of Ukraine deals with early elections in its
article 16 paragraph 3 and article 102. The first provision just makes a
distinction between “regular” and “irregular” elections and
states that irregular ones are called by the President according to the
procedure established by the Constitution.
15.
However, article 102 establishes a rather detailed framework for
organising an early election. According to its provisions:
a)
the
same territorial constituencies that have been used for the previous elections
are used for the pre-term elections;
b)
special
and exceptional polling stations (or special or
exceptional polling districts as they appear in the translation of the
law) are created no later than 19 days before the vote;
c)
territorial
commissions are created not later than 50 days before the elections (parties
must apply for nomination of their members of the commissions no later than 53
days before the vote);
d)
polling
stations are established no later than 12 days before the vote;
e)
candidates
can be nominated immediately after the publication of the presidential decree
but no later than 40 days before the vote;
f)
registration of candidates for the deputies terminates 25 days
before the day of elections;
g)
informational posters of the parties (blocs), mentioned in
Article 54 of this law, are produced not later than 20 days before the day of
elections;
h)
voters’
lists are established by the territorial commissions and transmitted to the
polling stations no later than ten days before elections (the same term applies
to the special polling stations) ;
i)
the
Central Electoral Commission approves the form and text of ballot papers not
later than 24 days before the day of elections.
16.
As it appears from the above list the process of early elections and different
aspects of organizing the vote are covered by article 102 of the law. In the
case of the current pre-term elections in Ukraine it was decided to hold them on 30
September 2007. This negotiated solution provides the authorities and different
political forces with the additional time to prepare for the vote. However,
some of the elements of this procedure need a more detailed regulation.
17.
According to paragraph 2 of the article 17 of the Law on the Central
Electoral Commission of Ukraine it is responsible for the implementation of the
Constitutional and legislative provisions concerning the electoral process. It
has even the power to propose necessary changes to the legislation on elections
and referendums according to paragraph 6 of the same article. Another important
attribution of the Central Electoral Commission is the possibility to adopt
decisions on the practical issues concerning the organisation of the parliamentary
elections (paragraph 3 of the article 19). Some of the unclear provisions of
the electoral law can be completed through a set of specific decisions adopted
by the Electoral Commission of Ukraine and it should use this power more
actively. For example, such aspects as
the work of the electoral administration, the complaints and appeals procedure
and voters’ lists might need additional regulation.
18.
The law provides that territorial commissions are created “not later
than 50 days before the elections and parties apply for nomination of their
members of the commissions no later than 53 days before the vote”. Under
present circumstances and using the extended timeframe for organising elections
the Central Electoral Commission might envisage the possibility of creating
electoral commissions of lower levels as early as possible in order to
facilitate professional training of their members.
19.
The issue on complaints and appeals procedure in case of early elections
is not addressed by the provisions of the law. This might be problematic under
circumstances where the timeframe for different aspects of organising the vote
is reduced. However, in the case of the present pre-term elections, the electoral
management bodies have enough time to envisage measures providing the
participants to the electoral process with a possibility to appeal against any
decisions, actions or lack of action that might violate their electoral rights.
20.
The process of checking the accuracy of the voters’ lists could be one
of the major problems in the pre-term elections. The Law on the election of
People’s deputies of Ukraine provides that voters’ lists are established on the
basis of lists from the previous election (in present case the parliamentary
election of 26 March 2006). The law on the voter register adopted by the Rada
in March 2007 will enter into force on 1 October 2007. According to the
information received by the Commission the voters’ register does not exist yet.
The current provisions might not be enough for the electoral commissions and
other competent bodies to carry out the work of checking and up-dating the
voters’ lists. However, if the competent authorities, including the Central
Electoral Commission address the issue in a timely manner this problem can be
solved before 30 September 2007.
21.
The organisation of elections both regular and irregular in Ukraine is regulated through several laws.
As it has been already mentioned, in the case of pre-term elections there is a
very limited possibility for interpreting the way how these laws can be applied
and combined. In their joint 2006 opinion on the Law on elections of peoples
deputies of Ukraine the Venice Commission and
OSCE/ODIHR recommended the authorities to assess “whether the combination of
various electoral rules into a single electoral code would be feasible”.
This recommendation should be seriously considered by the authorities.
IV.
Conclusions
22.
The Constitution, as well as the electoral law, provide for the basic
elements which must rule special or pre-term elections. Nevertheless, some
legislative provisions and procedural aspects of their implementation seem to
be unclear and/or not sufficient for fully ensuring the electoral rights of
voters. This can seriously compromise the electoral process and create
political and social unrest.
23.
In order to minimise the above-mentioned shortcomings the Central
Electoral Commission should fully use its powers in implementing the existing
legislative provisions on pre-term elections. Its role is essential in
organising the work of the lower commissions, registering the candidates and
checking the voters’ lists. In the context of early elections the political
climate is tense and there is a risk of confrontation between political forces.
The Central electoral commission’s role is essential during the pre-electoral
period and it should not be subjected to undue pressure from other state
authorities and from different political forces. If the Central Electoral
Commission uses its powers there should be no obstacles to holding of early
elections in a manner compatible with the European standards.
24.
The legislative provisions should indicate clearly the terms for a
timely allocation of financial resources to organise the pre-term elections.
25.
Decisions taken within their competencies by different state authorities
and courts should be implemented in a timely way otherwise the voters’ trust in
the electoral process could be seriously undermined.
Appendix I
DECREE
of the President of Ukraine
No. 264/2007 (cancelled
by the decree of 26 April 2007)
On the Pre-Term
Termination of Powers of the Verkhovna Rada of Ukraine
Recently a situation has emerged when the majority in the
Verkhovna Rada of Ukraine was ignoring the constitutional
requirements with regard to the formation of the coalition of deputy factions. To
replace isolated instances of inclusion of some people's deputies into
composition of the deputy factions' coalition, which had taken place during the
formation of the Anti-crisis Coalition in July 2006, a new practice of massive
enlargement of the coalition on the basis of individual or group membership has
appeared. Such practice is a flagrant violation of Article 83 of the
Constitution of Ukraine which provides for formation of the deputy factions'
coalition in the Verkhovna Rada of Ukraine, upon results of elections and on
the basis of agreed political positions, exclusively by deputy factions.
The violation of the constitutional provisions concerning
the formation of the deputy factions' coalition in the Verkhovna Rada of
Ukraine distorts results of people's expression of will, carried out in
accordance with Article 69 of the Constitution of Ukraine through parliamentary
elections in March 2006, is a negation of constitutional election rights of
citizens of Ukraine, results in the neglect of the constitutional principle of
people's sovereignty, provided for in Article 5 § 2 and 3 of the Basic Law of
Ukraine. Such developments are a real pre-condition for usurpation of power in Ukraine which is prohibited by Article 5 §
4 of the Constitution of Ukraine. This also threatens national security, causes
destabilisation of the political situation in the state, and creates potential
risk to the state sovereignty.
According to Article 102 § 2 of the Constitution of Ukraine
the President of Ukraine is the guarantor of state sovereignty and territorial
indivisibility of Ukraine, the observance of the Constitution of Ukraine and
human and citizens' rights and freedoms. Such constitutional status of the
President of Ukraine obliges him to take actions to halt violations of the
Constitution of Ukraine, of citizens' rights, to prevent threats to the state
sovereignty and territorial integrity of the state. This, in particular,
entails an obligation to effect early termination of powers of the parliament
in the case of violation by the latter of the Basic Law of Ukraine, if there
are no other means to prevent flagrant violations of the Constitution of
Ukraine by the Verkhovna Rada of Ukraine.
Taking into account the above mentioned and being governed
by Article 5 § 2-4, Article 77 § 2, Article 83 § 6, Article 106 § 1 (1, 7) and
3 of the Constitution of Ukraine, in order to implement Article 102 § 2 I
hereby decree:
1.
To
terminate powers of the Verkhovna Rada of Ukraine of the V convocation before
expiration of its term of office.
2.
To
propose to people's deputies of Ukraine to continue to carry out their
powers which are not directly related to the powers of the Verkhovna Rada of Ukraine.
3.
To
designate extraordinary elections to the Verkhovna Rada of Ukraine on 27 may 2007.
4.
The
Cabinet of Minister of Ukraine shall ensure financing of the extraordinary
elections to the Verkhovna Rada of Ukraine.
5.
The
Central Election Commission shall ensure the holding of the extraordinary
elections to the Verkhovna Rada of Ukraine in accordance with the Constitution
of Ukraine, Law of Ukraine "On the Elections of People's Deputies of
Ukraine", and other laws of Ukraine.
6.
This
decree comes into effect from the day of its official publication.
President of Ukraine
Viktor YUSHCHENKO
2 April 2007
Appendix II
Articles
16 and 102 of the Law of Ukraine On Elections of People’s Deputies
of Ukraine
As
amended by laws:
N 3099-IV ( 3099-15 ) of 17.11.2005, N 3368-IV ( 3368-15 ) of 19.01.2006, N 10-11,N 3437-IV
(3437-15) of 09.02.2006, N
10-11, ст.98 N 3519-IV ( 3519-15
) of 14.03.2006.
Article 16. Terms of conduct of elections
1. Regular
elections of the deputies are conducted on the last week of March of the last
year of powers of the Verkhovna Rada of Ukraine, the term of which is determined by
the Constitution of Ukraine.
2.
Electoral process of regular elections of the deputies begins 120 days before
the day of elections. The Central Electoral Commission announces the beginning
of an electoral process not later than 125 days before the day of elections.
3.
Irregular elections of the deputies are conducted on the last week of the
sixty-day period after publication of the Decree of the President of Ukraine on
pre-term termination of powers of the Verkhovna Rada of Ukraine, issued according to the
Constitution of Ukraine.
4.
Electoral process of irregular elections of the deputies starts on the day
following the publication of the Decree of the President of Ukraine, mentioned
in part three of this Article.
5.
Electoral process is terminated by official declaration of the results of
elections of the deputies by the Central Electoral Commission.
1.
Territorial constituencies created for conduct of the last elections of
people’s deputies of Ukraine are used for conduct of irregular
elections of the deputies.
2. Special
or exceptional polling districts for conduct of irregular elections are created
not later than 19 days before the day of elections and in exceptional case of
creation of a polling district in accordance with Article 19 part eleven of
this Law – not later than 5 days before the day of elections in the order
established by this Law.
3.
Territorial electoral commissions are created not later than 50 days before the
day of elections upon the applications of parties (blocs) – subjects of
electoral process of last elections of people’s deputies of Ukraine, which are submitted to the Central
Electoral Commission not later than 53 days before the day of elections.
4. Polling
district electoral commissions are created not later than 12 days before the
day of elections, and in exceptional case of creation of a polling district in
accordance with Article 19 part eleven of this Law – at the same time with
creation of polling districts upon applications of republic in the Autonomous
Crimea Republic, oblast, local in city Kyiv or Sevastopol organization of a
party (bloc) – subject of electoral process, which are submitted to the
territorial electoral commission 15 days before the day of elections in the
order established by Article 23 of this Law.
5.
Nomination of candidates for the deputies starts on the next day after
publication of the Decree of the President of Ukraine on pre-term termination
of powers of the Verkhovna Rada of Ukraine, and terminates 40 days before the day
of elections.
6.
Submission of documents for registration of candidates for the deputies to the
Central Electoral Commission terminates 30 days before the day of elections.
Registration of candidates for the deputies terminates 25 days before the day of
elections.
7.
Informational posters of the parties (blocs), mentioned in Article 54 of this
law, are produced not later than 20 days before the day of elections.
8. Lists
of electors in exceptional polling districts are prepared according to the
procedure, established by law and are transmitted to the territorial
commissions no later than 20 days before the elections.
9. Territorial electoral commissions transmit
one copy of the electoral list to the poling district electoral commissions no
later than ten days before the elections.
10. Lists
of electors in special polling stations are established according to the law no
later than 10 days before the elections.
11. Lists
of electors in foreign polling districts are drawn up in the order envisaged by
this Law. Lists of electors are transmitted to the foreign poling districts no
later than ten days before elections. Lists of electors in foreign polling
districts are verified according to the provisions of the present law.
12.
The Central Electoral Commission approves the form and text of a ballot papers
not later than 24 days before the day of elections.
