The fact of scheduling interim elections by the Central Election Commission in constituency 208 with the delayed publication of the decision in national media contains elements of free interpretation of electoral law and contradicts the previous election scheduling practices.
Thus, on June, 5, 2020, the CEC had a meeting and approved Resolution № 99, which due to the death of a people’s deputy Valeriy Davydenko previously elected in the constituency, scheduled the interim elections of a people’s deputy of Ukraine in a single-member district No 208 in Chernihiv Oblast, for Sunday, October, 25, 2020.
As of June, 6, the Resolution was posted on the CEC official website. However, it was only on August, 26, 2020, that the national media published it. With their actions, the CEC de facto postponed the start of the election process for interim elections for three months, with no due legal grounds therefore.
According to the Law “On Election of People's Deputies of Ukraine," the decision on scheduling the interim elections shall be taken by the Central Election Commission within ten days after the early termination of powers of a majoritarian deputy. The elections shall take place on the last Sunday of the 60-day-long term upon the Commission’s publication of the decision on setting the election date, and the election process shall start on the following day after the CEC’s decision publication.
The law distinguishes the terms “publication” and “promulgation” of the CEC decisions. The Law “On Election of People's Deputies of Ukraine" mentions the publication of the decision in the printed media. At the same time, the Law "On Central Election Commission" sets the immediate promulgation of the CEC decisions on its official website. Thus, the CEC, under the law, promptly promulgated Resolution No 99 on their website, but extensively delayed its publication in the printed media.
It is not the first time that the Commission set the start date for the election process at their discretion. Thus, when scheduling the interim elections in constituency No 179 (Kharkiv Oblast), the CEC Resolution of December, 13, 2019 No 1983 on setting the date for March, 15, 2020, was first promulgated on the CEC official website, followed by the publication in the “Voice of Ukraine” and the “Government Courier” newspapers on January, 15, 2020. At the same time, the analysis of CEC decision-making on scheduling interim elections from 2010 through 2019 shows no case when the Commission independently set a separate publication date, whereas the interim elections were appointed on the grounds of the minimum necessary (reasonable) time for printing the decision.
Civil Network OPORA hereby highlights that the CEC mandate does not include the appointment of the date for publishing the decision on setting interim elections. That is why, it shall be taking place within reasonable terms (the shortest possible, with no unjustified delay) upon making the decision.
There is a precedent for the CEC decision publication being dependent on the availability of budget funds. The same goes for the organization and conduct of elections. Establishing the concern is not the Commission’s mandate, either.
Besides, the fact that voters from constituency No 208 did not have their representative in the parliament for about three months is not conducive to the maximum exercise of their voting rights. On the other hand, amidst the COVID-19 destabilized setting, with no feasible forecasts on disease peaks, ignoring the context when scheduling elections poses additional risks for their organization.
Setting the interim elections of the people’s deputy of Ukraine in the single-member constituency No 208 for the same date as elections of village, township, city, district, and oblast councils, and village, township, and city heads presents a series of administrative challenges. Regular local elections shall take place under provisions of the Electoral Code of Ukraine, but the interim elections of a people's deputy of Ukraine shall follow the Law of Ukraine "On Elections of People's Deputies of Ukraine."
The decision about simultaneous administration of the interim parliamentary and local elections fails to comply with the proportionality principle, without due justification. Moreover, the means of reaching the legitimate objective are not proper, in view of the need to keep the balance between the unfavourbale consequences for rights, freedoms, and interests of voters and the government’s objectives to save budget funds.
To minimize the risks for further random scheduling of interim elections, the law shall eliminate the possibility to have a long period between the date of promulgation and publication of CEC Decisions. In preparing a draft law No 3485 "On Amending Certain Laws of Ukraine to Improve Election Law" for the second reading, suggested amendments to the Law "On Central Election Commission" shall include the terms and rules for publishing the CEC decisions or establish a uniform procedure for the promulgation (publication) of its acts.