Constitutional and legal analysis of the political situation in Ukraine (On 25 November 2004)


We, the undersigned – the professional experts in the field of Ukrainian Constitutional Law and other fields of law - declare that our constitutional and legal analysis of the political situation in Ukraine after the 2004 presidential election has been finished and its results has been officially announced comes to the following conclusions:

1. Most stages of the election process were accompanied by rude violations and blunt abuse of the fundamental constitutional principles in the application of election law, which are provided for in Article 71 of the Ukraine’s Constitution, and principles of election law, provided for in Articles 1, 2, 3, 5, 6, 8, 11, 13 of the Ukraine’s Law on Election of the President of Ukraine. 

First, the stage of compiling voter lists was accompanied by numerous mistakes in spelling of full names, dates of birth, omissions of names of many voters, who are legal residents within the limits of their precincts, as well as presence in the lists of those citizens, who died or left their precincts. As a result, tens of thousands of Ukrainian citizens, who have right to vote, were prevented from affecting their constitutional right to freely elect the President of Ukraine. Unusually high number of such mistakes, comparing to those at the previous presidential elections and the latest parliamentary election, during which those mistakes were extremely rare, convincingly evidences about the rude violation of the fundamental principle of the election process –  the universal suffrage.

Second, during the stage of election campaigning, there was open abuse of the constitutional principles of equal suffrage and free election, provided for in Article 71 of the Ukraine’s Constitution and Articles 3 and 6 of the Ukraine’s Law on Election of the President of Ukraine, as well as principles of lawfulness and prohibition of anyone’s unlawful intrusion in the election process; equality of all presidential candidates; freedom of election campaigning, equal opportunities for all presidential candidates in their access to the mass media; unbiased attitude toward the presidential candidates on the part of the central and local governmental agencies, businesses, offices and organizations, their top managers, other officials, which is provided for in Article 11 of the Ukraine’s Law on Election of the President of Ukraine.

There is convincing evidence of mass violations by all national audio and visual mass media of the fundamental principles of information activity: guarantee of the right to information; openness of, access to information, and freedom of its exchange; objectivity, plausibility of information; completeness and accuracy of information, which are provided for in Article 5 of the Ukraine’s Law on Information.

 The presidential candidate opposing to the current authorities was practically in the informational blockade arranged by the state. He was not only deprived of the opportunity to present basic points of his election program, but he was also deprived of the right to openly disprove the false information spread by any national audio or visual mass media. Moreover, during the election process, court rulings were not executed, according to which the courts obliged specific TV channels to provide live broadcast for the presidential candidate to disprove false and openly insulting information about him. In the same time, other presidential candidate, who represented the current authorities, enjoyed a most favorable regime in all national and regional mass media. As a result, voters were not provided with the conditions conducive to their free forming of their future vote. 

Besides, despite the direct legislative prohibition of election campaigning in support of one of the presidential candidates, overwhelming majority of top managers and other officials of central and local governmental agencies, top managers of businesses and offices partly owned by the state, openly took part in the election campaigning, thereby openly violating the principle of objectivity toward the presidential candidates on the part of executive power, local governmental agencies, businesses, offices, and organizations, their managers and other officials. 

Third, during the stage of voting, there were mass violations of principles of citizens’ free-will participation in elections, individual and secret vote. The prime evidences of it are the facts of organized mass voting off the precincts to which voters were registered, thereby the corresponding norm of the Ukraine’s Law on Election of the President of Ukraine was compromised. We consider that the voting off the registered precincts by organized groups of voters is a direct evidence of open abuse of the law. The prearranged movements of great numbers of voters were caused not by an objective need of those people to leave their places of permanent residence, but by will of the organizers of those movements. Therefore, we consider that this right was used not in order to provide for subjective voting right, but as a way to influence the free will of certain groups of voters, and, as a result, in order to compromise the actual will of citizens during the election. 

Besides, the mass violations of principles of free elections, secret direct vote, publicity and openness of the election process are evidenced by the facts of arbitrary and unlawful deprivation of right to be present at a polling station during the vote and during the vote count to members of the mass media, official observers of one of the presidential candidates, official observers from international organizations. The official observers in the Kharkiv region, the Kharkiv Human Rights Protection Group, possess the documented evidence of the above. 

2. The Law of Ukraine on Election of the President of Ukraine directly prohibits election campaigning by means of providing voters with money, goods, services, or help for free or on favorable terms, etc. Meanwhile, one of the presidential candidates, who held a position of Ukraine’s Prime Minister, used as one of the methods of his election campaigning the increase in social cash payoffs – pensions, scholarships, individual social benefits – at the expense of the state. To that measure, as to an advantage of this presidential candidate’s election program, managers of the current Prime Minister’ election campaign drove the primary attention.

We consider that, although these actions are not directly prohibited by the Ukraine’s Constitution and Law on Election of the President of Ukraine, they undoubtedly contradict the spirit of the Law and international standards of free and democratic elections, as they rudely violate principles of free elections and equal suffrage. Moreover, those cash payoffs were not included in the Ukraine’s Law on State Budget for 2004, therefore that decision on the part of the Ukraine’s Cabinet of Ministers was motivated solely by politics. Neither presidential candidate is entitled to use state funds for his own election campaigning. 

3. According to generally accepted international standards of democracy, its substance is constituted by the close adherence to legal procedure. Democracy is a complete certainty of the procedure along with the uncertainty of the results. Therefore, the mass violations of democratic principles during the preparation and conduct of the 2004 Ukraine’s presidential election almost completely deprive their outcome from their legal content. Simply speaking, elections with substantial violations of the required legal procedure cannot be considered elections as such.

In the view of the aforesaid, we consider that the mass violations of the fundamental principles of election process during the Ukraine’s presidential election make it impossible to establish an outcome of the actual will of Ukraine’s citizens. It violates fundamental Article 5 of the Ukraine’s constitution, according to which «the people is an undertaker of the sovereignty and source of the power in Ukraine,» and Article 3, according to which «rights and freedoms and their guarantees define the content and direction of the state’s activity.»

Therefore, we consider that the Supreme Court of Ukraine has a necessary legal basis to declare the decision on validation of the run-off election results made by the Central Election Commission of Ukraine (CVK) unlawful, cancel it, oblige the CVK to make a new decision according to the Ukraine’s Law on the Central Election Commission and Law on the Election of President of Ukraine, and declare invalid the voting results at those polling stations throughout Ukraine, where the mass violations of the fundamental principles of election law have been recorded.

Yuriy Baulin, Doctor of Law Sciences

Viktor Kolisnik, Doctor of Law Sciences

Volodymyr Bogutsky, Candidate of Law Sciences

Fedir Venislavskiy, Candidate of Law Sciences

Viktor Kichun, Candidate of Law Sciences

Oleksandr Kushnirenko, Candidate of Law Sciences

Boris Olkhovskiy, Candidate of Law Sciences

Stanislav Pogrebnyak, Candidate of Law Sciences

Vsevolod Rechitskiy, Candidate of Law Sciences

Mykhaylo Sibilyov, Candidate of Law Sciences

Tetyana Slinko, Candidate of Law Sciences

Yuriy Tkachenko, Candidate of Law Sciences

Robert Khorolskiy, Candidate of Law Sciences

Olena Shostko, Candidate of Law Sciences

This constitutional and legal analysis is open for signing by other experts in the field of law also.

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