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CDL-AD(2009)040
Or. Engl.
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICECOMMISSION)
JOINT
OPINION
ON THE LAW
ON AMENDING SOME LEGISLATIVE ACTS
ON THE
ELECTION OF THE PRESIDENT OF UKRAINE
adopted
by the Verkhovna Rada of Ukraine
on
24 July 2009
by
the Venice Commission
and
the
OSCE/ODIHR
Adopted by
the Council for Democratic Elections
at
its 30th meeting (Venice,8 October 2009)
and
by the VeniceCommission
at
its 80th Plenary Session (Venice,9-10 October 2009)
on
the basis of comments by
Ms Angelika
NUSSBERGER
(Substitute
member, Venice Commission, Germany)
Mr Jessie Pilgrim (Electoral expert, OSCE/ODIHR)
TABLE OF CONTENTS
I. Introduction. 3
II. Executive Summary. 4
III. Discussion of the
Presidential Election Law.. 5
A. Nomination and
Candidate Registration. 5
B. Election
Administration. 7
C. Observers and Transparency. 10
D. Voter Registration. 11
E. Media Regulations. 12
F. Campaign Finance
Provisions. 13
G. Campaigning. 15
H. Voting Procedures. 15
I. Counting
Procedures and the Determination of Results. 16
J. Election Disputes. 18
IV. Changes to the Code of
administrative procedure of Ukraine. 21
V. Changes to the Criminal
Code of Ukraine. 22
VI. Conclusion.
22
I.
Introduction
1.
This joint opinion on the Law of Ukraine “On Elections of the President of
Ukraine” and “The Law on amending some legislative acts on the election of the
President of Ukraine” (“the Election Law”) (CDL-EL(2009)014; cf. CDL-EL(2009)023)
is provided by the Organization for Security and Co-operation in Europe Office
for Democratic Institutions and Human Rights (OSCE/ODIHR) and the Council of
Europe’s European Commission for Democracy through Law (“Venice Commission”)
upon a request from the Ministry of Foreign Affairs of Ukraine.
Reports from previous OSCE/ODIHR and Council of Europe election observation
missions in Ukraine provideexcellent background for understanding the historical development of the
election legislation in Ukraine.
2.
This joint opinion is based on an unofficial English translation of the Law “On
Amending Some Legislative Acts of Ukraine on Elections of the President of
Ukraine” and the Law on Elections of the President of Ukraine. This joint
opinion cannot guarantee the accuracy of the translation reviewed, including
the numbering of articles, clauses, and sub-clauses. Any legal review based on
translated laws may be affected by issues of interpretation resulting from
translation.
3.
This joint opinion is intended to assist the authorities of Ukraine to further develop and improve the
legislative framework for the conduct of democratic elections in order to meet
OSCE commitments and Council of Europe andother international standards. The Venice
Commission and OSCE/ODIHR remain committed to provide assistance to further
improve the legal framework for elections in Ukraine. However, the
extent to which any amendments to the law can have a positive impact will
ultimately be determined by the level of good faith and political will
exhibited by state institutions and officials responsible for implementing and
upholding the law.
4. In
addition to the law, this opinion is based on:
-
an unofficial English translation of the Constitution of Ukraine;
-
the OSCE/ODIHR Final Report on the 2004 Presidential Election in Ukraine,
31 October,
21 November, and 26 December 2004;
-
the
OSCE/ODIHR Preliminary Recommendations on the 2004 Presidential Election Second
Round Re-Run, 26 December 2004;
- the Code of
Good Practice in Electoral Matters adopted by the Venice Commission, including the Guidelines
on Elections (CDL-AD(2002)023rev);
- Guidelines
for Reviewing a Legal Framework for Elections (Warsaw January 2001);
- The Document of
the CopenhagenMeeting of the Conference on the Human Dimension of the CSCE (29 June 1990),
-
The
European Convention for the Protection of Human Rights and Fundamental Freedoms
(1950), and
- Other international
and regional legal instruments and political commitments relevant to the
conduct of democratic elections.
5.
This opinion was adopted by the Council for Democratic Elections at its 30th
meeting (Venice, 8 October 2009) and by the Venice Commission at its 810th Plenary Session
(Venice, 9-10 October2009).
II.
Executive Summary
6. On
24 July 2009 the Parliament of Ukraine adopted amendments to some legal acts
regulating elections of the President of Ukraine during an extraordinary
session in its third and final reading. The
amendments introduce a number of important changes to the Criminal Code of
Ukraine, the Code of Administrative Legal Proceedings of Ukraine and the Law
“On Elections of the President of Ukraine”. Subsequently, the President of
Ukraine vetoed the amendments, veto that was overturned by the Parliament. The
President and 48 Members of Parliament appealed the law to the Constitutional Court.
The decision of the Court is pending as of the time of issuing this opinion.
7.
Although the amendments to the Election Law incorporate a number of important
recommendations, concerns previously expressed by the OSCE/ODIHR and the Venice
Commission remain unaddressed, including candidacy requirements and non-party
domestic observers. Furthermore, they raise a number of serious concerns that
mark a step backwards in some aspects of the election legislation. In
particular, amendments to the law which have negatively impacted its overall
effectiveness and which in particular limited the right to appeal election
results include:
-
Restrictive amendments that undermine the possibility to challenge
election results.
-
Restrictive amendments regarding electoral dispute resolution that
undermine the right of citizens, parties, and other stakeholders to seek
effective redress for violations and allow disputes to
remain un-adjudicated.
-
Provisions governing the determination of final election results by the
Central Election Commission which require amendment and clarification.
-
Provisions regulating the composition and the work of election
commissions that may inject instability in the election administration.
-
Excessive requirements for a monetary deposit in order to be a candidate.
-
Changes to the voting procedures of electoral commissions that could
lead to abuses.
-
The possibility
to make changes in the voter list up to one hour before the close of the poll.
8.
The law contains some positive measures aimed at promoting transparency and
accountability and deterring fraud. Notably, the law includes provisions
requiring all election commissions to distribute minutes of meetings to
official observers and candidates’ representatives. In addition, the law addresses
previous concerns over the use of absentee voting certificates, which were
subject to fraudulent use in past elections, by removing absentee voting
certificates from the law. Problematic provisions requiring the collection of
supporting signatures for candidacy have also been removed. Positively, the law
also attempts to address previous concerns about an overly restrictive campaign
spending limit. However, the total removal of such a limit may have negative
consequences.
9.
Besides new problematic provisions, there are also significant shortcomings
that remain unaddressed. Areas of continued concerns include:
-
Unreasonable restrictions on the right of candidacy.
-
Restrictive media provisions that can be applied to limit the full
exchange of political views and delivery of campaign messages from candidates
to voters.
-
The mechanism
for appointing members of electoral commissions.
-
The requirement
of residency qualification in the district for election commission membership.
-
Campaign finance provisions which are vague and potentially ineffective.
-
The failure of
the law to include a role for non-partisan domestic observers.
-
Provisions concerning the invalidation of results and recount of votes
that should be clarified and amended.
10.
It is also regrettable that despite of recommendations of the Parliamentary
Assembly of the Council of Europe and OSCE/ODIHR made since the previous presidential
elections in 2004 the amendments to the Law on the Elections of the President
of Ukraine have not been adopted at an earlier stage. Current amendments are
adopted less than six months before the presidential election scheduled for 17
January 2010.
III.
Discussion of the
Presidential Election Law
11.
This assessment of the Law on Election of the President of Ukraine (hereafter
Election Law) analyses three major sets of changes: amendments to the Law on
Presidential elections, changes to the Criminal Code and the Code of
criminal procedure on criminal liability of members of the electoral
commissions and changes to the Code of administrative procedure.
12. As
far as the analysis of the changes to the first law is concerned, amendments
are grouped according to nine general categories and not in the numerical order
in which articles appear in the law. The nine categories include: Nomination
and Candidate Registration, Election Administration, Observers and
Transparency, Voter Registration, Media Provisions, Campaign Finance
Provisions, Campaigning, Voting Procedures, Counting Procedures and Election
Results, and Election Disputes.
A. Nomination and Candidate Registration
13. It
is widely recognised in regional and international instruments that every
citizen has the right, free from discrimination and unreasonable restrictions
to take part in the conduct of public affairs, directly or through freely
chosen representatives, to vote and to be elected at genuine periodic
elections, and to have access, on general terms of equality, to public service
in his country.[3] The law
contains restrictions on candidacy which unduly restrict the opportunity for
all citizens to be elected on an equal basis to the office of President. Such
limitations on candidacy, as considered below, should ideally be amended to
ensure the possibility to exercise this fundamental right.
14. Articles 9.4 and 56.5 include a restriction on
candidacy based upon criminal conviction for any “intentional crime.” Such a
restriction is overly broad as it limits suffrage on the basis of any
conviction, regardless of the nature or severity of the crime. While suffrage
rights can be limited on the basis of criminal conviction, such restrictions
should generally only be enacted in cases of crimes of a serious nature. As such, the
OSCE/ODIHR and the VeniceCommission recommend that the law be amended to restrict candidacy only where a
person has been convicted of committing a crime of such a serious nature that
forfeiture of political rights is indeed proportionate to the crime committed.
15.
Article 44.2 of the Election Law requires that political parties be registered
for at least one year prior to election day in order
to be viable electoral participants and to nominate candidates. This
restriction imposes substantial limits on the political activities of parties
as it precludes new political parties from participating in the elections. The
OSCE/ODIHR and the VeniceCommission reiterate their belief that this article should be amended to lower
the requirement for political party formation prior to election
day.
16.
Articles 45 and 51 set out requirements on the procedures to be followed by
political parties (and election blocs) when they nominate candidates. These
provisions should not interfere excessively with the internal organisation of
political parties and be limited to what is necessary to ensure internal
democracy. In consequence, many of the provisions of these articles should be
removed. In particular, Articles 45.2 and 45.3 govern internal party (or
election bloc) functions including “the procedure for holding the inter-party
congress” (45.3.4), “the procedure for taking decisions” (45.3.6), and “a
candidate’s pre-election program” (51.1.3). Further, Article 52.1.1 allows the
CEC to deny the registration of a candidate on the basis of “a violation of the
procedure established by law for forming the election bloc or nominating the
candidate to the post of President of Ukraine.” These articles represent an
overly broad restriction on political parties as private associations. The
OSCE/ODIHR and the VeniceCommission recommend the revision of these provisions.
17.
Article 49 has been amended to (1) raise the amount of the electoral deposit
required to be a candidate for President and (2) raise the threshold of votes
required in order for the electoral deposit to be returned to a candidate. Both
amendments are of concern. Article 49(1) requires a financial deposit from the
party (election bloc) or independent candidate in the amount of 2,500,000 UAH
(approximately 206,000 EUR).
This financial requirement, which has been increased from 500,000 UAH in
previous versions of the law, is significantly high and represents an
unnecessary restriction on candidacy, particularly for candidates from small
parties or those who choose to contest the elections as independent candidates.
Such a requirement is particularly unfounded given the high threshold for
refund of this deposit. Article 49.2 appears to only provide restitution of
this deposit for the parties (election blocs) and candidates that reach a
run-off election. The law only addresses the run-off situation and creates a
situation where an outright winner does not even obtain return of the electoral
deposit. This has been amended from previous versions of the law which required
candidates to win 7% of the vote total for reimbursement. Both the deposit and
the threshold for refund in Article 49 seem excessive and could discourage
legitimate candidates from seeking office. This is unfortunate as the right to
be a candidate and seek office is a fundamental human right guaranteed by
international and European human rights instruments. The Venice
Commission Code of Good Practice in Electoral Matters states on this issue that
“the amount of the deposit and the number of votes needed for it to be
reimbursed should not be excessive.” The OSCE/ODIHR and the Venice Commission urge
the amendment of Article 49 to significantly decrease the amount of the
monetary deposit required for candidacy and the prerequisite for refund for
this deposit.
18. Concerns previously expressed by the OSCE/ODIHR regarding the
high number of signatures proving minimum support for candidacy have been
addressed. Previously, Articles 53-55 of the law laid out requirements for the
collection of 500,000 signatures of eligible voters to be submitted to the CEC
no later than 40 days before election day. These
articles have been removed in full and there is currently no requirement for a
show of minimum signature support. However, this was undermined by the
excessive increase of the monetary deposit.
19.
The provisions of the law for correction of defects in candidate registration
documents appear contradictory. Articles 52.3 and 52.4 imply that registration
documents can be corrected and resubmitted. However, Article 51.4 states that
“Documents, submitted to the Central Election Commission…may not be
resubmitted.” Candidates should not be denied registration based on a
procedural or technical defect in registration documents where the defect can
be corrected in a timely manner. In fact, the Election Law provides clear
language ensuring that nominees for election commission membership not be
denied on the basis of “technical clerical errors and inaccuracies” and
provides for the correction and resubmission in cases where such inaccuracies
are found (Article 23.4). Such language should be extended to include
nomination documents for presidential candidates. Candidates must be able to
contest elections without undue restriction and should be protected to an equal
or even greater extent than provided for nominees to election commission
membership. Therefore, the OSCE/ODIHR and the Venice Commission
recommend that the articles in question be clarified and amended to ensure
candidates have an opportunity to revise and resubmit nomination documents in a
timely manner when the CEC identifies errors of a technical or administrative
nature.
20.
The President of Ukraine iselected on the basis of a single, nation-wide constituency encompassing the
entirety of the territory of Ukraine (Article
19.1). For administrative purposes, elections within this constituency are
governed by three levels of election commissions: the Central Election
Commission (CEC), district
election commissions (DECs) which are established no later than 50 days prior
to an election (Article 23.2), and precinct election commissions (PECs) which
are established no later than 26 days prior to an election (Article 24.1). The
provisions on the formation of the CEC and most of its powers and duties are
set out in a separate law on the CEC, which is not the subject of the present
assessment.
21.
The commencement of the “election process” (Article 17.3) has been reduced from
120 days to 90 days before election day. This
reduction of 30 days has required that all timeframes in the election law be
similarly adjusted and reduces the time for election preparation by 25%.
Although it is certainly feasible to prepare and conduct credible democratic
elections within this time period, observation reports of past elections in
Ukraine have noted delays in the appointment and functioning of election
commissions. The reduced election calendar has also resulted in shorter
deadlines for filing and adjudicating complaints. The deadlines for the filing
and adjudication of complaints are extremely restrictive (often within 24 hours
of an alleged violation occurring, or only two days after a complaint having
been filed). These short deadlines may negatively impact the effectiveness of
dispute resolution proceedings.
22.
Articles 23 and 24 of the Election Law provide each candidate the right to
nominate two members to each DEC and PEC. These provisions are intended to
address the need for pluralism and multi-party participation in the
organization and conduct of elections, which is an important safeguard for
openness and transparency in the election process. Importantly, they require
that each candidate’s representatives be entitled to a proportional number of
chair, deputy chair, and secretary positions in commissions. However, these
provisions fail to state an appointment process that takes into consideration
geographical distribution of such appointments in election commissions
(Articles 23.8 and 24.11). This oversight potentially allows for circumvention
of the law through careful geographical weighting during the appointment of
positions. The OSCE/ODIHR and the VeniceCommission recommend that these provisions be amended to ensure balanced
distribution of chair, deputy chair and secretary positions at regional and
local levels.
23. The right to nominate members to election
commissions is restricted by residency requirements imposed as a condition to
membership. Articles 23.6 and 24.9 impose a requirement that a member of a DEC
or PEC be a voter “residing within the territorial election district or the
locality, on the territory of which the district is situated”. This requirement
may limit the ability of some candidates to nominate commission members in
localities where the candidate has little support. However, regardless of the
level of support a candidate has in the locality, the candidate has the right
to be represented in an election commission, as well as a legitimate interest
in the accurate counting and tabulation of voting results. Further, when this
requirement is considered with the lowered voting requirements for expulsion of
an election commission member (discussed below) the possibility is created for
excluding a candidate from having any nominees in election commissions in some
localities. This undermines the right of a candidate to make nominations for
election commission members and may diminish public confidence in the accuracy
of the results. The OSCE/ODIHR and the Venice Commission recommend that the
residency requirements of Articles 23.6 and 24.9 be accordingly removed from
the law.
24. Overall, the articles regulating election administration lack
sufficient requirements for the exercise of independence and impartiality on
the part of election commissions. The sole reliance on candidate
representatives to administer elections, depending on the political context,
can impede the development of an independent, professional, and efficient
election administration. While party and candidate representation in election
commissions is often an important safeguard to ensure that the opinions of all
candidates can be heard in the election administration, this must be balanced
with the obligation to ensure that all aspects of voting be politically
impartial and administratively effective.
As suggested by the OSCE/ODIHR 2004 Election Observation Mission to the
Ukraine Presidential Election,
provisions regarding the creation of election administration bodies at all
levels should be revised to include specific notification of requirements for
impartiality in the conduct of administrative duties.
25.
Under Article 30.2 the powers of an election commission may be terminated if
either a higher election commission or court decides the commission has
violated the law. Termination of an election commission is not an appropriate
response to such a finding and may open the door to abuses. Like any other
institution, an election commission may make mistakes. The election commission
should only be terminated in cases where the violations are serious, deliberate
and/or repeated. This will require a careful assessment by the superior
electoral commission or court. The OSCE/ODIHR and the Venice Commission strongly recommend that
Article 30.2 be accordingly amended.
26.
Article 30.9 is amended to lower the voting requirement for termination a DEC
and PEC membership or entire commission from 2/3 to 2/3 of the members present.
The Venice Commission Code of Good Practice in Electoral Matters states on this
issue that, "[i]t would make sense for decisions to be taken by a
qualified majority (e.g. 2/3 majority), so as to encourage debate between the
majority and at least one minority party.” This
amendment also raises concern about maintaining stability in the membership of
the election commissions during the administration of elections. Although this
provision is not per se problematic, this amendment may negatively
impact the administration of election processes.
27.
Article 20.6 provides that election precincts are formed by the DEC on the
basis of a “submission of executive committees” of local government. However,
this article fails to state whether these proposals are binding on DECs. The
OSCE/ODIHR and the VeniceCommission recommend that this provision should be clarified to clearly state
that the DEC establishes precincts on the basis of non-binding proposals.
28.
Article 20.9 establishes polling stations of three sizes: small, medium, and
large. Respectively, polling stations may range in size from 50-500 voters,
500-1,500 voters, and 1,500-3,000 voters. Previous assessments of the electoral
framework in Ukrainehave found polling stations with 3,000 voters to be an administrative burden
which decreases the effectiveness of voting operations. The
OSCE/ODIHR 2004 Election Observation Mission Final Report has recommended this
maximum number of voters be decreased to improve efficiency of election
commissions. Further, the law governing parliamentary elections in Ukraine
requires a maximum of 2,500 voters per station (and the OSCE/ODIHR has called
for a still greater reduction).
The OSCE/ODIHR and the Venice Commission recommend the law be amended to
provided that, in places where the required resources are available, the number
of voters allocated to a polling station be decreased to a more manageable
number, such as between 1,000 and 1,500. Ideally this amendment would be
likewise reflected in the law governing parliamentary elections to allow for
consistency and ease of administration, particularly in cases where multiple
elections are held on a single day.
29.
Positively, the law has been amended to remove the system for absentee voting
certificates to be issued to voters. This system had previously been proven
susceptible to high levels of fraud and its removal should help to deter
multiple voting and ensure an effective electoral process respecting the will
of the people.
30.
Inclusion in the law of compulsory training for all members of the election
commissions of regular and special polling stations should be considered. Such
training has been enacted in the draft law governing parliamentary elections. A similar
provision in the law governing presidential elections may potentially increase
the effectiveness and professionalism of election commissions at all
levels.
31.
Article 30.2 appears to grant a nominator of an election commission member the
unlimited right to remove the member at any time even if the member has been
performing his or her duties in a professional and legal manner. Such a
provision can subject election commission members to political pressure and
threats of removal should the commission member vote on issues contrary to
“instructions” given by the nominator. This is not a good practice as
commission members should act impartially without regard to the political
motivations of the nominator. Persons who hold positions in the election
administration must be completely free from political influence or pressure.
The Venice Commission Code of Good Practice notes: “The bodies appointing
members of electoral commissions must not be free to dismiss them at will.” The Venice Commission and the
OSCE/ODIHR strongly recommend that the law be revised to provide that a member
of an election commission can only be dismissed for failure to fulfil the
member’s legal duties imposed by the election legislation.
32. In
line with international instruments and guidelines, as well as
recommendations of the OSCE/ODIHR Election Observation Mission to the 2004
presidential election, it should be considered to include legal provisions for
the development of election and campaign materials in languages other than
Ukrainian which are commonly spoken within Ukraine. While Ukrainian is the
sole official language of the state, such provisions could help facilitate the
effective participation of all citizens in the political process on an equal
basis.
33.
The Election Law contains numerous mechanisms designed to enhance transparency
in the election process and promote accountability, including the provision of
results protocols to official observers and candidates’ representatives
(Article 79.7-8, Article 82.15-16) and the public posting of election results
at the PEC (Article 79.7) and DEC levels (Article 82.15). These mechanisms are
positive measures that can potentially deter fraud and increase public
confidence in the electoral results.
34.
Articles 66 through 70 provide that representatives of political parties,
candidates, and international observers and organisations have full access to
the process of the organisation of presidential election and the processing of the
election results. This includes the right to observe the pre-election period, a
limited right to participate in sessions of the election commissions, and the
right to observe voting (at the polling station and in the use of mobile ballot
boxes) and the processing of the results. However, the law specifies that the
rights of observers will be terminated after “the Central Election Commission
has determined results” (Article 68.2). This provision is overly restrictive
and should be reconsidered. Observers should be able to freely conduct
activities through the resolution of all electoral disputes.
35.
Importantly, Article 70.5.1 allows observers to be present at meetings of
election commissions. This right is further extended in Article 28.22, which
requires that documents and minutes of election commission meetings be made
available to observers and candidate representatives. Article 28.11 allows the
election commission to deprive such persons from attending commission session
if they “unlawfully obstruct its conduct.” While this exclusion can be
considered necessary in the light of administrative burdens associated with the
electoral process, the law should provide clear guidance on what constitutes
“unlawful obstruction” so as to promote transparency and prevent abuse of this
provision.
36.
In addition, Article 28.11 has been amended to lower the voting requirement in
election commissions for the removal of an authorized observer from 2/3 of the
total commission membership to a majority of the members present. Although a
majority voting requirement is generally acceptable, it is of concern that the
new provision can be used to limit transparency and exclude authorised
observers without justification.
TheOSCE/ODIHR and the VeniceCommission recommend not lowering the voting requirement in election commission
for the removal of an authorised observer.
37.
The Election Law does not provide for domestic non-partisan observers. The
OSCE/ODIHR and the VeniceCommission urge that the law be amended to provide broad rights of observation
for domestic non-partisan observer groups. It should be noted that such an
amendment has already been proposed for the draft law governing parliamentary
elections.
38.
All official observers are expressly given the right to take photographs and
make film and audio recordings (Articles 69 and 70). This is an unusual and
seemingly unnecessary provision. Filming voters as they go to the polling booth
and ballot box could have an intimidating effect and may diminish the secrecy
of the vote. The VeniceCommission and the OSCE/ODIHR recommend that this provision be carefully
considered, particularly in regard to its potential effect on voters and secrecy
of the vote.
39.
Article 70.5.5, which regulates the rights of international observers, should
be clarified. This provision limits the ability for international observers to
conduct press-conferences by requiring such conferences to comply “with the requirements
of the legislation of Ukraine”.Neither what such requirements entail nor the reason for their inclusion is
clear, particularly when considered in the light of universally recognised
principles of freedom of speech and expression. It is of concern that this
phrase could be misinterpreted or applied to suppress the public statements by
international observers. Further, Article 70.5.6 permits international
observers to establish groups of observers “subject to approval by the Central
Election Commission”. It should not be necessary for the CEC to approve the
operational and organisational activities of international observers. It is
also of concern that this phrase could be misinterpreted or applied to limit
the activities of international observers. The OSCE/ODIHR and the Venice Commission
recommend that theses phrases be deleted from Articles 70.5.5 and 70.5.6
40.
The adoption of the 2007 Law on State Voter Register of Ukraine changed the
process of compiling voter lists for elections in Ukraine. While historically voter
lists were created in an ad hoc manner for each electoral process, the new law
mandated the establishment of a national electronically housed voter register.
The bodies appointed with the upkeep of this register, the State Voter Register
Maintenance Bodies, are now responsible for the creation and dispersal of voter
list. The Law on State Voter Register is not the focus of this assessment.
However, there remain several points in the Election Law relevant to voter
registration that should be carefully considered.
41.
Citizens are permitted to inspect the draft voter list at their respective PEC
headquarters to ensure its accuracy and may apply for mistakes and omissions to
be corrected (Article 32.3). This right includes the ability to issue written
statements about inaccuracies involving third parties. The law should make it
clear that where an application is made in relation to a third party (not the
applicant), the third party must be informed of the application before it is
considered, given an opportunity to respond, and notified of the resulting
decision.
42.
Voters may file written complaints concerning inaccuracies in the voter list
from its initial display at the PEC premises (no later than 19 days prior to
elections in accordance with Articles 31.8 and 32.1) for a time period ending
one hour before the end of voting (Articles 32.5 and 32.6). Article 32.5 allows
such a complaint to be filed with a PEC or other election commission. Article
32.6 allows such a complaint to be filed with a local court. Although this
amendment creates a greater opportunity for the exercise of the right to vote,
it also creates increased opportunities for fraud.The rule allowing
to change voters’ lists on the election day should be
reconsidered.
43.
The PEC chairperson, deputy chairperson, and secretary have the right to
correct inaccuracies and technical errors in the voter list on election day if
“it is clear that it is the same voter who came to the polling station to vote
that is included on the voter list” (Article 35.8). The implications concerning
difficulties in its implementation should be considered. At least, the law should
set out the acceptable ways that the identity of a voter as the person
indicated on the voter list could “clearly” be established. The current
provision is vague and presents a real possibility of unintentional or
purposeful misuse. The OSCE/ODIHR has previously recommended the revision of
this provision.[20] Such a
recommendation is repeated here.
E. Media Regulations
44.
Article 11.2.6 of the law requires equal access for candidates to “mass media”.
Further, Article 13.4 requires the “mass media” to cover the election process
in an objective manner, and Article 60.1 requires equal conditions for
candidates during the campaign “in the mass media of all forms of ownership”.
These provisions are very broad and some qualification is required in relation
to privately owned mass media. Generally, there is recognition that different
rules apply for public and private media. Greater obligations can be placed on
“state-owned” media, such as the requirement to provide free time to
candidates. “Private” media generally cannot be compelled to present a
political message or provide political coverage. Although private media can be
required to provide equitable access and conditions to paid political
advertising, the provisions of the Election Law go well beyond this basic
principle. The OSCE/ODIHR and the Venice Commission recommend that these
provisions be amended to limit the obligation to provide election coverage and
equal access to State mass media and the regulation of private media be limited
to the area of paid political advertising and reasonable provisions related to
the publication of opinion polls.
45.
Article 62 severely restricts the number of candidate debates permitted on
television by limiting each candidate to one debate in a three hour period.
Article 62 is contrary to international standards and OSCE commitments
regarding freedom of opinion and expression. This Article
creates an overly burdensome limit on freedom of expression by prohibiting all
media, including private media, from allowing candidates to engage in debates
in media beyond a single occasion during one three hour period. This suppression
of the exchange of political views during an election is unwarranted. It is
true that according to the case-law of the European Court of Human Rights the
freedom of expression may be limited before elections (Bowman v. Great
Britain);
however, the regulation in Ukraine goes far beyond what may be “necessary in a
democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights
of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary”. The
OSCE/ODIHR and the VeniceCommission recommend that Article 62 be reformulated so that candidate debates
are not so severely restricted.
46.
Article 64.12 bans campaigning in “the foreign mass media, which operate on the
territory of Ukraine.” This restriction
implies that candidates would be barred from issuing campaign statements or
advertisements aimed at Ukrainian voters residing abroad. The ability to
present a candidate’s platform to voters is an inextricable part of the right
to be elected. If such a provision unduly limits the ability of candidates to
reach voters residing abroad, then it should be reconsidered. More generally,
such a rule would also appear to violate the citizen’s right to receive and
impart information regardless of frontiers as set out in paragraph 26.1 of the
OSCE Moscow Document.
The OSCE/ODIHR and the VeniceCommission recommend to reconsider this provision.
47.
The 15-day pre-election ban on publishing opinion polls is unusually long
(Article 64.13). The OSCE/ODIHR and the Venice Commission recommend that this silence
period for opinion polls be significantly shortened to be brought in line with
internationally accepted principles for the length of such silence periods.
The amendment of this provision is particularly important given the law
on parliamentary elections has reduced the length of the ban on publication of
opinion polls to 24 hours.
Ideally, the laws on presidential and parliamentary elections should contain
similar provisions on limitation of publication of opinion polls.
48.
Campaign finance provisions are included in the law in Articles 37-43. As
indicated by the OSCE/ODIHR Election Observation Mission Final Report to the
2004 presidential election, “Regulations covering campaign finance issues
should be strengthened to improve the transparency of funding of candidates’
election campaigns, with data on candidates’ campaign donations and expenditure
made publicly available.” In particular, while the law currently requires the
submission of financial reports in the post-election period (Article 42.4), it
does not specify that these reports be made publicly available. Further, the law
provides no specific regulations on what information should be included in
financial reports.
49.
The Election Law has been amended to remove a spending limit for campaign
expenditure. While the OSCE/ODIHR has previously recommended an increase in the
spending limit for elections,
the total removal of spending limits may be counterproductive. The removal of
the spending limit, coupled with the 2,5 mln.
Ukrainian hryvnas (approximately 206,000 EUR) electoral deposit (reimbursable
only to the winner or the two run-off candidates), may limit presidential
candidacy to a handful of wealthy elite. Although a candidate may be able to
pay the electoral deposit, the candidate’s chance of success may be
significantly diminished by a wealthy opponent unconstrained by any legal limit
on spending. A candidate should not be forced to rely on political party
structures for financial support since both OSCE commitments and the
International Covenant on Civil and Political Rights recognize the right to be
a candidate independently of political party affiliation or support. The
OSCE/ODIHR and the VeniceCommission recommend consideration of reinstating a spending limit which can
help ensure a level playing field while being sufficiently high to allow for
the free conduct of campaigning.
50.
Article 43.1 regulates the creation of campaign funds for candidates in
presidential election. This article permits campaign funds for candidates to
come from three separate sources. One of these sources – political party
contributions – is limited to a candidate nominated by a political party.
Paragraph 7.5 of the OSCE 1990 Copenhagen Document provides that citizens have
the right “to seek political or public office, individually or as representatives
of political parties or organizations, without discrimination”. Further, a
political party should have the right to provide financial support to an
independent candidate in an election where the political party has not
nominated its own candidate. In practice, therefore, this article discriminates
against independent candidates as well as against small parties who have not
nominated a candidate for election but should nonetheless enjoy the right to
support a candidate, financially and otherwise. The OSCE/ODIHR and the Venice Commission
recommend that the limiting phrase “of the party (parties that are members of
the election bloc) that nominated the candidate” in Article 43.1 be
reformulated so that an independent candidate can receive financial support
from political parties.
51.
Article 43.11 discriminates against independent candidates in regard to the
treatment of unused campaign funds. While candidates nominated by a party
(election bloc) have an opportunity to transfer unused funds into party accounts
at the end of the electoral process, the unused funds of independent candidates
are absorbed by the State Budget of Ukraine. The OSCE/ODIHR and the Venice Commission
recommend that this discriminatory provision be corrected.
52.
The termination of all disbursements from the campaign funds on the eve of the
election (Article 41.10) may be excessively cautious and raise practical
difficulties. Some service providers may not submit their invoices until after
the election. There is no reason that they should not be paid provided that a
sensible and enforced regime of financial supervision is in place. The
OSCE/ODIHR and the VeniceCommission recommend that this provision be amended accordingly.
53.
In Article 50.1 candidates seeking registration are required to submit a
property and income statement not only for themselves but also for their family
members. However, the law does not define which persons are “family” members.
This is a term that should be clearly defined in the law as there are legal
consequences for violation of the law.
54.
The law limits the right to engage in the pre-election campaign to citizens of Ukraine who
have the right to vote (Article 2.3). This limitation is contrary to
international and regional legal commitments which obligate the state to ensure
that all persons within their territorial jurisdiction have the right to
freedom of expression, association, and speech, which encompasses the right to
promote and support candidates and political parties, regardless of whether the
person possesses the right to vote.
Further, since a person must be 18 years of age to vote, the limitation
required by this article is contrary to the United Nations Convention on the
Rights of the Child.
The OSCE/ODIHR and the VeniceCommission recommend that this limitation be removed from clause 3 of Article
2. Articles 58.2, and 64.1.1 should also be amended so that foreign citizens
and stateless persons residing in Ukraine have the right to freely
express their opinion and to associate during the election campaign although
they are non-citizens.
55.
The Election Law provides detailed rules on the format, content, preparation
and storage of ballot papers and on the procedures for voting and the
processing of ballot papers. It also treats ballot papers as sensitive material
and establishes safeguards to guarantee its protection. These are positive
measures which should reduce the risk of uncertainty and inconsistencies in the
conduct of the election.
56.
The Law establishes in its article 2 par. 6 specific rules for voting of
citizens of Ukraineresiding abroad, specifying that only persons registered in Ukrainian
consulates can vote. Considering the important number of Ukrainian nationals
residing abroad the corresponding provisions of the law could be further
elaborated and establish specific procedures that could facilitate the
registration of voters who reside in localities other than the capital (i.e.
with no Ukrainian consulate).
57.
The responsibilities of the PEC includes making changes to the printed ballot
papers (Article 27.1.6) as determined by the CEC, (presumably to reflect the
withdrawal of a candidate or party from the election after the ballot papers
have been printed). However, no mark of any kind should be made on ballot
papers in order to avoid the danger of accidental or deliberate crossing out of
the wrong name. Further, manual markings will never be entirely uniform and
their use may help to identify ballot papers and compromise the secrecy of the
ballot. Instead, in case of withdrawals from the election, the electoral commissions
should publicise that fact by written and other announcements before polling
and inside the polling stations. The OSCE/ODIHR and the Venice Commission recommend that Article
27.1.6 be deleted from the law.
58.
The law contains detailed provisions regarding “control coupon[s]” created for
every ballot issued to a voter (Article 71.6). These removable coupons include
the type and date of elections, the number of the district and number of the
election precinct, space to insert the ordinal number at which the voter
appeared in the voter register and the signatures of the voter and issuing
election commission member (Articles 74.9 and 77.8). While such a provision is
designed to ensure the security of the polling procedures and dissuade fraudulent
voting, its utility may be undermined by the implications such a system
potentially has on secrecy of the ballot. Consideration should be given to
whether the inclusion of this information may unintentionally allow for a
ballot to be linked back to a particular voter. In particular, these articles
require clarification to ensure that there is no possibility for a commission
member to use “his/her surname, initials and signature on the designated place”
as a form of later identifying a cast ballot to a voter.
59.
Article 71.4 requires that candidates are listed on the ballot in alphabetical
order. Consideration should be given to drawing lots for candidate order on the
ballot, which is a fair way of the distribution of the candidate names in the
ballot.
60.
The OSCE/ODIHR recommended in their 2004 Election Observation MissionFinal Report that “The option to vote “against all” candidates be removed from
the ballot.” The final report states that, as a matter of principle, voters
should be encouraged to vote for their preferred candidate or party, and
thereby take responsibility for the body which is being elected. Therefore,
Article 71.4, which requires election ballots to include the option of checking
a box indicating “I do not support any candidate to the post of President of
Ukraine” should be reconsidered and potentially removed.
61.
Importantly, the law takes steps to ensure that all citizens, including persons
with disabilities, may effectively participate in public affairs through the
exercise of their suffrage rights. The system of mobile voting, which has been
carefully constructed with necessary security provisions, is commendable for
its role in ensuring this right and upholding Ukraine’s commitment to the UN
Convention on the Rights of Persons with Disabilities. However,
Article 77.6 requires that PEC members who conduct mobile voting should take
only “election ballots in the quantity equal to the number of voters”. Ideally,
this number should include all voters registered on the relevant “voter
register extract” in addition to a small specified number of spare ballots to
allow for the eventuality of a user of the mobile ballot box spoiling his/her
ballot.
62.
Article 77.1 allows a voter to wait until the eve of elections (12 hours before
voting begins) to request a mobile ballot. This places an undue burden on
election commissions, which should have more time to plan for mobile voting.
This is particularly important given concerns over the potential for fraud in
the process of mobile voting which necessitates deterrent measures including
careful administration of the process. The Venice Commission Code of Good
Practice in Electoral Matters states on this issue that, “mobile ballot boxes
should only be allowed under strict conditions, avoiding all risks of fraud.” The
OSCE/ODIHR and the VeniceCommission recommend that the deadline for requesting a mobile ballot be
adjusted to provide more time for election commissions to plan for secure
mobile voting.
63.
Article 80.1 permits the PEC to declare the election in the polling station
completely invalid. The basis for such a decision is that there have been
violations of the law which make it impossible to determine the voters’ will.
This is a decision which should probably only be taken by higher levels of the
election administration and ideally by a court charged with the resolution of
election related issues. Consequently, it would be a better practice to simply
note all irregularities in the PEC and DEC protocols, leaving decisions
concerning invalidation in a particular polling station to be made only by the
CEC or a court after consideration of all relevant protocols.
64.
A further difficulty with Article 80.1 is the provision which allows for
invalidation of the polling station results if the number of ballots found in
the ballot boxes exceeds the number of voters by ten percent. Such an arbitrary
standard of impermissible abuse serves no useful purpose. In effect, it
establishes a legal tolerance level for fraud of up to 9.99%, which cannot be
compatible with the proper conduct of elections. Invalidation of election results
should be possible only where it is shown that electoral violations raise valid
questionability as to the reliability of the results. It is also questionable
whether the 10% standard is consistent with the Ukraine Supreme Court’s 2005
decision invalidating the results of the second round of voting in the
presidential election. In the disputed 2005 presidential election, the results
of which were appealed to the Supreme Court of Ukraine, one of the arguments
presented against invalidation of the results of the second round of voting was
that the 10% standard had been not satisfied for specific polling stations. The
Supreme Court rejected this argument and ruled that a remedy for violation of
suffrage rights was required by Articles 8, 71, 103 and 104 of the Constitution
of Ukraine and Article 13 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, regardless of whether the 10% standard
was satisfied. Thus, retention of the 10% standard in the law appears to be
inconsistent with the 2005 decision of the Supreme Court. The OSCE/ODIHR
and the VeniceCommission recommend that repeal or careful amendment to this provision occur
at the earliest opportunity.
65.
Article 78.12 refers to “the absentee voting certificates.” However, the
procedure for allotting absentee voting certificates has been removed from the
law. This article should be amended accordingly to remove the reference to
absentee voting.
66.
The procedure for counting ballots in mobile ballot boxes is of concern
(Article 78.21). The procedure requires that all ballots in a mobile ballot box
be invalidated if the number of ballots in the mobile ballot box exceeds the
number stated on the control sheet. This provision treats voters unequally and
discriminates against mobile voters because this invalidation requirement does
not appear in the law in reference to regular ballot boxes. To ensure equal
suffrage, the same counting rules must apply to all voters. Further, the
existence of one ballot too many is not a sufficient justification for
invalidating all mobile ballots. The better practice is to apply the same rule
for addressing discrepancies in the number of ballots to all types of
ballots.
67.
The provisions for a count of the ballots by PEC members during the initial
count should be clarified. Article 78.29 provides that each member of the PEC
“shall during the vote count have the right to check or to check-count the
respective election ballots.” The scope and limits of this right should be
better defined, particularly as recounts should only be conducted transparently
and in such a way as to not interfere with the orderly conduct of poll closing
and vote tabulation.
68. An
amendment to Article 83.8 states:
“The district election
commission has to establish the election results in the territorial election
district not later than on the fifth day after the election day regardless of
the number of polling stations in the respective district as to which a decision
was adopted to recognize the election results invalid. Election results in the
territorial election district may not be recognized as invalid.”
69.
The new article 83.8 provides that the district commission has to establish the
voting results no later than on the fifth day after the election regardless of
whether results from all polling stations have reached the DEC. This provision
would allow to establish an election result without
taking into consideration the votes of a considerable part of the electorate. Furthermore, the tabulation of the
results at the DEC level, which may therefore not take into account the results
in all polling stations located in the district, “may not be recognized as
invalid”.
The OSCE/ODIHR and the Venice Commission strongly recommend to revise Article 83.8.
70.
Article 84.3 states that “A candidate is considered to be elected on the day of
election of the President of Ukraine when he/she received more than one half of
the votes cast by the voters who took part in voting.” This article, as
previously indicated by OSCE/ODIHR Election Observation Mission Reports, should be
revised to read “one half of all the valid votes cast”.
71. An
amendment to Article 86.2 removes the requirement to publish the election
results in two official gazettes. This may be a cost saving measure and it is
likely that electronic media provides extensive coverage of election results.
However, the amendment may have a negative impact on some citizens and is,
thus, noted. More
problematic, however, is that the prior version of Article 86 (titled “Official
Announcement of Election Results”), implies that publication in these two
gazettes is part of the process of announcement of the official results, which
provides the public of notice of the results and thereby triggers the
possibility for legal challenges. This amendment may negatively impact the
effectiveness of any legal challenge to the election results. The OSCE/ODIHR
and VeniceCommission recommend that this provision be revised.
72.
An amendment to Article 84.3 of the Election Law removes the requirement that
the CEC take a “decision” declaring the elected President and the requirement
of a CEC “protocol” on the results. The amendment only requires that the CEC
“draws minutes” on the election of the President. It is an important measure to
ensure public confidence that CEC prepares a detailed protocol of election
results. Ideally, such a protocol would provide details on all categories of
ballots in a summary table with results broken down to the polling station
level so that all results can be traced from the lowest level of voting through
the final tabulations. The OSCE/ODIHR and the Venice Commission recommend that Articles 84
and 86 be amended to require the CEC to prepare and publish such a summary
table. Transparency would be further established, as previously indicated by
the OSCE/ODIHR, through requirements that the CEC publish all results down to
the polling station level on its website.
73.
There have been significant amendments to the Election Law and the Code of
Administrative Legal Proceedings, which present serious concerns regarding
election dispute resolution. These amendments have injected uncertainty
concerning the right and ability for election results to be challenged and are
discussed below in detail.
74.
According to the new amendments to the Code of Administrative Legal Proceedings
there is no opportunity to challenge the determination of the election results
by a precinct or a district election commission (the provisions of the Code are
analysed more in detail below) (see the amended Article 109). Taken in
conjunction, these amendments seem to imply that election results can only be
challenged after the final tabulation by the CEC. This raises a further concern
as an amendment to Article 84.7 of the Election Law appears to limit the CEC’s
ability to consider any fraud occurring at lower level commissions on or after election day. The mentioned amendment to Article 84.7
states:
“Complaints
related to the organisation and conduct of elections of the President of
Ukraine, decisions, action or inaction of election commissions and members
thereof, state authorities, local self-government bodies, enterprises,
institutions, establishments and organisations, their officers and officials,
documents and actions of associations of citizens except for those that
pursuant to the law or the statute (provisions) of such association of citizens
belong to its internal organizational activities or its exclusive competence,
action or inaction of the mass media, their officers and officials, as well as other
subjects of the election process on the election day and the following days of
the election process are not submitted to the Central Election Commission. When
such complaints are submitted, the Central Election Commission leaves them
without consideration. Submission of such complaints does not impede
establishment of the results of election of the President of Ukraine and their
announcement”.
75. This provision indicates that the CEC
cannot take into consideration any complaint that presents allegations of
fraud, even fraud that brings the legitimacy of the election results into
question, when the complaint is submitted on election day
or the days thereafter. In other words, the CEC is legally obligated to
determine the results in disregard of credible allegations suggesting that the
results are not legitimate. In such a situation, the CEC is no longer an
important state institution ensuring the legitimacy of election results, but
rather is a mere mechanical functionary adding numbers on paper. This is of
concern because it is a reversal of the very legal principle that required the
judicial remedy for the fraudulent conduct in the 2004 presidential election.
In 2004, the Supreme Court of Ukraine noted, among other things, that 65
complaints were pending with the CEC at the time the CEC decided the official
election results.
The Supreme Court noted that it was impossible to establish the will of the
voters (election results), in part, due to the pending and unresolved 65
complaints filed with the CEC.
76. As discussed in paragraph 74 of this
document, an amendment to Article 84.3 of the Election Law removes the
requirement for the CEC to take a “decision” declaring the elected President
and the requirement of a CEC “protocol” on the results. The amendment only
requires that the CEC “draws minutes” on the election of the President.
Arguably, this hinders the right to challenge the election results because
there is no formal decision to appeal. This argument is supported by the
experience of 2004 presidential election, when the CEC itself decided to “leave
without consideration” complaints challenging DEC protocols because they were
not “decisions” or “acts”, but simply “mathematical calculations”.
77. An
amendment to Article 176.6 of the Code of Administrative Legal Proceedings
states: “Decisions, action or inaction of election commissions, including
decisions of the Central Election Commission on establishing the election
results, may be appealed pursuant to the procedure provided for in Article 172
of this Code.” However, based on the amendment to Article 84.3 of the Election
Law, it is not clear that the CEC determination of the election results is an
event that can be appealed under the Code of Administrative Legal Proceedings,
as it may not be considered a formal “decision” or “act.”
78. In
consequence, it is not clear to what extent the final election results are
subject to a legal challenge. It would appear that the DEC results cannot be
challenged as to their substantive content and that the substantive content of
the DEC results must be accepted by the CEC. This may imply that CEC tabulation
can only be challenged when it contains a mathematical error in the
summarisation of the DEC results, not on the basis of concerns of legitimacy of
the tabulated results themselves. These are matters that require careful
clarification. It is necessary that the law ensures an effective system for the
redress for alleged violations of suffrage rights and guarantees that the
election results properly reflect the will of the Ukrainian people. The
OSCE/ODIHR and the VeniceCommission urge the Ukrainian authorities to revise the law in order to provide
an effective system of appeals, in conformity with international standards.
79.
The provisions on deadlines within which complaints must be submitted (Article 94)
may benefit from reconsideration. Complaints concerning alleged violations
occurring in the pre-election period must be filed within five days of their
occurrence. Complaints concerning alleged violations occurring before polling
day must be lodged by the end of the day before the election (Article 94.3),
while complaints concerning alleged violations occurring on the election day
must be submitted to an election commission by the end of polling, and to a
higher election commission or court at the end of the day following the
election (Article 94.4). Clearly this is inadequate as lodging an appeal takes
time. In many cases it may be practically impossible to lodge an appeal within
these time periods, particularly if the violation is not discovered or communicated
immediately. The deadlines presently envisaged create an obvious risk of
injustice. While there is value in avoiding protracted challenges and
litigation pending the determination of the election results, time constraints
should not, however, be so restrictive as to undermine the prospect of
achieving a just solution to a legitimate complaint. The OSCE/ODIHR and
the VeniceCommission recommend these deadlines be carefully revised.
80.
Although there is some form of a right to appeal a “decision” of the CEC to the
Higher Administrative Court of Ukraine, there is no guarantee of an
adjudication of the appeal on its merits. The new Articles 99.4, 99.5 and 99.6
of the Election Law state:
4.
Powers and authorities of the court as provided for in Article 117 of the Code
of Administrative Legal Proceedings of Ukraine may not be applied by courts to
the disputes related to designation, preparation and conduct of elections.
5.
The court is to consider and resolve the administrative cases provided for in
this Law within two days after the end of voting at polling stations.
6.
The claims that were not considered by the court within the period provided for
in paragraph 5 of this Article are left without consideration.
81.
These provisions are of concern as they (1) might be applied to limit the scope
of relief available in court; (2) establish a very short deadline; and (3)
allow a court to ignore a complaint after two days and leave the complaint
“without consideration”. This is problematic. While timely resolution of
electoral disputes is fundamentally important, the proposed timeline is overly
restrictive and will likely unduly limit the ability for all electoral
stakeholders to have their claims addressed as appropriate. The need to provide
an effective remedy for all violations of suffrage rights and to guarantee a
fair and public hearing before an impartial court should
outweigh such a stringent guideline on the timing of dispute resolution. The
OSCE/ODIHR and the VeniceCommission strongly recommend that these provisions be removed or revised.
IV. Changes
to the Code of administrative procedure of Ukraine.
82. As
it has been mentioned in previous paragraphs, it appears that there is no
opportunity to challenge the determination of the election results by a
precinct or a district election commission. Article 109 of the Code of
Administrative Legal Proceedings previously listed three exemptions to a
court’s exercise of jurisdiction. An amendment to Article 109 has now added the
following fourth exemption: “4) an application concerning the minutes of the
territorial (district) election commission on establishing the election results
in the election district during the elections of the President of Ukraine,
people’s deputies of Ukraine, as well as the minutes on the results of
vote-tallying at a polling station, has been submitted.” This suggests that
lower election commission results cannot be challenged by a complaint. In
addition the amendment to Article 172.4 of the Code of Administrative Legal
Proceedings, states: “The minutes of a territorial (district) commission on
establishing the election results in a respective election district during the
elections of the President of Ukraine, people’s deputies of Ukraine, as well as
the minutes on the results of vote-tallying at a polling station may not be
contested in a court.” Further, an amendment to Article 18.4 of the Code of
Administrative Legal Proceedings, states: “The Higher Administrative Court of
Ukraine is to act as the first instance court with regard to the cases
concerning establishment of the election results or the results of the
all-Ukrainian referendum by the Central Election Commission.” (emphasis supplied here).
83.
New amendments to Article 177 of the Code of Administrative Legal Proceedings
seem to exclude any possibilities of review of decisions of the administrative
courts by the Supreme Court of Ukraine. This addition might be problematic
since it reduces the possibilities to review the decisions of administrative
courts and electoral administration.
84.
When one attempts to construe all the existing legal provisions and amendments
to the Code of Administrative Legal Proceedings and the Election Law together,
they appear contradictory and raise concern that the provisions will be applied
restrictively to limit remedies. It is of concern that many legitimate
complaints will be “left without consideration”. The Supreme Court of Ukraine
noted in its 2004 decision, reversing the CEC determination of election
results, that a state has the obligation under international human rights
instruments to provide an effective remedy for violations of suffrage rights.
It does not appear, based on the current legal provisions for challenging
election results, that there is a mechanism for providing an effective remedy
to challenge the presidential election results. It is important that the CEC
does not determine the final results of the election until it has received the
rulings on any complaints filed with the electoral commissions and the courts
which may have a bearing on the outcome of the election. This provision should
be clearly articulated in future iterations of the law. The OSCE/ODIHR
and the VeniceCommission strongly recommend that these provisions be revised in order to
ensure an effective system of appeal.
V. Changes to the Criminal Code of Ukraine
85. Article
1581 of the Criminal Code, which has been amended, imposes criminal
liability for “repeat voting at a polling station by a voter”. This text can be
interpreted to impose liability only when the voter votes more than once in the
same polling station. The OSCE/ODIHR and the Venice Commission recommend
that this article be amended to clearly state that multiple voting, whether in
the same polling station or several different polling stations, results in
criminal liability for the offender.
VI.
Conclusion
86.
This joint opinion of the Venice Commission and the OSCE/ODIHR on the Law
on Elections of the President and the Law on Amending Some Legislative Acts on
Election of the President of Ukraine is provided with the intention of
assisting the authorities in their stated objective to improve the legal
framework for democratic elections, and to bring the law more closely in line
with OSCE commitments, Council of Europe and other international standards for
the conduct of democratic elections.
87.
However, the recent amendments raise significant concerns and some important
aspects regulating the presidential elections can be considered as a step
backwards compared to previous legislation. Some of these amendments are not in
line with international standards and good practices, and should be revised
taking into consideration the recommendations stated in this review. Some
problematic areas of the legislation previously underscored by the OSCE/ODIHR
and the Venice Commission remain unaddressed.
88.
The Venice Commissionand the OSCE/ODIHR continue to stand ready to assist the authorities in their
efforts to create a legal framework for democratic elections in conformity with
OSCE commitments, Council of Europe and other international standards for
democratic elections.
