On August 9, 2021, the draft Law of Ukraine “On the Principles of the State Policy in Transition” (No. 5844) was registered in the Verkhovna Rada of Ukraine, some provisions of which concern the election process and referenda. The draft law was introduced to the Parliament by the Cabinet of Ministers of Ukraine and has been developed by the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine.
The draft law proposes the following:
- The draft law proposes to restrict the right to be elected in local elections for persons who belonged to the senior leadership of the occupation forces and occupation administrations of the Russian Federation, or were their members.
The draft law proposes not to apply restrictions to the following three categories of persons:
- citizens who were part of the occupying forces of the Russian Federation under duress or against their will, and did not intentionally harm the lives and health of citizens;
- employees of the occupation administrations of the Russian Federation, which ensured the essential services of the temporarily occupied territories, and did not intentionally harm the lives and health of citizens;
- persons who were part of the occupation administrations under duress or against their will.
The proposed restriction on the right to be elected in local elections due to a person's involvement in the activities of the occupying forces and administrations will apply only to local elections. At the same time, the innovations will apply to local elections not only in the territories previously occupied, but also throughout Ukraine. The scope of restrictions on citizens, as provided by the draft law, will be applied according to the categories and with account for individualization.
According to the draft law, restrictions on passive suffrage can be challenged, including in court. However, the grounds and procedure for applying restrictions on the right to be elected in local elections and to hold office, as provided by the draft law, are determined by law. It is not clear from the draft law which law is implied. If the concept is used in general terms, as a synonym for "legislation", then neither this nor any other law determines the procedure for applying the restrictions. This implies legal uncertainty about the judicial or extrajudicial procedure, and the latter may violate the presumption of innocence. In addition, the draft law does not specify the period during which the restriction of passive suffrage shall apply. Thus, the authors of the draft law proposed to expand the restrictions provided by the current Electoral Code in the exercise of the right to be elected in local elections. According to the current election legislation, a citizen of Ukraine who has a criminal record for a serious or especially serious crime, a criminal offense against citizens' voting rights or a corruption-related criminal offense may not be elected a local deputy, village, settlement or city mayor if this criminal record has not been expunged or not removed in the manner prescribed by law.
The legislative initiative provides for the possibility of applying a new restriction of passive suffrage in local elections to persons who have not been convicted of a crime. The draft Law does not specify the entity that will be empowered to initiate and apply restrictions to specific individuals. There are no provisions that would determine acceptable documents and other sources of information about the involvement of individuals in the activities of the occupying forces and occupation administrations. It is noteworthy that the draft does not clarify the question of how the state will determine the coercive nature of the involvement of a person in the occupation forces and occupation administrations or the implementation of its tasks to ensure the essential services of the temporarily occupied territories.
In connection with the introduction of a government initiative to limit the right to vote in local elections, OPORA hereby notes the following:
- The Explanatory Report of the Venice Commission to the Code of Good Practice in Electoral Matters states that only a court can deprive a person of political rights by issuing a relevant decision. The Commission emphasizes that the grounds for suspending citizens' political rights must be provided for by law, comply with the principle of proportionality and rely on a conviction for a serious offense or a declaration of incapacity. Instead, the draft law proposes the extrajudicial nature of the imposition of restrictions, while leveling the importance of the conviction of a person of crimes against the foundations of national security of Ukraine.
- In the draft Law, the legitimate aim is to prevent the holding of public posts by persons who may harm important public interests, not supported by an appropriate level of legal certainty of the grounds and procedures for applying the proposed restriction. In our view, the listed grounds and exceptions for restricting the right to be elected in local elections cannot be objectively applied to citizens outside the procedure of criminal prosecution and comprehensive study of the actions of specific persons by law enforcement agencies and courts.
- Attempts to implement restrictions and exceptions from them at the level of election commissions or other non-judicial bodies may lead to lower standards of the candidate registration process, to unequal application of the law, and to unreasonable restrictions on the voting rights of citizens on the basis of false or distorted information about their involvement in the occupation forces and occupation administrations. In this context, it should be borne in mind that the problem of unequal and politically motivated application of the law during the registration of candidates has been a long-term unresolved issue in Ukraine.
- It is noteworthy that there are no proposals for amendments to the Criminal Code that would help prevent persons convicted of crimes against national security from holding positions in government. In particular, the current Code does not provide for sanctions for crimes against the foundations of national security in the form of deprivation of specific political rights, in particular, the right to be elected for a fixed term. Instead, it usually contains only a generalized wording of the sanction in the form of deprivation of the right to hold certain positions or engage in certain activities, or does not contain it at all (as, for example, in Articles 109 and 110 of the Criminal Code). In return, improving criminal and criminal procedure legislation is a more sustainable and less risky way for democratic election standards to counteract the involvement of persons involved in crimes against national security and defense. In contrast to this approach, the application of so-called lustration measures without a proper investigation of criminal offenses can help avoid the actual liability of persons who were part of the occupying forces and occupation administrations.
Given the lack of legal certainty about the grounds for restricting the exercise of passive suffrage and the legal ambiguity about the mechanism for implementing such restrictions, OPORA calls on parliament to study the government proposal comprehensively and to avoid unjustified risks to election standards in Ukraine.
It is important for the state to refrain from ill-considered signals for Ukrainian citizens living in government-controlled and temporarily occupied territories. On the one hand, the proposed model provides for the restriction of the right to be elected for persons who were part of the occupying forces and administrations only in local elections. And the same persons who will be restricted in their political rights at the local level will be able to run freely in the elections of the President of Ukraine and of the People's Deputies of Ukraine. On the other hand, from the point of view of the interests of reintegration of the temporarily occupied territories, it is critical for the government to publicly present only well-thought restrictive measures that have a solid legal basis, do not allow double interpretations, and are suitable for the unbiased application.
Draft law No. 5844 also sets out the principles for holding elections in the occupied territories. In particular, according to the draft law, local elections in the de-occupied territories may be called and held only in compliance with the requirements of the Constitution, the Electoral Code, and other laws. Instead, a local referendum can only be held after local elections have been held in the territory concerned. At the same time, the draft law emphasizes the need to comply with OSCE and Council of Europe standards on elections and referenda when organizing voting in the occupied territories, preventing Russian interference in the election process, ensuring respect for the rights of internally displaced persons, freedom of campaign, equality of rights and opportunities. These legislative proposals of the Government must be supported in order to ensure appropriate conditions for the free will of citizens in the occupied territories.
The draft law obliges the Government to develop and submit to the parliament, within 6 months after the entry into force of the Law, the draft laws on the peculiarities of holding local elections in the occupied territories and government-controlled frontline territories. In case of approval of this draft law, it is important to ensure the inclusive nature of the preparation of further legislative changes provided by the draft law.