INTRODUCTION

Russian military aggression in the Donetsk and Lugansk oblasts has created unprecedented challenges for the electoral process, depriving millions of Ukrainians of their practical ability to exercise their constitutional right to freely elect state authorities and local self-government bodies.

Early Presidential elections on May 25, 2014 in Donetsk and Luhansk regions were held under conditions of the so-called unconventional war. Organization and voting process in these regions were carried out in the context of the armed seizure of settlements, military units, facilities of law enforcement and government bodies under the guise of protests, mass intimidation, kidnapping and murder of civilians, political and civil society activists. Instead, early Parliamentary elections on October 26, 2014 were held amidst a large-scale fighting with the use of heavy weapons by Russian and terrorist groups.

According to the State Register of Voters[1] Donetsk oblast is the largest one by the number of voters in Ukraine (3 million 327 thousand 70 voters). Lugansk oblast by the number of voters takes the 7th place among 27 regions of Ukraine (1 million 784 thousand 936 voters), giving up only to Donetsk, Dnipropetrovsk oblasts, Kyiv city, Kharkiv, Lviv and Odesa oblasts.

Take over of part of the territories of Donetsk and Lugansk oblasts by terrorist groups has led to a dramatic decrease in the number of voters that had the opportunity to elect legitimate authority bodies at polling stations established at their place of residence. In particular, at early Presidential elections in Ukraine at polling stations in Donetsk oblast, which had a secure opportunity to work on Election day only 23% of total number of voters in the region were included in the voter lists (Chart 1). The corresponding figure for the polling stations in Luhansk oblast was 12% (Chart 2). Low enrollment of voters in Donetsk and Luhansk oblasts  with the opportunity to cast a vote at early Presidential elections occurred due to not only seizure of some cities and districts by illegal armed groups, but also to intimidation of election commissions members in the areas that remained under a certain control of a legitimate authorities.

In the Parliamentary elections 2014 the number of voters covered by operating polling stations in Donetsk and Lugansk oblasts significantly increased, considering the ATO forces released of a number of settlements from Russian and terrorist groups. In the Donetsk oblast at polling stations that opened on Election Day, on October 26, 2014, the voter lists included almost 48% of total number of voters in the region, while 52% of voters belonged to the occupied settlements or those in which it was impossible to conduct voting procedures. In Luhansk region, a corresponding figure was 26% of total number of voters in the oblast. At the same time MPs of Ukraine were elected on October 26, 2014 only in 12 of the 21 single-mandate districts in Donetsk oblast and in 5 of the 11 districts in Luhansk oblast.

Security situation influenced voter turnout in Donetsk and Lugansk oblasts. In early Presidential elections in Ukraine only 15% of voters in Donetsk oblast and 25% of voters in Luhansk oblast, that have been included in the voter lists, casted a vote on the polling stations that were open on Election day. Accordingly in the Parliamentary elections a corresponding figure in Donetsk oblast was 35% while in Lugansk oblast - 32%.

Estimates as of April 2015 election addresses of 32% of Lugansk oblast voters belong to controlled settlements by Ukraine (577 thousand 525 people from 1 million 784 thousand 936 people). The same figure in Donetsk oblast is about 46% (1 million 512 thousand 681 from 3 million 327 thousands 70 people). These calculations are based on the list of cities, villages, settlements of Donetsk and Lugansk oblasts with a temporary special order of local government, determined by the Verkhovna Rada of Ukraine[2] resolution and taking into account the actual boundary line and its changes due to the breach of truce by illegal formations.

EXPERIENCE OF ELECTIONS CONDUCT IN DONETSK AND LUGANSK OBLASTS IN 2014

Special Presidential and Parliamentary elections in Ukraine in 2014 were taking place in conditions of a legal uncertainty status of the territories in Donetsk and Lugansk oblasts, de facto occupied by the Russian military and terrorist groups. Unlike the Autonomous Republic of Crimea and Sevastopol City that on 04/15/2014 were acknowledged as occupied by a specific law of Ukraine, occupied parts of Donetsk and Lugansk oblasts were found so after the Presidential and Parliamentary elections. Verkhovna Rada of Ukraine adopted the resolution on recognition of certain districts, towns, villages, settlements in Donetsk and Lugansk oblasts occupied only on 03/17/2015[3]. These circumstances led to the fact that the election process formally started even in those parts of Donetsk and Lugansk oblasts which were fully occupied by illegal groups. Instead, new for Ukrainian election practice security challenges required operational changes to the legislation which were made even after the beginning of the respective election process. The lack of a coherent national strategy for countering aggression, especially in its initial stages had a negative impact on the organization of the elections. In particular, at early Presidential elections administrative arrangements in parts of Donetsk and Lugansk oblasts were made even under the circumstances of actual control of settlements by illegal armed groups. Thus putting at risk the lives and health of election commissions members.

Key issues are fixed at special Presidential elections in Ukraine in 2014

• Military actions of illegal armed groups, threats to members of election commissions, seizure of premises and equipment of election commissions (these illegal actions were aimed at disrupting the elections and depriving citizens of their fundamental right to vote freely and elect their representative[4]);
• The need to close access to the State Voters Register in parts of Donetsk and Lugansk oblasts due to the attempts of unlawful interference and attempts to use data on voters during the so-called «referendum», which complicated the elaboration of preliminary and revised voters lists[5]. Familiarity with the preliminary voters lists and sending invitations to registered voters by election commissions in Donetsk and Lugansk oblasts were hardly ensured;
• The need for additional legislative regulation powers of the executive authorities and law enforcement agencies in the organization of elections (particularly election records, if necessary, may be accompanied by SBU, the CEC on the proposal of the heads of regional state administration received the authority to change the location of the DEC, in exceptional cases executive authorities were authorised to provide DEC with the premises outside of TDE);
• The number of rotations in the  composition of DECs and PECs in Donetsk and Lugansk oblasts was extremely massive in comparison with other regions;
• A widespread incidents of lack of quorum for decisions by election commissions, despite the reduction of the minimum commissions composition from 12 to 9 members;
• Failure to form PECs, taking into account the actions of intimidation by illegal groups, including the use of media (for instance, from 22 DECs in Donetsk oblast only 10 formed PECs fully or partially);
• The need for legal regulation of situations when ballots may not be transferred to the DEC from CEC and to PEC from DEC;
• The need to introduce a special procedure to include military men who were on duty in Donetsk and Lugansk oblasts in the voters lists (this issue was resolved only on May 20 by amending the Law of Ukraine «On elections of President of Ukraine»);
• The absence of conditions for campaigning and illegal restriction of Ukrainian broadcasters.
• The election process was held in conditions of active hostilities and failure to comply with the ceasefire protocol outlined in Minsk on 09.19.2014. This fact complicated the full-scale election campaign, affected the administrative arrangements for elections;
• Information and physical actions of intimidation of election commissions members and voters had quite a mass character;
• The campaign unfolded under conditions of incomplete recovery of Ukrainian media broadcasting in the liberated territories by the ATO in Donetsk and Lugansk oblasts, especially in towns close to the actual boundary line;
• The work of the State Register of Voters was blocked or restricted in areas that are near warfare areas. It  accordingly affected the work with the voters lists;
• Replacement of DEC composition was almost 100 % during the election process in Donetsk and Lugansk oblasts, meanwhile the national index of rotations was 50%;
• In terms of Parliament withdrawal from the legislative solution of problems regarding the organization of elections in  Donetsk and Lugansk oblasts, the CEC had to find innovative options for their solutions (in particular, the CEC made a number of decisions regarding changes in addresses of district election commissions for the time of preparation and conducting of early Parliamentary elections. In fact, it was about the transfer of DEC from one town of the district, which was on the line of fire fighting to a nearby relatively calm town or village);
• Due to an unpredictable possibility of opening of the polling stations in some districts of Donetsk and Lugansk oblasts, which were partly under the control of illegal armed groups or were in the so-called front-line zone, electoral subjects were limited in exercising their legal rights and responsibilities;
• The subjects of the election process and the public received full information about the real limits of single-mandate districts too late, de facto those were changed as a result of military actions. Thus, candidates were restricted in the election campaign implementation and/or the realization of other rights in the electoral process. However, voting on a small number of polling stations in problem districts de facto caused a significant deviation from a standard number of voters in the constituency. For instance, at the SMD #45 (Donetsk oblast) MP was elected under conditions where voters lists at 4 open polling stations included only 1.2% of the total number of voters in the district. In the meantime in the district #53 an actual number of voters at open polling stations was 9% of the total number of voters in the district. In the district #112 a corresponding figure was 31%. (See Table 1).

Voting did not take place in 10 of the 12 territorial districts in Lugansk and 14 of the 22 districts in Donetsk oblasts. Due to the illegal actions of formations more than 4 million of voters in Donetsk and Lugansk oblasts were denied suffrage.

Key issues noted on special Elections to the Verkhovna Rada of Ukraine in 2014

Voting in early Parliamentary elections was held in 12 of the 21 electoral districts of Donetsk oblast and 5 of the 11 districts of Luhansk one. As a consequent of the fighting and settlements occupation, more than 3 million voters weren't able to vote in Donetsk and Lugansk oblasts.

VOTING RIGHTS OF INTERNALLY DISPLACED PERSONS: INTERNATIONAL STANDARDS, NATIONAL PRACTICES AND UKRAINIAN PECULARITIES

Guidelines for the movement of people within the country (Economic and Social Council, the Human Rights Committee of the United Nations, 1998), which is the basic international instrument in this policy that determines the internally displaced persons as individuals or a group of people who were forced to leave their homes or habitual residence, in particular, as a result of or in order to avoid the consequences of armed conflict, mass violence, human rights violations or natural disasters caused by human activity and people who haven't crossed an internationally recognized state borders[6]. This definition was used in the formation of the special Law of Ukraine aimed at ensuring the rights and freedoms of internally displaced persons.

Pursuant to the Law of Ukraine «On the rights and freedoms of internally displaced persons», adopted by the Verkhovna Rada of Ukraine on October 20, 2014, internally displaced person is citizen of Ukraine, permanently residing on the territory of Ukraine, that was forced or voluntarily left one's residence place as a result of or in order to avoid negative impact of armed conflict, temporary occupation, situations of generalized violence, mass violations of human rights and disasters of natural or human-made origin[7].

According to the Law of Ukraine, the fact of internal displacement shall be confirmed by the certificate of registration of internally displaced persons. In order to get a certificate, the person shall approach the social protection department of local state administration at the place of actual residence with an application for the certificate of registration as an internally displaced person. However, regional departments of the central executive body responsible for implementation of the state migration policy shall insert to the certificate of registration of internally displaced person information about registration of place of residence. Certificate of registration of internally displaced persons certifies place of residence of IDPs at the moment of emergence of such circumstances that have caused displacement.

It should be noted that the Law «On ensuring the rights and freedoms of IDPs» defines that the certificate of registration of internally displaced persons shall be valid during six months from the date of its issuance. In case of the continuance of circumstances which caused the internal displacement, the validity of this certificate may be extended for the next six months.

On the one hand, procedures for residence record and registration of IDPs give them the opportunity to register their place of residence, which may be relevant to the determination of belonging to the local community. On the other hand, they emphasize the temporary status of internally displaced persons. The internally displaced person may lose one's status in case of the disappearance of the circumstances that have caused the move from the former location. Failure of IDPs obligations stipulated by a special law may also lead to deprivation of the respective status.

According to the Ministry of Social Policy and the UN Agency for Refugees, as of 04.24.2015 p. 1 million 236 thousand 500 internal displaced persons[8] are registered in Ukraine. Almost 50% of internal migrants are on Ukrainian state-controlled territories of Donetsk and Lugansk oblasts. Among other regions of Ukraine a significant number of internal migrants are in Kharkiv oblast (163 thousand), Zaporizhia oblast (87 thousand 600 people), Kyiv city (87 thousand 300 people), Dnipropetrovsk oblast (72 thousand 800 people). Ukraine has a permanent unified information database of IDPs. Collaborating with UN institutions Ministry of Social Policy of Ukraine plans to work on improvement of IDPs data collection system, which will allow to study their demographic structure and needs.

In world practice, there are different approaches to the electoral rights of internally displaced persons. On the one hand, international legal instruments, including the UN Guiding Principles on Internal Displacement in the country, prohibiting discrimination against IDPs using these rights: 1) right to the freedom of speech, 2) the right to freedom of association and participation in the civil cases on equal terms; 3) the right to vote and participate in the conduct of state and public affairs, including the right of access to the resources needed to exercise this right. The guidelines emphasize that internally displaced persons have the right to fully and equally participate in the conduct of public affairs at all levels. Thus, international standards of internal policies for IDPs encourage national states to ensure voting rights to IDPs at the national level as well as at the local level.

The participation of IDPs in national elections is the most common practice, herewith the state is trying to reach the largest number of voters (for example, in the Republic of Azerbaijan at Presidential and Parliamentary election special polling stations are organised in areas of voters dense residence).

On the other hand, in local elections in the countries where there are circumstances of internal displacement implementing voting rights of internally displaced persons is compounded by various restrictions on belonging to a local community, by the legislative definition of occupation «temporality» or conflict areas, by the need to preserve voting rights of displaced persons in the areas around which the conflict unfolds. For example, before 2000 in Bosnia and Herzegovina voters internally displaced persons voted at local elections in the communities where they lived before a displacement. In 1996 during the municipal elections in the city of Mostar internally displaced persons that left the city due to the military conflict had to come personally to the polling stations or to use absentee voting mechanism. In return, in 2000 at the municipal elections internally displaced persons had opportunity to choose local communities where they will elect local self-government bodies. These people were included to the voter lists at their places of residence as of 1991 or the place of actual residence under the conditions that they live in this community for at least six months before the elections. If internally displaced person did not choose the place of voting at local elections the voting address automatically was determined according to the census of 1991.

Taking into account the specificity of conflict in Georgia, the experience of this country on resolving the electoral rights of internally displaced persons could be interesting for Ukraine. The law on parliamentary elections in 1995 and in 1998 endowed internally displaced persons the right to elect their representatives according to proportional component of the mixed election system only, because formally the Parliament of Georgia included the deputies of the Autonomous Republic of Abkhazia and South Ossetia[9]with prolonged powers. In 1998, internally displaced persons were not able to vote at local elections due to the requirement of having a registration of permanent residence (by the way, this registration deprived the person’s status of an internally displaced person and the relevant social security).

In 2000 the issue of voting of internally displaced persons at local elections has been the subject of consideration by the Constitutional Court of Georgia, but the institution has not found the solution because of formal reasons. The requirements of the international community, including the UN High Commissioner for Human Rights on the rights of internally displaced persons to vote at the elections led to the solution of this problem by the Election Code of Georgia in 2001 with amendments in 2003. This Code has removed all the restrictions on participation of internally displaced persons at local elections and voting by the majoritarian component of the parliamentary elections (this group of voters was included in the voter lists basing on the data of Ministry of displaced persons and settlement[10]).

The new Election Code of Georgia edited in 2012[11]also provides that internally displaced persons are included in the unified voter lists, including the local elections at their actual place of residence basing on the data of Ministry of individuals perforce displaced from the temporarily occupied territories of Georgia. However, when giving a ballot PEC members are obliged to check not only the voter’s identity card of the citizen of Georgia, but also a special certificate of perforce displaced person.

In the Republic of Azerbaijan the voting rights of internally displaced persons are properly secured at the national level, but voting of this group at local elections is not provided. Internally displaced persons are formally registered in the settlements of Nagorno-Karabakh and surrounding areas that are occupied by Armenia. Despite the systematic criticism of Azerbaijan made by international organizations on limiting the voting rights of displaced persons, the government continues to associate the voting of these people at local elections with the ability to restore control over the territories lost because of the war with Armenia (the right of displaced persons to vote at local elections, supposedly, will testify public recognition of the impossibility of returning occupied territories). At the same time, foreign citizens residing in the Republic of Azerbaijan at least 5 years are entitled to vote in elections of all levels, including local (on the condition that there is a similar provision in the state of nationality of the foreigner).

In the Republic of Moldova, where the number of people with the status of internally displaced persons is low (up to 1000 persons in 2004), the state focused on creating the conditions for voting in the national elections of residents of the Transnistrian region. Special and/or mixed polling stations were created for the citizens that on Election Day crossed the administrative border between the Transnistrian region and the rest of the Republic of Moldova to participate in elections.

In Ukraine, providing voting rights for internally displaced persons is carried out by changing the voting place without changing election address. In particular, Article 8 of the Law of Ukraine “On the Rights and Freedoms of Internally Displaced Persons” stipulates that internally displaced person exercises his right to vote in the election of the President of Ukraine, people’s deputies of Ukraine, local elections and referendums by changing the voting place without changing election address in accordance with Article 7 of the Law of Ukraine "On the State Register of Voters".[12] The procedure for temporary change of voting place for internally displaced persons is similar.

Five days before the special elections of the President of Ukraine and the Verkhovna Rada of Ukraine internally displaced persons were able to apply to the Register maintenance bodies at the place of their actual residence and change the place of voting without changing election address. At the special elections of the President of Ukraine voters from Donetsk and Luhansk regions, unlike voters from Crimea and city of Sevastopol, attached to the Register maintenance bodies supporting documents required for the change of voting place on general terms.

Instead, at the parliamentary elections in 2014, voters of Donetsk and Luhansk region could change the voting place without changing election address without submitting of supporting documents to the Register maintenance bodies. At the same time, citizens who temporarily changed their voting place had no right to vote for candidates in the single-mandate election districts.

The current Law of Ukraine “On Elections of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, Local Councils and Village, Town and City Mayors” provides that a citizen’s belonging to the territorial community is defined by his residence in its territory in accordance with the Law of Ukraine “On Freedom of Movement and Freedom to Choose Residence in Ukraine”[13]. Special law establishes residence registration procedure similar to the legislation on freedom of movement and freedom to choose residence for internally displaced persons. However, in this case the duration of registration of residence depends on the circumstances which caused displacement or on performing duties prescribed by the law.

At the same time, on the Election Day a voter, who is outside the locality where he lives, does not participate in the local elections, except the cases of being included to the voter lists at a special polling station (in this case voter included in the voter lists at a special polling station receives ballots to vote in the elections he has the right to vote). Change of voting place without changing election address at the local elections is not allowed[14].  It should be noted that during the local elections in Ukraine special polling stations are created only in stationary health care institutions. Thus, the implementation of right to vote in local elections by internally displaced persons is almost impossible, including the elections that will take place in the territories of Donetsk and Luhansk oblasts controlled by the state. This circumstance, of course, is contradicting the Article 38 of the Constitution of Ukraine, which empowers citizens the right to participate in public affairs, in national and local referendums, to freely elect and be elected to state authorities and local self-government bodies.

Statistics of temporary change of voting place without changing election address in 2014 shows that the procedure has not yet become an effective mechanism to ensure the voting rights of citizens who left the temporarily occupied territories or stay in the relevant territories. In particular, at the special elections of the President of Ukraine 171 078 citizens applied to the Register maintenance departments on changing their voting places. 34% of them – were members of precinct election commissions. Most often applications on changing the voting place were submitted by voters in L’viv oblast – 14 106 persons, Dnipropetrovsk oblast – 13 674 and the city of Kyiv – 10 691 persons. 4 451 Crimean residents and 1 587 residents of the city of Sevastopol have changed their voting place from the peninsula to other cities and districts of Ukraine[15]. In 2014 during the parliamentary elections 190 283 voters temporarily changed their voting place. The biggest number of voters changed the place of voting in Donetsk oblast – 21 704 persons, Dnipropetrovsk oblast – 15 040, L’viv oblast – 14 715, city of Kyiv – 11 213 and in Luhansk oblast – 11 119 persons, as well as 3.5 thousand voters of Crimea.

Features of Ukrainian situation of internally displaced persons and the diversity of approaches in other countries on insurance of their constitutional rights require the expert community and public authorities to carry out inclusive discussion about the ways of implementing right to vote at all levels for this group.

PECULIARITIES OF THE SYSTEM OF GOVERNANCE IN DONETSK AND LUHANSK OBLASTS IN THE CONTEXT OF PROSPECTS OF HOLDING LOCAL ELECTIONS

Military, political and security situation in Donetsk and Luhansk oblasts influenced the changes in the system of governance of territories of Donetsk and Luhansk oblasts controlled by the state. On February 2, 2015 Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Military and Civil Administrations”[16].

According to the Law, the Military and Civil Administrations (hereinafter – MCA) are temporarily public bodies acting in Donetsk and Luhansk oblasts as part of the Anti-Terrorist Centre of the Security Service of Ukraine. The purpose of forming these bodies is to ensure security and to normalize livelihoods of population, law enforcement, to counteract sabotage expressions and terrorist acts, to prevent a humanitarian disaster in the area of anti-terrorist operation.

MCA is formed by the decision of the President of Ukraine in case of necessity, and the reason to form it is the failure of village, township, city councils or their executive bodies of the powers endowed on them by the Constitution of Ukraine and the Law of Ukraine “On Local Self-Government”[17]. In a raion, oblast Military and Civil Administration is formed in case of not convening a session of relevant raion, oblast council in the terms established by law or to exercise the governance in the sphere of public order and security. According to the provisions of the Law, MCA could be formed even in the absence of fact of early termination of powers of local councils.

Thus, the reasons to form MCA are both – formal reasons (not convening the sessions, withdrawal, failure of powers), as well as unlimited list of needs for security aspects.

At the level of the oblast and raion oblast and raion administrations acquire status of the MCA, and their heads become the heads of relevant MCA. Part of the positions in MCA can be substituted by servicemen list of which was determined by Presidential Decree “On Some Issues of Military and Civil Administrations” on April 23, 2015[18].  MCA acquire the exclusive powers of local self-government bodies, including the cases that according to the Law of Ukraine “On Local Self-Government” could be resolved only at plenary meetings of the respective councils.

It is assumed that MCA will stop its activities on the opening day of the first session of the newly elected village, town or city council, and in the case of creation of oblast, raion Military and Civil Administrations to implement the governance in the field of public order and security – at the time of completion of the anti-terrorist operation. The Law of Ukraine “On Military and Civil Administrations” will expire in one year after its publication.

The Law of Ukraine “On Military and Civil Administrations” does not give a direct answer on the possibility of holding local elections if MCA is formed. In case of formation of MCA in the cities, villages, settlements it is assumed that they will stop their activities after the election of the new councils. The Law does not give a clear answer on the possibility of electing the respective councils at the level of oblasts and raions. In particular, it is stated that the oblasts and raions MCA, if they are created to ensure public order and safety, stop their activities at the time of completion of the anti-terrorist operation. It is quite difficult to understand from the provisions of the Law whether it will be possible to elect oblasts and raions councils if the MCA were created due to not convening the sessions of councils, and how to define the reasons for creating the relevant state bodies.

Legislation on the Military and Civil Administrations requires further harmonization with the Constitution of Ukraine, other Laws of Ukraine, including the aspects of citizens’ right to elect local self-government bodies. The list of MCA created in Donetsk and Luhansk oblasts can be found in Table 2.

BOUNDARY LINE BETWEEN THE OCCUPIED TERRITORIES OF DONETSK AND LUHANSK OBLASTS AND TERRITORIES CONTROLLED BY THE STATE. SPECIAL ORDER OF LOCAL SELF-GOVERNANCE IN PARTICULAR DISTRICTS OF DONETSK AND LUHANSK OBLASTS

September 16, 2014 Verkhovna Rada of Ukraine adopted the Law “On Special Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts”[19]. According to this Law a temporary order of local self-governance is established for three years in some cities, raions, villages, settlements of these regions.

Special order of local self-governance in particular districts of Donetsk and Luhansk oblasts provides involvement of local self-government bodies in appointing the heads of prosecution offices and courts, creating the people’s police by decision of local self-government bodies, concluding the agreements on economic, social and cultural development between local self-government bodies and central executive authorities, introducing the economic regime of business and investment activity different from general, defining the protected expenditures of the State budget of Ukraine for the development of particular districts of Donetsk and Luhansk oblasts. Adopting this Law the state has guaranteed cross-border cooperation of particular districts of two oblasts with Russian Federation and prevention of prosecution of the participants in the events in the Donetsk and Luhansk oblasts. In addition, the Law established the date of special elections of deputies of raion, city, raion in city, town and village councils and village, town and city mayors in particular districts of Donetsk and Luhansk oblasts on December 7, 2014.

Further deployment of military confrontation in Donetsk and Luhansk oblasts has made adjustments in the strategy of the State regarding a peaceful settlement. March 17, 2014 Verkhovna Rada of Ukraine amended the Law “On Special Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts” providing that its main provisions are effective from the date of entry into powers of the local self-government bodies in particular districts of Donetsk and Luhansk oblasts elected at the special elections that are conducted according to the Constitution of Ukraine and other Laws. At the same time, amendments have determined list of conditions for holding local elections in particular districts of Donetsk and Luhansk oblasts: compliance with OSCE standards for democratic elections, participation of impartial observers in monitoring, the withdrawal of all illegal armed groups, equal access to the media, the restoration of broadcasting Ukrainian media, transparent counting. In addition, Verkhovna Rada of Ukraine adopted a Resolution that recognized particular cities, villages, towns, raions of Donetsk and Luhansk oblasts, where the special order of local self-governance is introduced by the Law of Ukraine, as temporarily occupied until the withdrawal of all illegal armed groups, their military equipment, as well as militants and mercenaries from Ukraine and restoring full control of Ukraine over the state border.

Despite the recognition of temporarily occupied parts of Donetsk and Luhansk oblasts, Ukrainian Parliament has indicated a list of raions, cities, villages covered by the special order of local self-governance. The basis of this list is the Minsk Memorandum as of September 19, 2014 and Minsk “Complex of measures” as of February 12, 2015. Resolution of Verkhovna Rada of Ukraine contains the application that approves the line of “demarcation” linked to the area and developed on the basis of the Minsk Memorandum of September 19, 2014. The line of actual demarcation includes both – settlements covered by the special order of local self-governance, as well as cities, towns, villages with the usual order of self-governance. Demarcation line includes more than 80 inhabited “front-line” settlements, half of which belongs to the state-controlled territories that must be considered when planning the electoral process in two problem regions.

KEY PROBLEMS OF ELECTORAL PROCESS IN DONETSK AND LUHANSK OBLASTS THAT REQUIRE POLITICAL AND LEGAL SOLUTION PRIOR TO LOCAL ELECTIONS

Elections to the Donetsk and Luhansk Oblast Councils

One of the most important issues of the electoral process in Donetsk and Luhansk oblasts is adoption by the Ukrainian Parliament of an informed decision about the advisability of holding the next elections to the respective oblast councils.

Developments in these regions shows that such a decision should be made taking into account the interests of voters, the real possibility of such councils to represent common interests of territorial communities of Donetsk and Luhansk oblasts, the ability of law enforcement agencies to prevent illegal groups’ interference in the electoral process, the strategy of the state for the peaceful settlement. An equally important factor is the appropriate decision on the full restoration of Ukrainian information space in Donetsk and Luhansk oblasts.

Verkhovna Rada of Ukraine on the basis of objective information from the law enforcement agencies, the National Security and Defense Council of Ukraine, central and regional authorities must assess the possible implications of holding or non-holding the elections to Donetsk and Lugansk oblast councils.

Actually there are two main options for solving this problem, for which we can give arguments “for” and “against”:

First option to solve the problem is based on the prolongation of the powers of Donetsk and Lugansk Military and Civil Administrations by the end of anti-terrorist operation and de-occupation of parts of these regions or by the expiration of period established by the Law. This approach will require substantial improvement of the order of formation and powers of Military and Civil Administrations in accordance with the Constitution of Ukraine, the Law of Ukraine “On Local Self-Government”.

Arguments “for”:

• The state shows interest in attracting voters, residing in the temporarily occupied territories, to the process of forming oblast councils. Taking into account the fact that according to the Constitution of Ukraine oblast councils represent the common interests of territorial communities of villages, towns and cities, election of these councils in terms of actual elimination from voting of 54% of voters in Donetsk oblast and 68% of voters in Luhansk oblast will negate the value of these local self-government bodies;
• The state strengthens the international image of its own strategy of peaceful settlement in Donbass, linking the formation of oblast councils in these regions with the productivity of the preceding multilateral agreements;
• The state protects itself from potential risks of representation of anti-state forces in local self-government bodies that represent the common interests of local communities;
• Centralization of system of governance, including the replacement of certain categories of positions in the Military and Civil Administrations by servicemen, will facilitate controllable socio-political and security situation.

Arguments “against”:

• The absence of local self-government bodies, that represent common interests of territorial communities, becomes subject to political manipulation and external provocative actions. For example, any local conflict involving Ukrainian military units or central government bodies can provoke politically motivated demands and protests to restore a comprehensive system of local self-governance in the regions. Herewith, the newly elected city, town, village councils potentially can become the significant participant in these processes;
• The functioning of Military and Civil Administrations or any other bodies that assume powers of oblast councils will complicate the exercise of powers by city, town and village councils, will cause abuse by military and civilian administrations, that will intensify tensions in the regions;
• The absence of a legitimate power of oblast councils will not allow effectively apportion responsibility for the situation in the regions between central and regional levels of government;
• Questionable compliance with the Constitution of Ukraine of the order of formation and powers of Military and Civil Administrations, of the decision not to hold the elections to the Donetsk and Luhansk Oblast Councils.

Second option to solve the problem is based on holding elections to the Donetsk and Luhansk Oblast Councils only in state-controlled territories and recognizing the impossibility of holding elections in the temporarily occupied territories. Under these conditions, the number of deputies of oblast councils is determined by the actual number of voters that could be included in the voter lists in the state-controlled territories, during the formation of electoral districts occupied territories are not taken into account or taken into account conditionally. In this case the special law specifies that after the restoration of state control over the temporarily occupied territories the powers of respective oblast council are mandatory prematurely terminated and the early elections are appointed, which will take place throughout the territory of Donetsk and Luhansk oblasts. Alternatively, could be considered possibility of making decision of oblast council by majority of actually elected deputies.

Arguments “for”:

• The distribution of responsibility for the development of territories between central and regional level of governance;
• The possibility of comprehensive functioning of a system of local self-governance and ensuring the common interests of communities in the territories controlled by Ukraine.

Arguments “against”:

• Taking into account the socio-political and information situation in the regions, there is a possibility that frankly anti-state forces will be represented in oblast councils;
• It shows that the state is not ready to restore control over temporarily occupied territories and is negating oblast councils as bodies that represent the common interests of communities;
• The potential deterioration of coordination between the military and civilian governing bodies and excessive politicization of security measures;
• The objective difficulty to ensure voting rights of a large number of internally displaced persons who are staying within Donetsk and Luhansk oblasts.

Protection of displaced residents’ voting rights

International political standards for displaced residentsenvisage protection of their voting rights on all levels. Ukraine is currently at the beginning stage of realizing problems of voting rights of displaced residents during elections, particularly local elections, and this requires inclusive and expert discussion. 

Alternate solutions of the above-mentioned problem include:

а) Opportunity for the displaced residents to change their voting address subject to a place of residence registered in compliance with the Law of Ukraine “On protection of rights and freedoms of displaced residents” and by means of filing a personal application to bodies responsible for keeping the State Registry. In such event it would be reasonable to establish a requirement for the displaced resident to reside in the respective community during a certain period before the voting day (six months or otherwise). Application of such approach will enable protection of constitutional rights of the displaced residents, because they have no objective possibility to elect local self-government bodies in communities, where they had a registered place of residence before displacement. Menawhile the voting right of displaced residents at the local elections would be advisable to regulate in 2015, however a transition period should be envisaged for implementation of new procedures. Amongst others, application of a special procedure for changing the voting address and/or confirmation of being a member of a territorial community during the regular local elections 2015 may be complicated by the following factors: a legally defined status of a displaced resident is currently temporary and requires confirmation every six months; taking into consideration a period of introducing a status of a displaced resident, this group of voters had reasonably little chance to obtain sufficient information about processes in the territorial communities; state bodies have not completed finalization of an accounting system for displaced residents; manipulations during elections with participation of individual displaced residents may have negative impact on initial social integration of entire groups of displaced residents into new territorial communities. Legislation may stipulate that subject to preservation of  displacement circumstances (occupation of territories), the right to elect local self-government bodies could be exercised by a displaced resident, but after a reasonable time from the moment of legal introduction of the respective status.

б) Opportunity for the displaced residents to temporarily change their voting place during elections of Donetsk and Luhansk local councils in such regions, in case of such elections. If this occcurs, the voting address remains unchanged. This option may be considered as a transitional period in protection of voting rights of this group of citizens.  It may be regarded as an advantage of “transitional” procedures that the displaced residents will preserve an opportunity to vote in communities they were displaced from, in the context of a peaceful settlement of the conflict. If the territories of Donetsk and Luhansk oblasts are released from occupation, the voting problem for displaced residents will cool down.

Peculiarities of election process in the most unstable (“front-line”) communities of Donetsk and Luhansk oblasts

During parliamentary elections 2014 the election process formally lasted till the moment of recognizing a failure to handover voting ballots to the DEC and PEC even for the territories which were totally occupied by the terrorist groups[20]. On the one hand, this caused potential risks for political manipulations in the voting process on the unstable territories. On the other hand, - in such conditions there existed challenges to security of election commission members who performed their duties in unstable districts.

Taking into consideration experience of voters in 2014, it would be reasonable to implement a special mechanism for ascertaining facts of failure to conduct voting in individual cities, villages, towns, regions at all stages of voting process. One of the options is that a special law on peculiarities of elections in Donetsk and Luhansk oblasts would envisage a procedure for ascertaining a failure to conduct voting in individual cities, villages, towns by the Resolution of the Verkhovna Rada of Ukraine based on the CEC submission and with view to information provided by law enforcement bodies.  The list of grounds for implementing such procedure should be exhaustive and include interference of illegal armed groups into the election process, mass intimidation of voters and election commission members, terroristic acts, restrictions on broadcasting Ukrainian mass media, which cannot be prevented by standard security measures. After elimination of circumstances causing failure to conduct voting in individual cities, villages, towns, the Verkhovna Rada of Ukraine should adopt a Resolution on conduct of regular elections in respect of individual city, village, and town. In such a case, the election process should include all stages starting from announcement of the election process.  

In the context of unstable security situation in Donetsk and Luhansk oblasts, there were mass cases of noncompliance with the decision-making procedure by the election commissions. According to the OPORA observers, a considerable part of decisions made by the election commissions in Donetsk and Luhansk oblasts were unauthorized in terms of membership and this resulted from necessity to finalize tabulation, defining voting results in the district in emergency conditions. It is suggested, in exceptional cases and subject to availability of official observers at the meetings, to authorize election commissions to take decisions by a majority of attendant votes. Commission that is taking decisions by a majority of attendant votes should be obliged to give notice to the Territorial Election Commission (TEC) about respective circumstances. In its turn, TEC should immediately inform electoral subjects about such situation.  

In the Law on local elections, it would be reasonable to regulate participation of the military personnel of the Armed Forces of Ukraine and the Security Service of Ukraine employees in ensuring law and order during elections, protection of election commissions’ premises and transportation of elections-related documents.

Annexes

Table 1. Results of special elections to the Verkhovna Rada of Ukraine in 112 single-member districts in Donetsk and Luhansk oblasts

Table 2. Formed CMA in Donetsk and Luhansk Oblasts