OPORA hereby states the fact of the Central Election Commission making attempts to restrict rights of national observers by means of putting to vote the issue of granting permission to them to attend the meetings. The organization emphasizes that receiving such permission is not provided by the law.
In our, view, the protocol decisions adopted by the Central Election Commission are illegitimate and such that could provoke inappropriate treatment of observers on the level of District Election Commissions and Polling Station Commissions, and other electoral subjects. It is inadmissible to have the unequal treatment of national and international observers, which is manifested during organization of meetings and working sessions of the CEC. Central Election Commission must warn about the unequal application of the law in the context of securing the right of official observers to attend its meetings.
In the face of the pressing need to gain trust from the society, we appeal to the CEC to make every effort to provide for transparency and openness of the higher authority administering the election process. On its part, OPORA will apply measures to produce a legal evaluation and prevent any illegitimate actions in the context of activities of official observers coming from any election subjects.
On March, 21, 2019, during the meeting of the Central Election Commission (hereinafter – the Commission), when announcing the attendees of the commission meeting, an item was put forward for discussion and voting as to granting permission for attendance to official observer of the All-Ukrainian Non-Governmental Organization “Civil Network OPORA” in a foreign election district. At the same time, the meeting was also attended by the official observer from the ODIHR OSCE, while no voting was undertaken on his attendance.
The same occurred at the meeting on March, 22, 2019. Head of the Central Election Commission put to voting the item as to permission for official observer of the All-Ukrainian Non-Governmental Organization “Civil Network OPORA” in the foreign election district to attend the commission meeting. At the same time, the issue on attendance of observers from foreign countries or international organizations has not been put forward for voting. For cause of breaching on part. 9, Art. 28 of the Law of Ukraine, the official observer drew up the Act on the Breach of Law.
Thus, the CEC has multiple times showed the unequal treatment of national and international observers, and hence discriminated the citizen of Ukraine (official observers) in the process of their exercise of the right for observation.
It must be emphasized that the targeted intentional efforts of the CEC to restrict possibilities of national observers by imposing permissions or invitations not inscribed in the law is a threat to election process. Actions and decisions of the CEC are the pattern to follow by members of district and polling station commissions. Any attempts to restrict the rights of official observers on the level of the CEC can provoke similar inappropriate actions on the part of election commissions of lower levels.
We deem illegitimate the actions of the Central Election Commission on adopting certain decisions granting permissions to official observers from non-governmental organizations to attend the meeting for the following reasons.
The right to attend the meetings of election commissions is part of subjective voting rights of citizens needed for the efficient observation over electoral process legal compliance. The Commission can properly secure the right by complying with the principles of openness and publicity of its activities. In addition, the possibility to conduct observation, including also at the meetings of the Commission, is stipulated by the Law of Ukraine “On Election of the President of Ukraine” by the procedure of receiving permission by a non-governmental organization to have official observers.
The right for having official observers attending meetings of election commissions during the Presidential election in Ukraine is regulated in the current law by part 2 of Article 4 of the Law of Ukraine “On Central Election Commission,” and part 9 of Article 28, part 9 of Article 69 of the Law of Ukraine “On Election of the President of Ukraine.”
Under the general rule, the right of attendance at the meetings of the Commission under part 2 of Article 4 of the Law of Ukraine “On Central Election Commission” without permission or invitation of the Commission rests with the following subjects: candidates for the position of the President of Ukraine and their authorized representatives in the national election district; candidates for the people’s deputies of Ukraine; authorized representatives of candidates for the position of the President of Ukraine, authorized representatives of the parties who are election process subjects; authorized representatives of initiative groups of all-Ukrainian referendum; and official observers from non-governmental organizations, from foreign states, international organizations, and representatives of mass media.
The above mentioned provisions are specified, among other clauses, in the context of identifying the number of attendees at the meeting, by part 9 of Article 28 of the Law of Ukraine “On Election of the President of Ukraine” that stipulates the following: “The meetings of election commission can be attended without permission or invitation of the respective commission only by members of election commissions of the higher level, by candidates for the position of the President of Ukraine, by their authorized representatives (not more than one authorized representative from one candidate), by official observers from presidential candidates, and from parties who are part of the election process, from non-governmental organizations (in total, no more than two persons from one presidential candidate, from a party, and from a non-governmental organization), as well as by official observers from foreign states and international organizations, by representatives of mass media (not more than two persons from one mass medium).
Moreover, the right of attendance of official observers from a non-governmental organization is stipulated in part 9 of Article 69 of the Law of Ukraine “On Election of the President of Ukraine”, according to which they could attend:
- in compliance with the provisions of this Law, at the meetings of district and polling station commissions according to the territorial election district, in line with provisions stipulated by part 9 of Article 28 of this Law, including also during the vote count at the polling station, establishing the voting results in the territorial election district;
- when issuing voting ballots to members of election commission, including also for organization of voting at the place of their stay, and when running the voting;
- in compliance with the requirements of this Law, at the meetings of district and polling station commissions, including also during the vote count at the polling station, and establishment of the voting results.
A similar right to attend the meetings of polling station and district commissions, along with the national observers, belongs to official observers from foreign states and international organizations.
Other persons, pursuant to part 10 of Article 28 of the Law of Ukraine “On Election of the President of Ukraine” can attend the commission meeting only upon permission or upon invitation of the commission, whereupon the decision is made at the commission meeting. The law does not specify the list of persons that belong to the category of “other persons.” However, as based on the content of the above mentioned clauses, these are the persons who do not have the right to attend the meetings of election commissions under the law. From this perspective, despite the corresponding similar provisions specified in the law on national and international observers, the Commission has illegitimately referred the official observer from the All-Ukrainian NGO “Civil Network OPORA” in a foreign election district to the category of “other persons” but confirmed the right to attend under the law for international observers, without any permission or invitation.
Systemic practices of the CEC on granting permission to attend the meeting to national observers shows that similar provisions on the right to attend the CEC meetings for national and international observers are applied by the Commission in different ways, which goes against the Constitutional provisions and international standards of administering and conducting election. In particular, pursuant to part 1 of Article 8 of the Constitution of Ukraine, it is recognized and enacted the principle of the rule of law. According to the Law of Ukraine “On Central Election Commission,” the same principle lies in the basis of operations of the Commission. A key feature of this principle, as stated in the Report of Venice Commission on the rule of law, is legal certainty, which is expressed through the prism of banning discrimination and securing equality before the law, foreseeable consequences of administering the law. Article 21 of the Constitution of Ukraine states: “All people shall be free and equal in their dignity and rights.” Besides, the principle of equality is reflected in Article 24 of the Fundamental Law and enacted through the ban of any privileges or restrictions based on race, skin color, political, religious, and other beliefs, gender, ethnic and social origin, property status, place of residence, linguistics or other characteristics. Therefore, the practice of unequal application of the same legal provisions seems questionable, which goes against the constitutional principle of equality, and is expressed in creating unequal conditions for participation in election process depending on affiliation of an observation subject.
In this respect, The Code of Good Practice in Electoral Matters approved by the Venice Commission includes the recommendation to grant to national and international observers the broadest possibilities to participate in the observation over election. According to par. 3.2 of the Code, the subject matter of observation also needs to focus on authorities compliance with the impartiality principle. According to par. 87 of the Code of Good Practice in Electoral Matters, there are three categories of observers: national observers who support a certain party or a candidate, non-party affiliated national observers, and international observers (non-affiliated). In practice, the difference between the first two categories is not always obvious. That is why, it is better to make the observation procedure as open as possible, both on the national, and on international levels.
The Report on the Rule of Law adopted by the Venice Commission on March, 25-26, 2011, defines foreseeability such as the law must where possible be proclaimed in advance of implementation and be foreseeable as to its effects: it has to be formulated with sufficient precision to enable the individual to regulate his or her conduct. However, a too broad discretion of the Commission’s actions does not allow to foresee the consequences of application of provisions on the right to attend for official observers from a non-governmental organization in a foreign election district, and for international observers at the Commission meetings, and can produce a negative effect on denial of access for them to the Commission meetings.
Therefore, we deem the abovementioned actions of the Central Election Commission as breaking of principles of the rule of law, such as legal certainty, antidiscrimination and equality before the law.
It must be emphasized that too broad discretion on taking actions or making decisions by a higher authority of administering election process poses a threat to democratic nature of elections, and also does not facilitate the efficient public control over compliance with the principles of legitimacy and impartiality on the part of the Commission. Therefore, we appeal to the Central Election Commission with the request to abstain from taking illegitimate actions on breaking the procedures of admittance of official observers to Commission meetings, and to abide by the principle of the rule of law.