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08.01.2019 | Halya Coynash

‘Banned’ Ukrainian Communist Party puts forward candidate for Presidential Elections

Petro Symonenko Photo Politeka
   

The ‘Communist Party of Ukraine’ has announced that it is putting forward its leader Petro Symonenko as presidential candidate in the coming elections.  The announcement has aroused bemusement, since it comes over three years after the much publicized ruling from the Kyiv District Administrative Court banning this very same party.  

In fact, CPU is not yet illegal, as the ruling on 16 December 2015 was appealed, and the courts are clearly in no hurry to consider that appeal.  The situation is confusing, which may be why even Oleksiy Koshel, Director of the Committee of Voters of Ukraine [CVU], one of Ukraine’s main electoral watchdogs, appeared to give somewhat conflicting opinions as to whether the Communist Party can put forward an official candidate.  In an earlier interview to Hromadske Radio, soon after the news of the CPU announcement on 3 January,  Koshel suggested that there was nothing to stop them, as the ban on the party, having been appealed, has not come into force.  On 4 January, however he stated that Symonenko could only stand for election by putting himself forward.  In that interview to Ukrinform, he called the statement from CPU empty political posturing, although he added that the Communist Party could publicly express their support for his candidacy and run a major campaign for his election, using its party emblems, etc.   He asserted that there was nothing to stop this as, for the moment, the party remains one of 153 officially registered political parties in Ukraine. 

In the same interview, Koshel suggested that Symonenko might want to use his participation in the presidential elections to try to claim that criminal proceedings launched against him are politically motivated.  Koshel noted also that the official financial reporting from CPU does not correlate with the actual spending seen earlier, and now, from the Communist Party. 

Speaking on Hromadske Radio, Koshel mentioned also that there is a submission with the Constitutional Court regarding the constitutionality of the court ruling banning the party. 

It is not at all clear when the legal wrangling will end with a full ban of the Communist Party.  He did not appear to consider the possibility that it might end up not being banned. 

“We live with the reality of the decommunization reform having proven unsuccessful.  It was carried out in a very short amount of time and for many it is even hard to believe that at this time the Communist Party is officially continuing to function and is officially registered, having all the same rights as other political parties”.

Ukrainian legislation

The Law “On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting Propaganda of their Symbols”, in force since May 2015, added a new sub-clause to Article 52 of the Law on Presidential Elections, which covers refusals by the Central Election Commission to register a candidate.  Such a refusal, according to this new addition, shall apply where a candidate is put forward by a party “which carries out propaganda of the communist and / or National-Socialist (Nazi) regimes and their symbols”.  This goes on, however, to stipulate that a decision has been taken, according to procedure established by the Cabinet of Ministers that the activities, name and / or symbolism of the party does not comply with the requirements of the Law “On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting Propaganda of their Symbols”.  Presumably such a decision is on the basis of a court ruling, and here is the sticking point, since the appeal has been sitting, gathering dust, for a long time now.

Even if the party remains legal, it is surely not clear that its symbols are since these also fall under the same law.  There have already been criminal proceedings initiated against veterans for unfurling a communist flag, and in May 2017, a Lviv student received a suspended sentence for photos and other material with communist symbols posted on Facebook.

The ban

The ban on the Communist Party by the Kyiv District Administrative Court on 16 December 2015 was at the application of the Justice Ministry  The Ministry’s application asserted that “the Communist Party of Ukraine [CPU] carries out actions aimed at changing the constitutional order through violent means; violating the sovereignty and territorial integrity of Ukraine; propaganda of war, violence and incitement to inter-ethnic enmity and encroachment of human rights and freedoms, and members of CPU systematically make calls to create armed formations”.

This may well be true, however information needed to be provided, and was not, as to the evidence provided to back these assertions.

On the same day, the Justice Ministry reported that the Administrative Court of Appeal in Kyiv had upheld the earlier rejection by the same District Administrative Court of a Communist Party suit against the Ministry. 

The Communist Party had demanded that the Justice Ministry revoke its July 24 2015 Order which stripped the Communist Party and two other linked parties of their registration, and therefore their right to take part in the coming local elections. As reported at the time, three Ukrainian political parties had thus effectively been banned from participating in elections without any court ruling. 

The July 24 Order cited the above-mentioned Law on condemning communist and Nazi regimes, and prohibiting their propaganda as its justification for depriving the parties of their electoral rights. 

The law in question does indeed ban the activities of any party that uses communist (or Nazi) symbols in their name or has propaganda of communist (or Nazi) totalitarian regimes and their symbols in their founding documents.

The problem is twofold.  Firstly, no ban on the actual party has yet to come into force.  The second is that the law in question has been heavily criticized by the Council of Europe’s Venice Commission, and any such ban is more than likely to be found by the European Court of Human Rights to violate the rights of party members.

The Venice Commission issued its joint interim opinion (https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2015)041-e ) on 23 December 2015. 

While the constitutional experts stressed that the Law had a legitimate aim, and that Ukraine has the right “to ban or even criminalise the use of certain symbols of and propaganda for totalitarian regimes”, they found the Law’s scope much too broad and the sanctions, including long terms of imprisonment, too severe. 

The experts warned that any prohibition of groups or parties jeopardizes freedom of association and stressed that political parties should only be banned from taking part in elections, or dissolved, as “a measure of last resort in exceptional cases”.

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