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17.11.2004

On court composition for consideration of the appeals against the activities of district election commissions

   

The Supreme Rada committee in charge of policy of law considered the request of A. Yarema, a deputy head of the Supreme Court of Ukraine, who brought up the question about the court composition for consideration by local courts of the appeals against decisions, activities or passivity of district election commissions concerning the preparation and conduction of election of the President of Ukraine.

Head of the committee Vasyl Onopenko pointed out that Article 2436 of the operating Criminal-Procedural Code of Ukraine envisaged jurisdiction of the cases on the appeals against decisions, activities or passivity of district election commissions concerning the preparation and conduction of election of the President of Ukraine and court composition for consideration of such cases. According to this article, the appeals against decisions, activities or passivity of district election commissions are considered by the Supreme Court of the Autonomous Republic of Crimea, oblast courts, Kyiv and Sevastopol city courts consisting of three judges.

Besides, part 3 of Article 2438 of the Code also determines court composition for consideration of the appeals against decisions, activities or passivity of district election commissions. In particular, the appeals against decisions, activities or passivity of district election commissions (except for the complaints against the mistakes made during forming of the lists of voters) are considered by corresponding courts consisting of three judges.

At the same time, remarked Onopenko, part 2 of Article 104 of the Law of Ukraine “On election of the President of Ukraine” of 18 March 2004 somewhat differently, in comparison to the CPC of Ukraine, determined the jurisdiction of the cases on the appeals against decisions, activities or passivity of district election commissions concerning the preparation and conduction of election of the President of Ukraine. So, according to part 2 of Article 104 of the Law, the appeals against the decisions, activities or passivity of district election commissions are handed to local general courts.

Thus, the question about jurisdiction of the cases on the appeals against decisions, activities or passivity of district election commissions is regulated differently by the Law of Ukraine “On election of the President of Ukraine” and the CPC of Ukraine.

The committee reckons that one should be guided by the norms of the Law of Ukraine “On election of the President of Ukraine”, since these norms came into force later than the corresponding provisions of the CPC (version of 1963). However, although this Law determines jurisdiction, it does not regulate the question about court composition for consideration of such cases. This question is regulated by the above-mentioned provisions of Articles 2436 and 2438 of the operating CPC of Ukraine.

As to the complaints against the mistakes made during forming of the lists of voters, the Committee pointed out, they should be considered according to the procedure stipulated by Chapter 30 of the CPC of Ukraine “Complaints against mistakes in the lists of voters and lists of citizens, who have the right to take part in referendum”. This Chapter is a special one to Chapter 30-Б of the CPC of Ukraine “Complaints against decisions, activities or passivity of Central election commission, territorial and district election commissions at election of the President of Ukraine and appeals on cancellation of registration of candidates to the post of the President of Ukraine”. Article 30 does not stipulate the court composition for consideration of the cases concerning the mistakes in the lists of voters, but, according to part 2 of Article 237 of the Code (this article is general regarding the cases that arise from administrative-legal relations), such cases are considered by one judge.

As a result of the discussion the Commission in charge of policy of law resolved that the appeals against the decisions, activities or passivity of district election commissions and their members should be handed to corresponding local courts (part 2 of Article 104 of the Law of Ukraine “On election of the President of Ukraine”). The appeals against decisions, activities or passivity of district election commissions (except for the complaints against the mistakes made during forming of the lists of voters) should be considered by corresponding courts consisting of three judges (part 1 of Article 2436, part 3 of Article 2438 of the CPC of Ukraine (version of 1963)).

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