Venice Commission also has serious criticism of the law on the Presidential elections
While the officially passed Opinion No. 546 / 2009 has not yet been posted on the Venice Commission’s site, it seems unlikely that it will differ radically from the draft Joint opinion on the Law of Ukraine “On Elections of the President of Ukraine” and “The Law on amending some legislative acts on the election of the President of Ukraine” provided by the OSCE/ODIHR and the Council of Europe’s European Commission for Democracy through Law (“Venice Commission”) following a request from Ukraine’ Ministry of Foreign Affairs.
As reported here, on 24 July 2009 the Verkhovna Rada adopted amendments to some legal acts regulating the Presidential elections. The amendments introduce a number of important changes to the
Criminal Code of Ukraine, the Code of Administrative Legal Proceedings of Ukraine and the Law “On Elections of the President of Ukraine”. The President vetoed these amendments however his veto was overturned by parliament on 22 August.
Both the President and 48 National Deputies [MP] appealed against the law to the Constitutional Court. The latter is due to consider the law in October.
The following is summarized from the Draft Opinion. Since there are issues which urgently need addressing, parts of the report, most especially comments on positive improvements have been omitted.
“7. Although the amendments to the Election Law incorporate a number of important recommendations, concerns previously expressed by the OSCE/ODIHR and the Venice Commission remain unaddressed, including candidacy requirements and non-party domestic observers. Furthermore, they raise a number of serious concerns that mark a step backwards in some aspects of the election legislation. In particular, amendments to the law which have negatively impacted its overall effectiveness and which in particular limited the right to appeal election results include:
- Restrictive amendments that undermine the possibility to challenge election results;
- Restrictive amendments regarding electoral dispute resolution that undermine the right of citizens, parties, and other stakeholders to seek effective redress for violations and allow disputes to remain un-adjudicated;
- Provisions governing the determination of final election results by the Central Election Commission which require amendment and clarification;
- Provisions regulating the composition and the work of election commissions that may inject instability in the election administration;
- Excessive requirements for a monetary deposit in order to be a candidate;
- Changes to the voting procedures of electoral commissions that could lead to abuses;
- the possibility of making changes in the voter list up to one hour before the close of the poll.
8. The law contains some positive measures aimed at promoting transparency and accountability and deterring fraud. Notably, the law includes provisions requiring all election commissions to distribute minutes of meetings to official observers and candidates’ representatives. In addition, the law addresses previous concerns over the use of absentee voting certificates, which were subject to fraudulent use in past elections, by removing absentee voting certificates from the law. Problematic provisions requiring the collection of supporting signatures for candidacy have also been removed. Positively, the law also attempts to address previous concerns about an overly restrictive campaign spending limit. However, the total removal of such a limit may have negative consequences”.
The opinion notes with regret that the law has been passed so late, with less than 6 months before the Presidential elections scheduled for 17 January 2010.
Nomination and Candidate Registration
The law contains restrictions on candidacy which unduly restrict the opportunity for all citizens to be elected on an equal basis to the office of President. Such limitations on candidacy, as considered below, should ideally be amended to ensure the possibility to exercise this fundamental right.
Articles 9.4 and 56.5 include a restriction on candidacy based upon criminal conviction for any “intentional crime.” Such a restriction is overly broad as it limits suffrage on the basis of any conviction, regardless of the nature or severity of the crime. It is recommended that the law be amended to restrict candidacy only where a person has been convicted of committing a crime of such a serious nature that forfeiture of political rights is indeed proportionate to the crime committed.
Article 44.2 of the Election Law requires that political parties be registered for at least one year prior to Election Day in order to be viable electoral participants and to nominate candidates. This restriction imposes substantial limits on the political activities of parties as it precludes new political parties from participating in the elections.
It is recommended that this article be amended to lower the requirement for political party formation prior to Election Day.
Articles 45 and 51 set out requirements on the procedures to be followed by political parties (and election blocs) when they nominate candidates. These provisions should not interfere excessively with the internal organisation of political parties and be limited to what is necessary to ensure internal democracy. For example, Article 52.1.1 allows the CEC to deny the registration of a candidate on the basis of “a violation of the procedure established by law for forming the election bloc or nominating the candidate to the post of President of Ukraine.” The OSCE/ODIHR and the Venice Commission recommend the revision of these provisions which represent an overly broad restriction on political parties as private associations..
Article 49 has been amended to
(1) raise the amount of the electoral deposit required to be a candidate for President and
(2) raise the threshold of votes required in order for the electoral deposit to be returned to a candidate. Both amendments are of concern.
Article 49(1) requires a financial deposit from the party (election bloc) or independent candidate in the amount of 2,500,000 UAH. This is a steep increase and an unnecessary restriction on candidacy, particularly for candidates from small parties or those who choose to contest the elections as independent candidates. Such a requirement is particularly unfounded given the high threshold for refund of this deposit. Article 49.2 appears to only provide restitution of this deposit for the parties (election blocs) and candidates that reach a run-off election.
Both the deposit and the threshold for refund in Article 49 seem excessive and could discourage legitimate candidates from seeking office.
The Venice Commission Code of Good Practice in Electoral Matters states on this issue that “the amount of the deposit and the number of votes needed for it to be reimbursed should not be excessive.”
The OSCE/ODIHR and the Venice Commission urge the amendment of Article 49 to significantly decrease the amount of the monetary deposit required for candidacy and the prerequisite for refund for this deposit.
19. The provisions of the law for correction of defects in candidate registration documents appear contradictory. Articles 52.3 and 52.4 imply that registration documents can be corrected and resubmitted. However, Article 51.4 states that “Documents, submitted to the Central Election Commission…may not be resubmitted.” Candidates should not be denied registration based on a procedural or technical defect in registration documents where the defect can be corrected in a timely manner. #
In fact, the Election Law provides clear language ensuring that nominees for election commission membership not be denied on the basis of “technical clerical errors and inaccuracies” and provides for the correction and resubmission in cases where such inaccuracies are found (Article 23.4). Such language should be extended to include nomination documents for presidential candidates.
21. The commencement of the “election process” (Article 17.3) has been reduced from 120 days to 90 days before Election Day. This reduction of 30 days has required that all timeframes in the election law be similarly adjusted and reduces the time for election preparation by 25%. Although it is certainly feasible to prepare and conduct credible democratic elections within this time period, observation reports of past elections in Ukraine have noted delays in the appointment and functioning of election commissions.
The reduced election calendar has also resulted in shorter deadlines for filing and adjudicating complaints. The deadlines for the filing and adjudication of complaints are extremely restrictive (often within 24 hours of an alleged violation occurring, or only two days after a complaint having been filed). These short deadlines may negatively impact the effectiveness of dispute resolution proceedings.
23. The right to nominate members to election commissions is restricted by residency requirements imposed as a condition to membership. Articles 23.6 and 24.9 impose a requirement that a member of a DEC or PEC be a voter “residing within the territorial election district or the locality, on the territory of which the district is situated”.
This requirement may limit the ability of some candidates to nominate commission members in localities where the candidate has little support. However, regardless of the level of support a candidate has in the locality, the candidate has the right to be represented in an election commission, as well as a legitimate interest in the accurate counting and tabulation of voting results. Further, when this requirement is considered with the lowered voting requirements for expulsion of an election commission member (discussed below) the possibility is created for excluding a candidate from having any nominees in election commissions in some localities. This undermines the right of a candidate to make nominations for election commission members and may diminish public confidence in the accuracy of the results.
The OSCE/ODIHR and the Venice Commission recommend that the residency requirements of Articles 23.6 and 24.9 be accordingly removed from the law.
24. Overall, the articles regulating election administration lack sufficient requirements for the exercise of independence and impartiality on the part of election commissions.
25. Under Article 30.2 the powers of an election commission may be terminated if either a higher election commission or court decides the commission has violated the law. Termination of an election commission is not an appropriate response to such a finding and may open the door to abuses. Like any other institution, an election commission may make mistakes. The election commission should only be terminated in cases where the violations are serious, deliberate and/or repeated. This will require a careful assessment by the superior electoral commission or court.
The OSCE/ODIHR and the Venice Commission strongly recommend that Article 30.2 be accordingly amended.
31. Article 30.2 appears to grant a nominator of an election commission member the unlimited right to remove the member at any time even if the member has been performing his or her duties in a professional and legal manner. Such a provision can subject election commission members to political pressure and threats of removal should the commission member vote on issues contrary to “instructions” given by the nominator. Persons who hold positions in the election administration must be completely free from political influence or pressure.
The Venice Commission and the OSCE/ODIHR strongly recommend that the law be revised to provide that a member of an election commission can only be dismissed for failure to fulfil the member’s legal duties imposed by the election legislation.
C. Observers and Transparency
34. Articles 66 through 70 provide that representatives of political parties, candidates, and international observers and organisations have full access to the process of the organisation of presidential election and the processing of the election results.
However, the law specifies that the rights of observers will be terminated after “the Central Election Commission has determined results” (Article 68.2). This provision is overly restrictive and should be reconsidered. Observers should be able to freely conduct activities through the resolution of all electoral disputes.
Article 28.11 allows the election commission to deprive such persons from attending commission session if they “unlawfully obstruct its conduct.” While this exclusion can be considered necessary in the light of administrative burdens associated with the electoral process, the law should provide clear guidance on what constitutes “unlawful obstruction” so as to promote transparency and prevent abuse of this provision.
37. The Election Law does not provide for domestic non-partisan observers. The OSCE/ODIHR and the Venice Commission urge that the law be amended to provide broad rights of observation for domestic non-partisan observer groups. It should be noted that such an amendment has already been proposed for the draft law governing parliamentary elections.
38. All official observers are expressly given the right to take photographs and make film and audio recordings (Articles 69 and 70). This is an unusual and seemingly unnecessary provision. Filming voters as they go to the polling booth and ballot box could have an intimidating effect and may diminish the secrecy of the vote.
E. Media Regulations
44. Article 11.2.6 of the law requires equal access for candidates to “mass media”. Further, Article 13.4 requires the “mass media” to cover the election process in an objective manner, and Article 60.1 requires equal conditions for candidates during the campaign “in the mass media of all forms of ownership”. These provisions are very broad and some qualification is required in relation to privately owned mass media. Generally, there is recognition that different rules apply for public and private media. Greater obligations can be placed on “state-owned” media, such as the requirement to provide free time to candidates. “Private” media generally cannot be compelled to present a political message or provide political coverage. Although private media can be required to provide equitable access and conditions to paid political advertising, the provisions of the Election Law go well beyond this basic principle.
The OSCE/ODIHR and the Venice Commission recommend that these provisions be amended to limit the obligation to provide election coverage and equal access to State mass media and the regulation of private media be limited to the area of paid political advertising and reasonable provisions related to the publication of opinion polls.
45. Article 62 severely restricts the number of candidate debates permitted on television by limiting each candidate to one debate in a three hour period. Article 62 is contrary to international standards and OSCE commitments regarding freedom of opinion and expression.21 This Article creates an overly burdensome limit on freedom of expression by prohibiting all media, including private media, from allowing candidates to engage in debates in media beyond a single occasion during one three hour period. This suppression of the exchange of political views during an election is unwarranted.
The OSCE/ODIHR and the Venice Commission recommend that Article 62 be reformulated so that candidate debates are not so severely restricted.
46. Article 64.12 bans campaigning in “the foreign mass media, which operate on the territory of Ukraine.” This restriction implies that candidates would be barred from issuing campaign statements or advertisements aimed at Ukrainian voters residing abroad.
It is recommended that this provision be reconsidered.
47. The 15-day pre-election ban on publishing opinion polls is unusually long (Article 64.13).
The OSCE/ODIHR and the Venice Commission recommend that this silence period for opinion polls be significantly shortened to be brought in line with internationally accepted principles for the length of such silence periods.
F. Campaign Finance Provisions
49. The Election Law has been amended to remove a spending limit for campaign expenditure. While the OSCE/ODIHR has previously recommended an increase in the spending limit for elections,26 the total removal of spending limits may be counterproductive. The removal of the spending limit, coupled with the 2.5 million UAH (approximately 206,000 EUR) electoral deposit (reimbursable only to the winner or the two run-off candidates), may limit presidential candidacy to a handful of wealthy elite.
The OSCE/ODIHR and the Venice Commission recommend consideration of reinstating a spending limit which can help ensure a level playing field while being sufficiently high to allow for the free conduct of campaigning.
50. Article 43.1 regulates the creation of campaign funds for candidates in presidential election. This article permits campaign funds for candidates to come from three separate sources. One of these sources – political party contributions – is limited to a candidate nominated by a political party. Paragraph 7.5 of the OSCE 1990 Copenhagen Document provides that citizens have the right “to seek political or public office, individually or as representatives of political parties or organizations, without discrimination”. The OSCE/ODIHR and the Venice Commission recommend that the limiting phrase “of the party (parties that are members of the election bloc) that nominated the candidate” in Article 43.1 be reformulated so that an independent candidate can receive financial support from political parties.
53. In Article 50.1 candidates seeking registration are required to submit a property and income statement not only for themselves but also for their family members. However, the law does not define which persons are “family” members. This is a term that should be clearly defined in the law as there are legal consequences for violation of the law.
54. The law limits the right to engage in the pre-election campaign to citizens of Ukraine who have the right to vote (Article 2.3). This limitation is contrary to international and regional legal commitments which obligate the state to ensure that all persons within their territorial jurisdiction have the right to freedom of expression, association, and speech, which encompasses the right to promote and support candidates and political parties, regardless of whether the person possesses the right to vote.
Further, since a person must be 18 years of age to vote, the limitation required by this article is contrary to the United Nations Convention on the Rights of the Child.
The OSCE/ODIHR and the Venice Commission recommend that this limitation be removed from clause 3 of Article 2. Articles 58.2, and 64.1.1 should also be amended so that foreign citizens and stateless persons residing in Ukraine have the right to freely express their opinion and to associate during the election campaign although they are non-citizens.
H. Voting Procedures
56. The Law establishes in its article 2 par. 6 specific rules for voting of citizens of Ukraine residing abroad, specifying that only persons registered in Ukrainian consulates can vote. Considering the important number of Ukrainian nationals residing abroad the corresponding provisions of the law could be further elaborated and establish specific procedures that could facilitate the registration of voters who reside in localities other than the capital (i.e. with no Ukrainian consulate).
61. Importantly, the law takes steps to ensure that all citizens, including persons with disabilities, may effectively participate in public affairs through the exercise of their suffrage rights. The system of mobile voting, which has been carefully constructed with necessary security provisions, is commendable for its role in ensuring this right and upholding Ukraine’s commitment to the UN Convention on the Rights of Persons with Disabilities. However, Article 77.6 requires that PEC members who conduct mobile voting should take only “election ballots in the quantity equal to the number of voters”. Ideally, this number should include all voters registered on the relevant “voter register extract” in addition to a small specified number of spare ballots to allow for the eventuality of a user of the mobile ballot box spoiling his/her ballot.
62. Article 77.1 allows a voter to wait until the eve of elections (12 hours before voting begins) to request a mobile ballot. This places an undue burden on election commissions, which should have more time to plan for mobile voting. This is particularly important given concerns over the potential for fraud in the process of mobile voting which necessitates deterrent measures including careful administration of the process.
The OSCE/ODIHR and the Venice Commission recommend that the deadline for requesting a mobile ballot be adjusted to provide more time for election commissions to plan for secure mobile voting.
I. Counting Procedures and the Determination of Results
64. A further difficulty with Article 80.1 is the provision which allows for invalidation of the polling station results if the number of ballots found in the ballot boxes exceeds the number of voters by ten percent. Such an arbitrary standard of impermissible abuse serves no useful purpose. In effect, it establishes a legal tolerance level for fraud of up to 9.99%, which cannot be compatible with the proper conduct of elections. Invalidation of election results should be possible only where it is shown that electoral violations raise valid questionability as to the reliability of the results.
It is also questionable whether the 10% standard is consistent with the Ukraine Supreme Court’s 2005 decision invalidating the results of the second round of voting in the presidential election. In the disputed 2005 presidential election, the results of which were appealed to the Supreme Court of Ukraine, one of the arguments presented against invalidation of the results of the second round of voting was that the 10% standard had been not satisfied for specific polling stations. The Supreme Court rejected this
argument and ruled that a remedy for violation of suffrage rights was required by Articles 8, 71, 103 and 104 of the Constitution of Ukraine and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, regardless of whether the 10% standard was satisfied. Thus, retention of the 10% standard in the law appears to be inconsistent with the 2005 decision of the Supreme Court.
The OSCE/ODIHR and the Venice Commission recommend that repeal or careful amendment to this provision occur at the earliest opportunity.
66. The procedure for counting ballots in mobile ballot boxes is of concern (Article 78.21). The procedure requires that all ballots in a mobile ballot box be invalidated if the number of ballots in the mobile ballot box exceeds the number stated on the control sheet. This provision treats voters unequally and discriminates against mobile voters because this invalidation requirement does not appear in the law in reference to regular ballot boxes. Better practice is to apply the same rule for addressing discrepancies in the number of ballots to all types of ballots.
69. The new article 83.8 provides that the district commission has to establish the voting results no later than on the fifth day after the election regardless of whether results from all polling stations have reached the DEC. This provision would make it possible to establish an election result without taking into consideration the votes of a considerable part of the electorate.
J. Election Disputes
73. There have been significant amendments to the Election Law and the Code of Administrative Legal Proceedings, which present serious concerns regarding election dispute resolution. These amendments have injected uncertainty concerning the right and ability for election results to be challenged and are discussed below in detail.
74. According to the new amendments to the Code of Administrative Legal Proceedings there is no opportunity to challenge the determination of the election results by a precinct or a district election commission (see the amended Article 109). Taken in conjunction, these amendments seem to imply that election results can only be challenged after the final tabulation by the CEC. This raises a further concern as an amendment to Article 84.7 of the Election Law appears to limit the CEC’s ability to consider any fraud occurring at lower level commissions on or after Election Day. The mentioned amendment to Article 84.7 states:
“Complaints related to the organisation and conduct of elections of the President of Ukraine, decisions, action or inaction of election commissions and members thereof, state authorities, local self-government bodies, enterprises, institutions, establishments and organisations, their officers and officials, documents and actions of associations of citizens except for those that pursuant to the law or the statute (provisions) of such association of citizens belong to its internal organizational activities or its exclusive competence, action or inaction of the mass media, their officers and officials, as well as other subjects of the election process on the election day and the following days of the election process are not submitted to the Central Election Commission. When such complaints are submitted, the Central Election Commission leaves them without consideration. Submission of such complaints does not impede establishment of the results of election of the President of Ukraine and their announcement”.
75. This provision indicates that the CEC cannot take into consideration any complaint that presents allegations of fraud, even fraud that brings the legitimacy of the election results into question, when the complaint is submitted on Election Day or the days thereafter. In other words, the CEC is legally obligated to determine the results in disregard of credible allegations suggesting that the results are not legitimate. In such a situation, the CEC is no longer an important state institution ensuring the legitimacy of election results, but rather is a mere mechanical functionary adding numbers on paper. This is of concern because it is a reversal of the very legal principle that required the judicial remedy for the fraudulent conduct in the 2004 presidential election. In 2004, the Supreme Court of Ukraine noted, among other things, that 65 complaints were pending with the CEC at the time the CEC decided the official election results. The Supreme Court noted that it was impossible to establish the will of the voters (election results), in part, due to the pending and unresolved 65 complaints filed with the CEC.
76. As discussed in paragraph 74 of this document, an amendment to Article 84.3 of the Election Law removes the requirement for the CEC to take a “decision” declaring the elected President and the requirement of a CEC “protocol” on the results. The amendment only requires that the CEC “draws minutes” on the election of the President. Arguably, this hinders the right to challenge the election results because there is no formal decision to appeal. This argument is supported by the experience of 2004 presidential election, when the CEC itself decided to “leave without consideration” complaints challenging DEC protocols because they were not “decisions” or “acts”, but simply “mathematical calculations”.
77. An amendment to Article 176.6 of the Code of Administrative Legal Proceedings states:
“Decisions, action or inaction of election commissions, including decisions of the Central Election Commission on establishing the election results, may be appealed pursuant to the procedure provided for in Article 172 of this Code.” However, based on the amendment to Article 84.3 of the Election Law, it is not clear that the CEC determination of the election results is an event that can be appealed under the Code of Administrative Legal Proceedings, as it may not be considered a formal “decision” or “act.”
78. In consequence, it is not clear to what extent the final election results are subject to a legal challenge. It would appear that the DEC results cannot be challenged as to their substantive content and that the substantive content of the DEC results must be accepted by the CEC. This may imply that CEC tabulation can only be challenged when it contains a mathematical error in the summarisation of the DEC results, not on the basis of concerns of legitimacy of the tabulated results themselves. These are matters that require careful clarification. It is necessary that the law ensures an effective system for the redress for alleged violations of suffrage rights and guarantees that the election results properly reflect the will of the Ukrainian people.
The OSCE/ODIHR and the Venice Commission urge the Ukrainian authorities to revise the law in order to provide an effective system of appeals, in conformity with international standards.
79. The provisions on deadlines within which complaints must be submitted (Article 94) may benefit from reconsideration. Complaints concerning alleged violations occurring in the pre-election period must be filed within five days of their occurrence. Complaints concerning alleged violations occurring before polling day must be lodged by the end of the day before the election (Article 94.3), while complaints concerning alleged violations occurring on the election day must be submitted to an election commission by the end of polling, and to a higher election commission or court at the end of the day following the election (Article 94.4).
Clearly this is inadequate as lodging an appeal takes time. In many cases it may be practically impossible to lodge an appeal within these time periods, particularly if the violation is not discovered or communicated immediately. The deadlines presently envisaged create an obvious risk of injustice. While there is value in avoiding protracted challenges and litigation pending the determination of the election results, time constraints should not, however, be so restrictive as to undermine the prospect of achieving a just solution to a legitimate complaint.
The OSCE/ODIHR and the Venice Commission recommend these deadlines be carefully revised.
80. Although there is some form of a right to appeal a “decision” of the CEC to the Higher Administrative Court of Ukraine, there is no guarantee of an adjudication of the appeal on its merits. The new Articles 99.4, 99.5 and 99.6 of the Election Law state:
4. Powers and authorities of the court as provided for in Article 117 of the Code of Administrative Legal Proceedings of Ukraine may not be applied by courts to the disputes related to designation, preparation and conduct of elections.
5. The court is to consider and resolve the administrative cases provided for in this Law within two days after the end of voting at polling stations.
6. The claims that were not considered by the court within the period provided for in paragraph 5 of this Article are left without consideration.
81. These provisions are of concern as they (1) might be applied to limit the scope of relief available in court; (2) establish a very short deadline; and (3) allow a court to ignore a complaint after two days and leave the complaint “without consideration”. This is problematic. While timely resolution of electoral disputes is fundamentally important, the proposed timeline is overly restrictive and will likely unduly limit the ability for all electoral stakeholders to have their claims addressed as appropriate. The need to provide an effective remedy for all violations of suffrage rights and to guarantee a fair and public hearing before an impartial court should outweigh such a stringent guideline on the timing of dispute resolution. The OSCE/ODIHR and the Venice Commission strongly recommend that these provisions be removed or revised.
IV. Changes to the Code of administrative procedure of Ukraine.
82. As mentioned, it appears that there is no opportunity to challenge the determination of the election results by a precinct or a district election commission. Article 109 of the Code of Administrative Legal Proceedings previously listed three exemptions to a court’s exercise of jurisdiction. An amendment to Article 109 has now added the following fourth exemption: “4) an application concerning the minutes of the territorial (district) election commission on establishing the election results in the election district during the elections of the President of Ukraine, people’s deputies of Ukraine, as well as the minutes on the results of vote-tallying at a polling station, has been submitted.” This suggests that lower election commission results cannot be challenged by a complaint. In addition the amendment to Article 172.4 of the Code of Administrative Legal Proceedings, states: “The minutes of a territorial (district) commission on establishing the election results in a respective election district during the elections of the President of Ukraine, people’s deputies of Ukraine, as well as the minutes on the results of vote-tallying at a polling station may not be contested in a court.” Further, an amendment to Article 18.4 of the Code of
Administrative Legal Proceedings, states: “The Higher Administrative Court of Ukraine is to act as the first instance court with regard to the cases concerning establishment of the election results or the results of the all-Ukrainian referendum by the Central Election Commission.”
83. New amendments to Article 177 of the Code of Administrative Legal Proceedings seem to exclude any possibilities of review of decisions of the administrative courts by the Supreme Court of Ukraine. This addition might be problematic since it reduces the possibilities to review the decisions of administrative courts and electoral administration.
84. When one attempts to construe all the existing legal provisions and amendments to the Code of Administrative Legal Proceedings and the Election Law together, they appear contradictory and raise concern that the provisions will be applied restrictively to limit remedies. It is of concern that many legitimate complaints will be “left without consideration”.
The Supreme Court of Ukraine noted in its 2004 decision, reversing the CEC determination of election results, that a state has the obligation under international human rights instruments to provide an effective remedy for violations of suffrage rights. It does not appear, based on the current legal provisions for challenging election results, that there is a mechanism for providing an effective remedy to challenge the presidential election results. It is important that the CEC does not determine the final results of the election until it has received the rulings on any complaints filed with the electoral commissions and the courts which may have a bearing on the outcome of the election. This provision should be clearly articulated in future iterations of the law.
The OSCE/ODIHR and the Venice Commission strongly recommend that these provisions be revised in order to ensure an effective system of appeal.
V. Changes to the Criminal Code of Ukraine
85. Article 1581 of the Criminal Code, which has been amended, imposes criminal liability for “repeat voting at a polling station by a voter”. This text can be interpreted to impose liability only when the voter votes more than once in the same polling station.
The OSCE/ODIHR and the Venice Commission recommend that this article be amended to clearly state that multiple voting, whether in the same polling station or several different polling stations, results in criminal liability for the offender.
86. This joint opinion of the Venice Commission and the OSCE/ODIHR on the Law on Elections of the President and the Law on Amending Some Legislative Acts on Election of the President of Ukraine is provided with the intention of assisting the authorities in their stated objective to improve the legal framework for democratic elections, and to bring the law more closely in line with OSCE commitments, Council of Europe and other international standards for the conduct of democratic elections.
87. However, the recent amendments raise significant concerns and some important aspects regulating the presidential elections can be considered as a step backwards compared to previous legislation. Some of these amendments are not in line with international standards and good practices, and should be revised taking into consideration the recommendations stated in this review. Some problematic areas of the legislation previously underscored by the OSCE/ODIHR and the Venice Commission remain unaddressed.
The full draft Opinion is available at http://www.venice.coe.int/site/dynamics/N_Opinion_ef.asp?L=E&OID=546