SUMMARY
- Effective system of electoral disputes review is quite important for any electoral system. Ukraine is not an exception, as during the last early parliamentary elections in some single-seat constituencies even election results were changed due to appeal procedure, for example in singleseat constituency № 16.
- 84% of complaints submitted to the Central election commission (hereinafter - CEC) were returned to complainants because of shortcomings in complaints. In district election commissions (hereinafter - DECs) this share is 22% (it could be higher but some DECs did not register complaints if they had shortcomings), and in courts - 14%. The lower number of returned claims in courts can be explained with the practice that written statement of claim could be submitted by filling the claim form provided by the court. In addition, administrative court officers help plaintiffs to process the claim at their request. Election commissions provide no assistance to applicants in writing complaints.
- In order to solve the problem with high number of complaints returned due to shortcomings, it is necessary to amend the legislation and remove formal reasons which are the most often obstacles for submission of complaints. Besides, the Central election commission should also publish example or form of election complaint to reduce number of incorrectly prepared election complaints.
- The high number of complaints returned by election commissions (especially CEC) due to shortcomings was caused by formal approach when considering complaints. For example, when considering appeals against candidate the CEC often returns them to complainants due to no indication of subject's (candidate's) of complaint residence. In this case information is quite hard to find as it is confidential. The CEC has such information as candidates submit information on residence while their registration in CEC, but still the CEC returns such complaints to complainants.
- Among those complaints, which were considered at meetings of election commissions - 23% were left without consideration on the merits by the CEC as complaint was submitted to improper body. In DECs the share of such complaints reached 43%. In Ukraine, despite rather a complex electoral disputes resolution system (concurrent jurisdiction of election commissions and courts, which are divided into different institutions, is present), complainant doesn't have any serious problems to consider where to submit a complaint or administrative claim. The main reason that such a high share of complaints is submitted to improper body is 2 jurisdictional errors in the legislation:
* Complaints on DEC decisions and actions of DEC members should be allowed to submit to the CEC (at the moment DEC decisions and DEC members actions can be challenged only in court);
* Complaints on actions or omissions of candidates should be allowed to submit to DEC (at the moment they are submitted to the CEC).
It was the large number of complaints on candidates submitted to DECs and the large number of complaints on DECs and its members which were submitted to the CEC that caused such a high share of complaints dismissed by commissions on the grounds that they were submitted to improper body.
In the courts, where there are no such errors, the share of complaints submitted to improper body is only 6%.
- Decisions of the Central election commission and district administrative courts were mostly in line with requirements of electoral legislation, as well as with the legal provisions for procedure of electoral disputes resolution. However, in some cases the decisions of district administrative courts were of low qualification. After each election process district administrative courts should analyse the election disputes they resolved and mistakes made.
- District election commissions do not comply with the law requirements when dealing with election complaints. This leads to violation of the principles of transparency, competitiveness, and delegitimises the process of complaints review. The main reason is that district election commissions' members are not aware of the election law and usually disregard the law. This practice seriously undermines the credibility of the district election commissions in resolving election disputes as disputes cannot be solved by the body which is not aware of the law on elections or consciously violates it.
- To solve the problem of district election commissions' work with complaints, it's necessary to change the approach to DECs’ formation. In particular, it is necessary to apply to DECs the recommendation of the Code of Good Practice in Electoral Matters for the Central Election Commission and to include at least one judge to their composition. This practice is successfully used in other countries, for example in Romania. The other way is more effective training of DEC members, focusing more precisely on process of complaints review. It is also necessary to stop the practice of replacing election commissions’ members when commissions’ composition is changed too often. New DEC members do not have time to be trained, so their knowledge of electoral law, especially on consideration of electoral complaints, is rather poor.
- Transparency in electoral disputes resolution is provided by the law, but in practice this principle is seldom observed. Only 5 of 125 DEC resolutions on complaint review were published on the CEC website. A significant number of court decisions are not published, or published very late in Unified State Register of court decisions. At the same time the procedure of checking complaints for compliance with the formal requirements by election commissions’ members is not transparent.
- CVU hopes that the findings of this report will be considered by the Verkhovna Rada of Ukraine while performing election reform, amending existing legislation or adopting new legislation, as well as by the Central Election Commission in its future activities.
1. Complaints resolution by the Central election commission
The CEC received 454 complaints during the election process (from September 1 to November 7). 384 complaints of the complaints were returned to complainants due to improper execution in compliance with the law. Only 29 complaints of 384 were amended and re-submitted to the Central Election Commission. Thus, 355 complaints (78% of all complaints) were not considered by the Central Election Commission and the complainants lost the opportunity to protect their rights or interests on formal grounds. This is a very high share of complaints, so this situation requires changes.
Representatives of international organizations also mentioned this problem in Statement of Preliminary Findings and Conclusions, the result of a common endeavour involving the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR), the OSCE Parliamentary Assembly (OSCE PA), the Parliamentary Assembly of the Council of Europe (PACE), the European Parliament (EP) and the NATO Parliamentary Assembly (NATO PA). Due to a large share of refusals to review complaints on formal grounds the complainants are left without effective legal remedies. Such situation contradicts to OSCE commitments.
It should be mentioed that CVU managed to get information on returned complaints only by submitting a request for information on access to public information to the Central Election
Commission (see. Annex №1). Preliminary review of a complaint is made by individual election commission member, decision is made individually and never made public. Such practice does not promote transparency of complaints review. Official observers of NGO “Committee of voters of Ukraine” faced imilar problems of access to information while monitoring electoral disputes resolution by district election commissions where it was difficult to get information on the quantity of complaints returned due to formal shortcomings.
The Central Election Commission answered formally to the request on the most common reasons for return of submitted complaints to complainants, stating that “the reasons for return of complaints were failures of their execution according to the requirements of article 110 of the Law of Ukraine “On Election of People's Deputies of Ukraine” and Section 6 of the Procedure of complaints review by election commissions during parliamentary elections in Ukraine № 133 approved by the Central Election Commission on July 31, 2012. The CEC didn't specify which requirements were usually not met in complaints.
Analysis of open access CEC decisions on complaints as well as DEC and courts' decisions shows that the main reason to return complaints is non-compliance with paragraph 3, part 1, article 110 of the Law of Ukraine “On the Election of People's Deputies of Ukraine”, namely the lack of residence address, phone numbers, e-mail of a subject of complaint. Thus, at meeting the CEC decided to leave without consideration on the merits 3 complaints due to the fact that they were resubmitted with shortcomings. Complaints were left without consideration on grounds of the CEC resolutions № 1846 from 16.10.2014, № 1847 from 16.10.2014, № 1879 from 17.10. 2014 for reasons of missing residence address of the subject of complaint. Courts decisions to leave claims without movement were made on the same basis (for example, Kyiv district administrative court decisions № 40756182, 40921123).
Election commissions, election commission members and parliamentary candidates are most frequent subjects of complaints in election disputes. Information on postal address and phone numbers of an election commission can be found at web-site of the Central Election Commission.
As for election commission members, their postal address of residence is not indicated anywhere. Of course, the complaint may contain the postal address of member's election commission, but any election commission has the formal right to refuse to consider such complaints complaint as the law requires indicating postal address of residence. The most difficult situation is with parliamentary candidates. Such complaints are considered by the Central Election Commission. Perhaps this is the reason why the share of complaints which were returned to complainants with shortcomings was the highest in the CEC and reached almost 80% of complaints, while in DECs it was only 30% of complaints. Parliamentary candidates' address of residence as well as address of residence of any individual is confidential information, it is not surprising that complainants did not know relevant information and didn't indicate it in the complaints, so the CEC used this reason for formal rejection of complaint's consideration.
We should realize that such refusal is formal, as the Central Election Commission knows the address of residence of each MP candidate - this information is given in the candidate's autobiography, which is one of the documents submitted to the Central Election Commission during the registration.
This problem can be solved with changes in legislation. Complainants should be allowed to indicate in complaint any address to get in contact with a subject of complaint; it can be either residential address, work address or other relevant address. In addition, the CEC could publish on the website a list of postal addresses of each parliamentary candidate for complainants to indicate in complaints. Considering this problem broader, we should mention that the terms for electoral disputes are very short, so mail correspondence is not actually used to reach a party of an electoral dispute. Phone calls and e-mailing are used more often, so the requirement to indicate postal address in a complaint makes no sense. It is enough if a complaint includes at least one means of communication to contact a person.
With its response to the CVU information request the CEC revealed another serious problem of electoral legislation, which is noncompliance of article 110 of the Law of Ukraine “On Election of People's Deputies of Ukraine” and section 6 of the Procedure of complaints review by election commissions during parliamentary elections in Ukraine. Article 110 of the Law of Ukraine “On Election of People's Deputies of Ukraine” provides requirements for content and form of the complaint. Moreover, this list is exhaustive, it states that there are other requirements for content and form of complaints than those specified in article 110 of the Law of Ukraine “On Election of People's Deputies of Ukraine”. However, such additional requirements do exist.
In particular, according to point 6.3 of a “Procedure of complaints review by election commissions during parliamentary elections in Ukraine” a complaint must specify the status of a complaint in the electoral process. The Law of Ukraine “On Election of People's Deputies of Ukraine” does not specify such requirement for a complaint. A complainant submitting a complaint does not read the “Procedure of complaints review by election commissions during parliamentary elections in Ukraine”, as the Procedure of complaints review should regulate the work of election commissions during complaints review, as its name indicates, but not restrict the rights of a
complainant to submit a complaint.
Procedure also provides that if a complaint is submitted to election commission by the authorized person of a candidate, it shall contain the first name, last name, patronymic, address of residence or address of stay (postal address), the type and the number of communication means of the candidate, on behalf of whom a complaint is submitted. The Law of Ukraine “On Election of People's Deputies of Ukraine” as well doesn’t contain this requirement.
For this reason it is important to bring the “Procedure of complaints review by election commissions” into compliance with the Law of Ukraine “On Election of People's Deputies of Ukraine”. According to subparagraph a) of p. 2 of Section II of the Code of Good Practice in Electoral Matters norms of election legislation should be written in form of laws except norms on technical issues and specific aspects, which can be written in form of regulations of executive authorities. Only the law should provide an exhaustive list of requirements for complaints and documents attached to a complaint.
We should mention that the Parliament of Ukraine of VII convocation didn't conceive this problem. Thus the draft law № 5157 of 13.10.2014. “On amendments to some Laws of Ukraine to ensure proper organization of the election process on parliamentary elections in Ukraine” contained changes that would bring into compliance the Law with the Procedure of complaints review, but this draft law didn’t pass. We hope that during implementation of electoral reform these details will be considered and deficiencies will be corrected.
Considering a large number of returned complaints due to shortcomings the Central Election Commission should provide subjects of electoral process with sample or blank of election complaint similar to one which is available at CVU website (Annex № 2). On the website of the Central Election Commission in section “Information” there is a subsection “Samples and forms of election documents (to help political parties, candidates running in single-seat constituencies as self-nominated, NGOs)”, where appropriate sample or form of election complaint could be published. Publication of the form will reduce the number of incorrectly written complaints.
The jurisdiction of the Central Election Commission in disputes on decisions, actions or omission of district election commissions and their members is not clear enough. According to the Code of Good Practice in Electoral Matters in cases when higher level electoral commission reviews complaints on lower level commission, they should be authorized ex officio to correct or cancel decisions of lower level election commissions. The Central Electoral Commission has such powers. In particular, part 15 of article 34 of the Law of Ukraine “On Election of People's Deputies of Ukraine” states that the decision of election commission, which contradicts to the laws of Ukraine or was adopted with excess of commission’s authority may be cancelled by higher level election commission or declared unlawful and cancelled by the court. In this case, higher level election commission has a right to decide on the merits. So, the CEC is authorized to amend or cancel decisions of district election commissions. However, according to part 6 of article 108 of the Law of Ukraine, decisions of district election commissions cannot be appealed to the Central Election Commission but only to court. Only omission of district election commission can be appealed to the CEC. By the way, the Law of Ukraine “On Election of the President of Ukraine” provides that not only inaction, but also decisions and actions of district election commissions and their members can be appealed to the CEC. This discrepancy is unjustified. The Central Election Commission as a body which formed district election commissions should be empowered to hear complaints on decisions and actions of district election commissions and their members. This provision caused the situation that 7 complaints against decisions and actions of DECs and their members were left without consideration on the merits (CEC resolutions № 1849 of October 16,
2014, № 2086 of October 28, 2014, № 2100 of October 30, 2014 , № 2104 of October 31, 2014, № 2137 of November 8, 2014, № 2160 of November 14, 2014, № 2175 of November 19, 2014).
The most interesting is that paragraph 17, part 2, article 30 of the Law of Ukraine “On Election of People's Deputies of Ukraine” provides the following power of the CEC: the CEC considers applications and complaints on decisions, actions or omissions of district election commissions and make decisions on these issues. So the Law of Ukraine “On Election of People's Deputies of Ukraine” contains 2 provisions that contradict each other. It's necessary to improve relevant controversies and pass consideration of complaints on decisions, actions and omissions of DECs and their members to the CEC jurisdiction.
2. Complaints resolution by district election commissions.
CVU analyzed 123 complaints considered by the district election commissions. CVU analyzed activities of one DEC in each oblast. It should be mentioned that the number of complaints submitted to DECs was quite low compared to the CEC. On average each DEC received 5-6 complaints, while the CEC received 454 complaints.
A large share of complaints that were left without consideration on the merits due to improper body of complaints review deserves special attention. 43% of such those reviewed at the meetings of district election commissions belong to this group. Most of them, in fact two-thirds were complaints on decisions, actions or omission of parliamentary candidates. As parliamentary candidates are running in single-seat constituencies, it would be logical to submit complaints on their actions to district election commissions. So that is necessary to change the jurisdiction of electoral disputes and transfer it from the CEC to DECs. Such a change would reduce the load of the Central Election Commission and reduce confusion when submitting such complaints.
More than a half of 123 complaints reviewed by DECs, namely 65 - were submitted by official observers from the Committee of Voters of Ukraine. This was done in order to determine if district election commissions comply with all procedures provided by law when considering election complaints.
It should be mentioned that CVU lawyers faced problems as early as at the stage of complaint registration. District election commissions № 168, 169 in Kharkiv oblast refused to register complaints of CVU official observers. Similar situation emerged in Poltava oblast, where district election commission also refused to register a complaint, saying that it does not meet the requirements set by article 110 of the Law of Ukraine “On Election of People's Deputies of Ukraine”. Election commissions are obliged first to register all submitted complaints, and then make decisions based on review of these complaints. District election commissions, according to practical experience, break this rule and refuse to register a complaint, violating electoral process subjects’ rights to appeal decisions, actions or omission.
In complaints the CVU lawyers indicated All-Ukrainian non-governmental organization
“Committee of Voters of Ukraine” as an interested person. The complaints also contained most complete list of means of communication with CVU as an interested person - postal address, phone number (fax) and email (Annex №3). According to the Law of Ukraine “On Election of People's Deputies of Ukraine” election commission must:
- provide an interested person and a subject of complaint with a copy of the complaint in advance but no later than the beginning of review (part 10 of article 111);
- inform an interested person, a complainant and a subject of complaint on date, time and location of complaint review (part 9 of article 111);
- give or send a copy of the election commission’s decision to an interested person, a complainant, a subject of complaint (part 10 of article 113).
As a result of election complaints monitoring CVU as an interested person did not receive any copy of complaints from district election commissions (CVU as interested person didn't second representative to the DECs’ meetings), twice was informed on the time and place of complaint review (once on phone and via e-mail (Annex №4)) and received one fax copy of the decision of district election commission on the complaint. Considering that 65 complaints were submitted in total, we can conclude that the DECs which follow provisions of the law are rather exceptions to the rule.
The situation with complainants and subjects of complaint is somewhat better. 66% of complainants were informed on time and location of complaint review. 49% of subjects of complaint were informed (this percentage may be higher because it is unknown whether 5% of subjects of complaint were informed on the time and location of electoral complaints review or not).
However, in general it is incorrect to use the phrase “better situation” as 100% of complainants and 100% of subjects of complaints must be informed on time and location of election complaints review in order to be able to defend their position. This assures the adversarial principle when considering election complaints.
Not least because subjects of complaints were not timely informed on time and location of complaint review - only 22% of subjects of complaints were present during complaint reviews.
The statement that adversarial principle is not always ensured is proved also by the fact that in 45% of cases district election commission did not give the floor to complainants and subjects of complaint who were present during complaints review. District election commission simply read out the previously prepared draft decision which was voted by election commission members.
As for getting a copy of the decision, 57% of complainants received a copy of the decision on complaint, as well as 20% subjects of complaint. (The latter number can be higher, as information about 18% of cases was not available). We should mention that a share of 57% complainants was achieved only due to actions of official observers from CVU, who demanded a copy of DEC decision. In other situation the share of such persons would be smaller. Facts that complainants, subjects of complaint or interested persons didn't receive decision are often not accidental, that's not a bad work of post office or other objective circumstances, but simply unawareness of DEC members with provision that these persons should receive a copy of the resolution. For example , there is a DEC decision stating that a copy of resolution must be sent only to a complainant (Annex № 5).
As for decisions of district election commissions taken in result of review of complaints submitted by official CVU observers, we should mention that complaints were on procedural and somewhat formal violations, so district election commission made right decisions. For example, the lack of information board in PEC for informing general public on PEC resolutions and other materials. This is a clear violation so making right decision wasn't very difficult for DEC.
DECs had more serious problems with issuing decisions. Many DECs issued decisions to return complaints due to existing shortcomings in form of DEC resolutions (Annexes № 6, 7). The law provides that such decisions are made by head or deputy head of election commission, but not by district election commission and sent to a complainant with a list of shortcomings that should be corrected for a complaint to be reviewed. Adoption of a DEC resolution on this matter is not a gross violation of the law. However, these decisions do not include an exhaustive list of complaint shortcomings. In addition, such resolutions don't contain a message that complainant has the right to re-submit a complaint after elimination of shortcomings that prohibit complaint review as provided in part 2, article 111 of the Law of Ukraine “On Election of People's Deputies of Ukraine”. This situation limits the rights of complainants to submit complaints.
According to point 10.1 of “Procedure of complaints review by election commissions during parliamentary elections” an election commission makes a decision on complaint review in form of resolution. In practice it goes in different way. Some district election commissions make decisions on complaint review in form of protocol decision (Annex № 8) or in form of extract from the protocol. According to part 6, article 35 of the Law of Ukraine “On Election of People's Deputies of Ukraine” commission can make protocol decisions on matters of the current activities, the content of such a decision is recorded in a protocol of election commission and is not issued as a separate document. In fact, district election commission of single-seat constituency №12 twice violated the law:
1) when made decision on a complaint in the form of protocol decision; 2) when protocol decision was issued as a separate document.
The document issued by DEC of TED № 118 even hardly can be perceived as a decision (Annex № 9). There is no name and number of document, the date of its adoption is also missing. The document does not contain any reasoning or decision made on complaint review. This "decision" is even difficult to appeal as it does not contain data to be identified. In fact we can state that DEC of TED № 118 didn't make any decision on review of complaint of official CVU observer.
DEC № 133 in its resolutions № 25, 26, 42, 43, published on the official website of the CEC decides to “reject” submitted complaints, although such decision is not specified by the law and legal consequences of such decisions are not clear. DEC can dismiss a complaint as a result of its review, but it can’t reject.
As for DEC decisions on result of complaints review published on the official website of the CEC, only 5 DEC resolutions of 123 were published. Thus, we can conclude that district election commissions ignored the requirement of the law to transfer resolutions on complaints review to the CEC for their publication on the official website. This reduces the transparency of the complaints review procedure and violates an important principle of election process.
All mentioned above facts on complaint review process and DEC decisions allow us to conclude that district election commissions did not comply with the law when dealing with election complaints primarily because they are not aware of election legislation. This conclusion is unacceptable for a body that has the authority to consider complaints on violation of election legislation. It's highly improbable that mentioned above violations are caused due to overload of district election commissions with complaints, as 1 DEC received on average 5-6 complaints.
To solve the problems of district election commissions’ work with complaints the recommendation of the Code of Good Practice in Electoral Matters for the Central Election Commission should be applied to DECs too – at least one judge should be included to their composition. This practice is used successfully in other countries, such as Romania. In addition, it would contribute to unification of legal positions for election commissions and administrative courts.
Less radical way to solve the problem is to provide more effective training of DEC members with more attention to complaints review process. Besides, it is necessary to stop the practice of replacing election commissions’ members, when composition of commission is updated frequently and new members do not even have time to get acquainted with the election legislation.
3. Electoral disputes resolution by district administrative courts.
District administrative courts reviewed 54% of all complaints on the merits. This share is higher than the share of DECs with 33% or the CEC with only 5%. The hight share of complaints reviewed on the merits is partly caused by the fact that the Administrative Code of Ukraine stipulates that administrative court officials can help a plaintiff to fill a claim on his request. In addition, a written statement of a claim can be submitted by completing the claim form provided by court. This reduces the amount of claims submitted with shortcomings.
Another aspect is that plaintiffs are more serious on writing claims; they consult with lawyers as court fee is charged for submission.
Official CVU observers didn't track specifically the passage of claims in the courts, but in the course of election process they submitted several claims to district administrative courts. District administrative courts, unlike district election commissions, followed procedures for handling claims provided in the Administrative Code of Ukraine, informed CVU as a third person on time and place of the court session and sent copies of court decisions.
Decisions taken by the district administrative courts in general conform to the standards of electoral legislation. There were some mistakes when administrative district court violated the rules on jurisdiction and unreasonably opened proceedings in administrative case on rebut of misinformation, while the case was a subject of consideration not of administrative but civil proceedings (for example, decisions № 40795623, 40902235, 40841953). Much more serious mistakes were made in Kharkiv district administrative court decisions of № 40918384, 40902618, 40918045, which were made by the same panel of judges during two days. These three decisions supported position of a DEC of territorial election district (TED) № 206, which rejected nominations for the election commission members on the grounds that parliamentary candidate didn't submit the second pages of passports of the nominees, and therefore it was impossible to determine whether these passports were valid or not as it was impossible to check whether the photo was pasted on the second page of the passport. We should note that this decision contradicts the CEC decree № 56 of March 26, 2013 “On form of submissions on nominees for district and precinct election commission members on elections of People's Deputies of Ukraine”. This decree provides that in order to nominate persons for PEC members, one should provide copies of citizen of Ukraine passport pages with information about their last and first name, patronymic, date, month and year of birth. Such information is placed on the first page of the passport of the citizen of Ukraine, so it is enough to submit only the first page of the passport. Kharkiv District Administrative Court did not protect the right of candidate to have his members in precinct election commissions, violated by the district election commission.
It is necessary to mention that in single-seat constituencies № 16 and 79 in the result of submitted claims the district administrative courts decided to oblige DECs to recount votes at polling stations. The recounts that changed the election results in these districts. These cases show that claim procedure is important and requires efficiency improvement in order to properly protect violated rights of electoral subjects.
As for transparency of district administrative courts activities, the conclusions of CVU in the intermediate report are still relevant. Court decisions are included into the State Register of Court Decisions, but some of them appear in the Register with a delay of several days or even weeks. At the same time in the intermediate report we mentioned that there were a number of decisions which were not included in the State Register of Court Decisions. They finally were included but in some cases with a delay of more than three weeks. District administrative courts should publish their decisions on electoral disputes in the Unified State Register of Court Decisions more quickly, as electoral process is speedy and such information for participants of election process is quite indemand.
The project is implemented by All-Ukrainian NGO "Committee of Voters of Ukraine" in collaboration and with the financial support of the Council of Europe. The content of this publication is the exclusive responsibility of Committee of Voters of Ukraine and does not reflect the views of the Council of Europe.
