The Law on the elections … and torture?
During the elections (both recent and previous ones) nobody reflected why there was so much unnecessary hype on voting day and during the following night and day. Nervous stress can be caused by many factors, but one of the main reasons (and common for almost all taking part in the elections) were electoral laws, since voting “day” for members of electoral commissions lasts not for one day, but for several days on end! The commissions, exhausted by long lack of sleep, convulsively count votes… Yet why is their work not organized in compliance with the demands of labour laws?
According to Article 83 § 1 of the Law of Ukraine “On the election of State Deputies of Ukraine”, “voting is carried out on election day from 7:00 to 22:00 without any breaks” The “workday” of the members of electoral commissions officially starts from the preparatory meeting at 6:15 (Article 82 § 3 of the same law), and in practice – much earlier, because in order to get to the meeting on time, the members must get up at 5 a.m. or even earlier. Thus a simple calculation shows that the “workday” of members of commissions during the election of 26 March 2006 lasted (without breaks!) at least 17 hours! And what then? Without any rest the “work-night” started, then “work-morning” and “workday” again, because “the vote counting of a district electoral commission is conducted without breaks” (Article 85 § 1 of the same “wise” law)… For example, representatives of most successful district commissions began to arrive at district commission No. 133 with protocols on their vote counts about 2 p.m. of the next day, 27 March (other members of the commissions were waiting at the station for probable specification of results). And they were the fastest! The unbroken “workday” of members of district electoral commissions on 26-27 March lasted at least 34 hours! And sometimes 40 or even more hours (the author was not able to wait for everybody). I would like to point out once more: all this was done without breaks, without sleep and any rest! (Territorial commissions and the Central Election Commission also worked, but their load was smaller). During the previous presidential elections the situation was similar, although the number of ballot papers was less (the elections of State Deputies on 26 March were combined with local elections of all levels).
It should be noted that, according to Article 50 of the Labour Code of Ukraine, “the normal working week of an employee cannot exceed 40 hours”. Yet during the elections the weekly norm in fact becomes a “workday”! In such a situation work in an electoral commission becomes real torture.
Article 127 of the Criminal Code of Ukraine states that torture is "the intentional infliction of severe physical pain and physical or mental suffering through beating, physical suffering or other violent acts with the purpose of forcing the victim to commit acts against their will"
Undoubtedly, long forced lack of sleep inflicts physical and mental sufferings because the person is aware of the burden of responsibility (including criminal) for the results of election. And when a person is in such state, it is easy to coerce him or her to do anything, including illegal things, for instance, taking (or not taking) certain decisions regarding the composition of the commission because theyre not in a state to think about the consequences (to think at all).
So what were our legislators thinking of when they adopted this law which flagrantly violates the Ukrainian Constitution, current laws and international legal acts on labour? Who benefits when members of commissions drop from tiredness during the vote count, when mistakes are made as a result of enormous nervous and physical stress, when the commissions have to recount votes again and again? The protocols were signed in an almost unconscious state. Such methods were successfully used in the 1930s by the NKVD during interrogations. After one or two days without sleep the poor victims confessed to anything. Members of the election commissions, exhausted with sleeplessness, also signed empty protocols, examples of which V. Yushchenko demonstrated to the public during the past presidential elections, not realizing that these protocols were the result of legislative activities of the Verkhovna Rada to which he also belonged.
Article 43 of the Constitution of Ukraine guarantees the right for proper, safe and healthy working conditions; Article 45 of our Basic Law envisages shortened working hours at night.
The Labour Code of Ukraine (LCU) “regulates labour relations of all employees”, and labour laws “establish a high level of work conditions and worldwide protection of labour rights” (Article 1 of the LCU). “Ukraine guarantees the equality of labour rights of all citizens” (Article 2-1 of the LCU). “Ukrainian legislation on labour consists of the Labour Code of Ukraine and other legislative acts of Ukraine, adopted in conformity with it” (Article 4 of the LCU).
The question must arise why the laws on the elections flagrantly violate labour law? Why are the conditions of work of members of electoral commissions terrible in terms of the length of the “workday”, to say nothing of other proper, safe and healthy work conditions, which are guaranteed by the Constitution even on election day?
Reasoning from the 40-hour workweek, the duration of a workday (shift) must be, on average, eight hours (based on a five-day work week). Of course, there are some exceptions depending on the conditions of production. A shift may be longer. The duration is established by corresponding labour and related legislation. Yet, “length of break between shifts must not be less than double the duration of the work in the previous shift (including the lunch time). Appointment of an employee to work during two shifts in a row is prohibited” (Article 59 of the LCU). And how many “shifts” in a row did the members of electoral commissions work if the duration of their “workday” was practically equal to the work week?
Labour legislation envisages not only shortened time of work at night, that is from 10 p.m. to 6 a.m. (Article 54 of the LCU), but also prohibits night work for women, who have children under 3 years (Articles 55 and 176 of the LCU), not to mention pregnant women and the disabled (Article 172). If one considers such excessive duration of work of electoral commission as overtime work, the labour laws contains corresponding bans and restrictions (Article 62 of the LCU). In particular, overtime work is used only in exceptional cases (for carrying out work needed to defend the country, prevention of public or natural catastrophes, industrial accidents, etc.). Moreover, “overtime work must not exceed four hours during two days in a row for one worker” (Article 65 of the LCU).
There are a number of prohibitions concerning the overtime work of women, who have children under 3 and disabled, depending on medical recommendations (Articles 63 and 172 of the LCU). However, nobody ever showed any interest as to whether the women working in electoral commissions had children or disabilities.
Article 66 of the LCU guarantees workers a break for rest and eating of no more than two hours. This break is not included in working time and must be provided, as a rule, four hours after the beginning of work. Yet, in out case the unbroken voting proceeded to the unbroken vote counting session. There may have been food on the hop, but no rest!
Moreover the work at night was not paid at all, which violated the demands of Article 108 of the LCU. Besides, until the very day of payment nobody knew for sure what they would get, since the amount changed several times (violation of Article 110 of the LCU).
According to the LCU, an owner or an agency authorized by the latter must strictly obey the legislation on labour and rules on labour protection, take measures to facilitate and enhance working conditions (Articles 141 and 158 of the LCU).
What did the members of such commissions have after an almost 40-hour “workday”? Nothing, except nervous disorder, exacerbation of chronic diseases and stress.
Of course, voting day can be compared to a public or natural catastrophe by the size of budget expenditures, but it does not mean that there is any pressing need to create such inhumane conditions of work of electoral commissions. It would not be too hard to divide the “unbroken” into two working days. At 10 p.m., after the end of voting and cancellation of the unused ballot papers, it should be advisable to seal the documentation of district electoral commission and the ballot-boxes and to leave all this under the protection of the police who guarded the papers before the beginning of voting. Of course, observers from political parties/blocs can remain on night watch (they, unlike members of commissions, can take turns). On the next day, at about 10 a.m., members of the commission could start counting votes. Thanks to the rest, this process will be much faster, the number of mistakes will be less too, and everything will be completed at the same time as after the night “shift”.
It seems that the laws on elections in our country have been adopted by people inclined to sado-masochism. Naturally, it is not so, at least I want to believe that the proportion of such people in the Verkhovna Rada is less than 100%. However, such an “approach” to the election process (especially to the vote count) is needed by somebody. Maybe it is time to think about civilized methods?