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26.10.2004

Constitutional request on the official interpretation of the provisions of items 1 and 15 of Article 64 of the Law of Ukraine “On election of the President of Ukraine”.

   

According to item 2 of Article 150 of the Constitution of Ukraine, Article 41 of the Law of Ukraine “On Constitutional Court of Ukraine” and item 3 of Article 13 of the Law of Ukraine “On ombudsperson”, we are turning to the Constitutional Court of Ukraine with the request about the official interpretation of the provisions of items 1 and 15 of Article 64 of Law of Ukraine “On election of the President of Ukraine” (the Law, in what follows) of 5 March 1999 No. 474-ХІУ (“Vedomosti Verkhovnoy Rady”, 1999, No. 14, p. 81; 1999, No. 28, p. 237; 1999, No. 44, p. 387; 2001, No. 9, p. 38; 2003, No. 27, p. 209; 2003, No. 30, p. 247) (in the version of Law of Ukraine of 18 March 2004 No. 1630-ІУ (“Uriadovy Kuryer”, 2004, No. 64)).

The above-mentioned items of Article 64 of the Law, which introduce the restrictions concerning the conduction of election campaign, read:

«1. Participation in election campaign is prohibited to:

...2) organs of executive power and organs of local self-government, their officials…

15. It is prohibited to candidates to presidency, who occupy the posts in the organs of executive power and organs of local self-government, at state and communal enterprises, in institutions, establishments and organizations, military units, to use for pre-election agitation or other actions connected with election campaign their subordinates (during labor hours), service transport, communications, equipment, rooms, other objects and resources at the place of employment, to use service or production conferences, gatherings of labor collectives for the conduction of pre-election agitation”.

A collision arises from the quoted provisions: item 1 of Article 64 of the Law fully prohibits to the officials of the organs of executive power and organs of local self-government to take part in election campaign, and item 15 prohibits to the candidates to the President’s post to engage the above-mentioned persons only at labor hours.

In this connection the question appears about the correlation between the provisions of items 1 and 15 of Article 64 of the Law: whether item 15 concretizes item 1 or it stipulates the exception from the general rule envisaged by item 1 of Article 64 of the Law.

The system interpretation of item 15 of Article 64 and item 4 of Article 56 of the Law also evidences about certain collision of the norms. According to item 4 part of Article 56 of the Law, the Central election commission issues a warning to the candidate to presidency and the party (bloc), which nominated him, in the case, when the candidate, who occupied the posts in the organs of executive power and organs of local self-government, at state and communal enterprises, in organizations, establishments and organizations, military units, created in compliance with Ukrainian laws, used for pre-election agitation his subordinates, service transport, communications, equipment, rooms, other objects and resources at the place of employment. At that the time, at which the subordinates were used for the election campaign, is not mentioned. Yet, item 15 of the Law, which contains the restrictions connected with pre-election agitation, prohibits to engage the subordinates in the election campaign only during labor hours, thus permitting to engage them at other time. This collision not only breaks the integrity of the normative material, but also can essentially influence the course of the election campaign, since, on the one side, it contains the threat of the ungrounded bringing to responsibility of the candidates, who, being governed by item 15 of Article 64 of the Law, engage their subordinates in the election campaign, and, on the other side, restricts the right of citizens to support their chiefs, who are registered as candidates to the post of the President of Ukraine.

The considered problem entails the necessity of clarification of a series of juridical terms, used by legislators in the Law “On election of the President of Ukraine”, in particular, the term “subordinates”, mentioned in item 15 of Article 64, since this term is insufficiently distinct and may be interpreted ambiguously in practice. Which juridical features should be peculiar to the relations between candidates and their “subordinates” – control, accountability, direct leadership or something else? In particular, whether the head of local state administration can be regarded as a person, “subordinate” to the Prime Minister of Ukraine? Another element of item 15 of Article 64 needs the explanation: whether the formula “at the place of employment” concerns only service transport, communications, equipment, rooms or also the subordinates?

Besides, the question arises about the use of the term “the place of employment” mentioned in item 15 of Article 64 and item 4 of part 3 of Article 56. What should be regarded as “the place of employment” of a candidate to presidency, who is a state official: the organ, enterprise, establishment or organization, where he works, or the entire system (for instance, the system of a ministry or the system of the organs of executive power), to which he belongs?

Taking into account the fact that the possibility of participation in the election campaign of many citizens of Ukraine, who occupy posts in the organs of executive power and organs of local self-government, and, respectively, the form of realization by them of their constitutional right for participation in election, depends on the solution of this question, we, on the basis of Article 150 of the Constitution of Ukraine, item 4 of Article 13, Articles 39, 41 and 93 of the Law of Ukraine “On Constitutional Court of Ukraine”,

ASK:

To give the official interpretation of items 1 and 15 of Article 64 of the Law of Ukraine “On election of the President of Ukraine” in the part concerning the possibility of participation in election campaign of the officials of the organs of executive power and organs of local self-government and the criteria of relating them to the category of “subordinates” of the candidates to presidency, who occupy the posts in the organs of executive power and organs of local self-government, at state and communal enterprises, in institutions, establishments and organizations, military units. Moreover, in the context of these questions we ask to give the official interpretation of item 4 of part 3 of Article 56 of the Law of Ukraine “On election of the President of Ukraine”. Since the election campaign in Ukraine will end on 30 October 2004, we ask, in accordance with part 2 of Article 57 of the Law of Ukraine “On Constitutional Court of Ukraine”, to consider the request immediately.

Head of the Kharkov oblast state administration E. Kushnariov

Head of the Kharkov oblast council O. Kolesnik

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