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08.09.2005

A CONSTITUTIONAL AND LEGAL ANALYSIS OF THE POLITICAL SITUATION IN UKRAINE

   

 (As of 25 November 2004)

We, the undersigned, being qualified specialists in the field of Ukrainian Constitutional Law and in other fields of law, hereby state that our constitutional and legal analysis of the political situation in Ukraine as it has developed as a result of the regular presidential elections in 2004 and the announcement of the official results of these, suggest the following:

1. The majority of stages of the election process were accompanied by grave violations and blatant disregard for fundamental constitutional principles of implementing election law, as set out in Article 71 of the Constitution of Ukraine, and principles of election law, set out in Articles 1,2,3,5,6,8,11 and 13 of the Law of Ukraine «On the Ukrainian Presidential elections».

First, at the stage of compiling voter lists a large number of mistakes were made in writing people’s last names, first names, their patronymic or date of birth. A lot of names of people who live and are legally registered in a given Territorial Electoral District (TED) were left off the voter lists, while, on the other hand, there were people on the lists who had died or left the territory of the particular TED. As a result of this, tens of thousands of Ukrainian citizens who were entitled to vote, could not carry out their constitutional right to freely vote for President of Ukraine. The extraordinarily high instance of such mistakes in comparison with previous regular Presidential elections, and with the last regular elections of State Deputies of Ukraine, at which similar cases occurred extremely rarely, are convincing proof that we have here a flagrant violation of the fundamental principle of the election process – the universal right to vote.

Secondly, at the pre-election campaign stage there was open disregard for the following: the constitutional principles of equal electoral rights and free elections, set out in Article 71 of the Constitution of Ukraine, and in Articles 3 and 6 of the Law of Ukraine «On the Ukrainian Presidential elections»; the principles of legality and the prohibition on unlawful intrusion by anybody into the election process; public access and openness of the election process; the equality of all Presidential candidates; freedom of election campaigning; equal opportunities for access of Presidential candidates to the mass media; impartiality as far as the candidates are concerned of State executive bodies, bodies of local self-government, enterprises, institutes and organizations, their managerial staff and other officials as set out in Article 11 of the Law of Ukraine «On the Ukrainian Presidential elections»

This is clearly demonstrated by mass violations on the part of all national audiovisual means of mass media of basic principles governing activity in the field of information: the guarantee of the right to information; openness, accessibility of information and freedom to share information; objectivity, reliability of information; fullness and accuracy of information, which are set out in Article 5 of the Law of Ukraine «On Information».

The Presidential candidate opposing the regime’s candidate found himself in a virtual State information blockade, since not only was he not given the opportunity through national television channels of communicating to the electors the main points of his pre-election campaign, but he was also deprived of the right to openly refute false information which was being spread about him by this or that national audio or visual media outlet.

Furthermore, during the election process court decisions were not carried out which obliged the relevant television channels to provide the Presidential candidate with live broadcast time in which to refute false and openly offensive information being spread about him. At the same time the other Presidential candidate representing the regime enjoyed favorable conditions in all national and regional sources of the mass media. As a result of this, voters were not ensured conditions for the free formation of their future expression of will.

In addition, despite direct legislative prohibition, the vast majority of managerial staff and other officials of central and local bodies of executive power, as well as managers of enterprises and institutions partially owned by the State, took active part in the election campaign on the side of one of the Presidential candidates, this openly violating the principle of impartiality as regards Presidential candidates of State executive bodies, bodies of local self-government, enterprises, institutions and organizations, their managers and other officials.

Thirdly, during the actual voting, there were mass violations of the principles of voluntary participation of citizens in the elections, voting for oneself, and the confidentiality of the ballot box. This is most evident from the cases of mass voting by groups of individuals using absentee ballots, which effectively distorted the relevant norm of the law of Ukraine «On the Ukrainian Presidential elections». We consider that voting with the use of absentee ballots by organized groups of voters demonstrates an open abuse of the law. The prearranged movement of large numbers of voters was not dictated by an objective need for these people to leave their normal place of residence on voting day, but by the will of the organizers of this movement. We therefore consider that the given right was used not for the purpose of ensuring subjective voting right, but as a method of exerting influence on the free expression of will of the given groups of voters, and as a consequence, for the purpose of distorting the real will of citizens at the elections.

Furthermore, evidence of mass violations of the principles of free elections, of the confidentiality of direct voting, of the public nature and openness of the election process can be seen in the cases of arbitrary and illegal cancellation of the right of press representatives, official observers from one of the Presidential candidates and official observers from international organizations to be present at polling stations while the voting was taking place or during the vote count. The relevant documentary proof is held by official observers from the Kharkiv region and by the Kharkiv Human Rights Protection Group.

2. In accordance with the Law of Ukraine «On the Ukrainian Presidential elections», it is directly forbidden to carry out campaigning activity by means of offering voters money or goods, services, work etc free of charge or at a specially reduced rate. Despite this, one of the Presidential candidates, presently holding the post of Prime Minister of Ukraine, used as one form of pre-election campaigning an increase at the expense of the State in social monetary payments – pensions, student grants, individual social security assistance, etc. It was precisely this step, as a strong point of the election program of the Presidential candidate, that formed the main focus of attention of the managers of the election campaign of the current Prime Minister of Ukraine.

We believe, that. while such activities are not directly prohibited by the Constitution of Ukraine or the Law of Ukraine «On the Ukrainian Presidential elections», they undoubtedly run counter to the spirit of the Law and to international standards of free and democratic elections, since they flagrantly violate the principles of free elections and of equal voting rights. Moreover, the payments made had not been allowed for in the law of Ukraine «On the State budget for 2004», and therefore the decision of the Cabinet of Ministers of Ukraine was based on political considerations. No Presidential candidate may use national revenue in order to carry out his own election campaign.

3. In accordance with universally recognized international standards of democracy, the essence of democracy lies specifically in the absolute adherence to the demands of legal procedure. Democracy is the total certainty of procedure with lack of predictability of results. Therefore the mass violations of democratic principles during the preparation for and running of the elections for President of Ukraine in 2004 render the results almost entirely devoid of any legal meaning. In the simplest terms, elections with significant violations of the requirements of legal procedure can quite simply not be considered elections at all.

In view of the above, we consider that the mass violations of the fundamental principles of the election process during the Ukrainian Presidential elections make it impossible to establish the real will of the citizens of Ukraine, which in turn violates Article 5 of the Constitution of Ukraine, according to which: «The people are the bearers of sovereignty and the only source of power in Ukraine.», as well as Article 3 of the Constitution of Ukraine, which states: «Human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State.»

We therefore believe that the Supreme Court of Ukraine have all legal grounds for declaring the decision of the Central Election Commission of Ukraine to validate the results of the second round of voting to be illegal and to annul the decision, obliging the CEC when making a new decision in accordance with the law of Ukraine «On the Central Election Commission» as well as with the Law of Ukraine «On the Ukrainian Presidential elections» to declare null and void the results of voting at those polling stations around Ukraine where mass violations of fundamental principles of electoral law were recorded.

Yury Baulin, Doctor of Law

Viktor Kolisnyk, Doctor of Law

Volodymyr Bohutsky, Candidate of Law

Fedir Venislavsky, Candidate of Law

Viktor Kychun, Candidate of Law

Oleksandr Kushnirenko, Candidate of Law

Boris Olkhovsky, Candidate of Law

Stanislav Pogrebnyak, Candidate of Law

Vsevolod Rechitsky, Candidate of Law

Mikhaylo Sibilyov, Candidate of Law

Tetyana Slinko, Candidate of Law

Yury Tkachenko, Candidate of Law

Robert Khorolsky, Candidate of Law

Olena Shostko, Candidate of Law

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