Restrictions on the exercise of the right to be elected following the consequences of the occupation: international standards and discussions on the introduction in Ukraine

Background

Political rights are designed to enable the participation of citizens in the socio-political life of the country and the management of public affairs. They can be implemented in various forms, such as the engagement in the activities of political parties, participation in elections and referendums, peaceful assemblies, etc. 

Under special legal regimes, these rights can quite naturally be limited — that is why elections do not take place during martial law. Because of the need to effectively resist the aggressor, it is impossible to ensure compliance with international standards and principles of suffrage instrumental to the democratic elections, and indispensable for the elected government to be considered legitimate.

At the same time, today, discussions are getting more active about the post-conflict future of Ukraine, the reintegration of the de-occupied territories, and combatting the influence of the aggressor state through its supporters (such as accomplices, collaborators, and others) on the political life of our state. Their activities in the authorities may threaten the preservation of statehood and democratic development of Ukraine. 

After the Second World War, the doctrine of the so-called "militant democracy" was developed and designed to impose legal restrictions on democratic freedoms to safeguard democratic regimes from the threat of their overthrow by legal means. We are talking about the establishment of material restrictions on the political process: the prohibition of political parties and other associations, the institution of lustration, non-admission to elections and civil service, restrictions on the right to hold certain positions, restrictions on freedom of speech and peaceful assembly following the encroachments on certain values (as a rule, this is democracy itself, secularism, territorial integrity and independence of the state), the prohibition to amend the Constitution on certain issues.

However, since the scale of the consequences of Russian aggression is incomparable with the consequences of any of the conflicts after the Second World War, one should take into account some avenues, in particular the duration of the occupation, which affects the following: 1) the time for full restoration of constitutional law and order, which defines the duration of the transition period (transition from military-civilian administrations to civilian administration), and therefore the possibility of organizing a real electoral process; 2) the number of accomplices and collaborators who need to be identified within the terms of the criminal investigation (they can be quite long). This also leads to a discussion about the failure to hold elections in the de-occupied territories for a certain time in the context of the proportionality of such an event and compliance with generally accepted democratic standards.

According to the findings of a sociological survey commissioned by the Civil Network OPORA, 68.4% of respondents believe that after the liberation of Crimea and certain regions of Donetsk and Luhansk oblasts (ORDLO) occupied in 2014–2015, elections should be postponed there. 14% less Ukrainians support the idea that such a transfer is needed in the Ukrainian territories that the Russian Federation seized after February 24, 2022. In the case of Crimea and ORDLO, most respondents believe that the elections should be postponed for a period of 1 to 5 years; in the case of the newly occupied territories — for 1 year.

In addition, there is a broad demand for liability for involvement in the collaborative activities. Thus, according to a sociological study commissioned by the Civil Network OPORA, the overwhelming majority of respondents (61.2%) believe that the right to vote and be elected should be limited to three categories of people: those who accepted a Russian passport, persons who participated in the so-called "elections" and "referendums" and organized them, as well as those who worked in the occupation authorities and law enforcement agencies. As few as 7.4% of respondents believe that none of these people should be deprived of their voting rights.

Certainly, participation (direct or indirect) in military aggression against one's own people is a circumstance that can affect the scope and method of exercising the political rights of citizens, but the responsibility for such actions should be commensurate with their implications. Striking this balance will be decisive in the implementation of our European integration aspirations.

Approaches To The Restriction Of Political Rights 

Russia's aggression, with the temporary occupation of Ukrainian territories, can be a legitimate reason for banning political parties, restricting passive suffrage for crimes against the foundations of national security, and peaceful assemblies under a special legal regime for the time necessary to fully restore constitutional order in the de-occupied territories.

There are two approaches to limiting the exercise of rights, in particular, to participate in the management of public affairs:

  • classical (established) with mandatory judicial control (such restriction shall be applied by the court);
  • without mandatory judicial control (the law does not require a court decision to apply the restriction).
  • soft (informational), which consists not directly in restricting voting rights but in establishing the obligation to publicly disclose (declare) information to voters about their involvement in compromising activities.

In the practices of the European Court of Human Rights (hereinafter referred to as the ECHR), restrictions on the exercise of human rights are mainly introduced with judicial control, which better guarantees the legality of their application. In that case, they use the approach also called the "three-part test". Thus, the ECHR checks:

  • whether such restriction of human rights is provided for by law;
  • whether it has a legitimate purpose; 
  • whether it is necessary in a democratic society (in particular, proportional). 

That is why the Venice Commission recommends that the restriction on exercising voting rights be proportional and proclaimed in a court decision.  The Constitutional Court of Ukraine also considers that restrictions on exercising constitutional rights and freedoms cannot be arbitrary or unfair. They should be established exclusively by the Constitution and laws of Ukraine, have a legitimate goal, be conditioned by the public need to achieve this goal, and be proportionate and reasonable.  In the event of a restriction of a constitutional right or freedom, the legislator shall introduce such legal regulation that will make it possible to optimally achieve a legitimate goal with minimal interference with the exercise of this right or freedom, and not violate the essence of such a right (para. 3 sub-clause 2.1, clause 2 of the Decision of the Constitutional Court of Ukraine dated June 1, 2016 No.2-рп/2016). For example, the court can identify whether the exercise of passive suffrage or the right to participate in the administration of public affairs by a particular person poses a real threat to national security and whether there is a way to limit the exercise of the right proportionate to the achievement of a legitimate goal. 

The second approach, where restrictions are provided directly in the law without mandatory judicial control, does not belong to common democratic practices and is the subject of discussion. This is primarily because the protection of rights by an independent and impartial court has become a generally recognized guarantee and even a separate right (Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 55 of the Constitution of Ukraine), the violation of which shall be verified by the European Court of Human Rights. In addition, ensuring access to justice is a positive duty of the state, since it is a component of the rule of law (as emphasized by the Venice Commission in the study "Rule of Law Checklist").

On the other hand, restrictions on passive suffrage, combined with a ban on a political party or restrictions on the exercise of political rights, can be an instrument of “militant democracy”.Such prohibitions and restrictions are mainly related to the adherence to ideology or belonging to a totalitarian (authoritarian) regime incompatible with democracy (such as the Nazi, fascist, or communist). Undoubtedly, the ideology of modern Russia deserves to be among this list. Moreover, the Parliament registered Resolution No.9101 of March 13, 2023, which proposed to define the current political regime in the Russian Federation as racism, as well as to condemn its ideological principles and social practices as totalitarian and misanthropic. 

In addition, the Law of Ukraine “On Political Parties in Ukraine” (paragraph 11 of Part 1 of Art. 5) includes definitions of the terms "glorification", "armed formation," "paramilitary group," "gang," "self-proclaimed body that usurped the exercise of power in the temporarily occupied territory of Ukraine," and "mercenary" related to Russia's armed aggression against Ukraine. This implies that the hateful ideology professed by modern Russia is outlined in the legal domain.

In other words, the restriction of passive suffrage or other political rights from the point of view of the doctrine of "militant democracy" should be based on clear criteria, one of which may be adherence (connection) to the ideology (activity) of a banned political party, which should have legally defined characteristics. 

The third approach, which, at first glance, least restricts passive suffrage and leaves the decision on the admission of a person to an elected office to voters, is to establish an obligation to disclose information about collaboration activities (including circumstances such as form, motives, period, consequences, etc.). In this case, candidates for elected positions are obliged to publicly disclose such information at the congresses during the nomination, in their autobiography and/or by filling out a special declaration, or to confirm the absence of any forms of participation in collaboration activities. If the registration body (election commission) establishes the inaccuracy of the information provided, this may be the basis for canceling the registration of such a candidate.

At first glance, this approach seems to be the least restrictive for the exercise of passive suffrage. However, the key question is which authority is going to establish the legal fact of the unreliability of the submitted information as a basis for canceling the candidate’s registration. If this is done by the court, which will guarantee adversariality, impartiality and respect for the rule of law, in fact, this approach will not differ significantly from the first (classical). If the executive or administrative body does this, such wide discretion can lead to abuses and doubts about its political impartiality. At the same time, the non-application of the institution of cancellation of registration for unreliability of the submitted information may turn such a requirement into a fiction and will not contribute to the prevention of collaborators from elected positions and the exercise of public functions. In addition, regardless of the legal consequences, such an approach presumes a situation where a person indicates their involvement in collaborative activities and legally stands for election, which can cause outrage among citizens and lead to overreaction or polarization of society, which is a critical threat to the state in the post-war period.

Draft Law No.9081 and Alternative Verions 

Draft Law No.9081 and its alternative versions (No.9081-1 and No.9081-2) relate to the restriction of the participation of persons associated with banned political parties in the governance of the state. 

OPORA has already published our position on these draft laws and compared their content. The key idea of all three bills is to establish, for 10 years after the end of martial law, a ban on holding elected positions (and in bill No. 9081-1, also appointed positions like a member of the government or civil service of category "A") to citizens who held public positions (usually deputies of parliament or elected positions in local self-government bodies, although the list differs depending on the bill) from the parties whose activities were banned. It is proposed that the Central Election Commission should establish such a fact and publish a list of relevant persons.

OPORA declared its full support for countering russian aggression and persons who contribute to it. However, for this purpose, the Criminal Code of Ukraine has long had the appropriate merits for criminal offense (e.g., Art. 111 “High Treason”), and the recent additional highlights (Art. 111-1 “Collaborative Activities” and Art. 111-2 “Complicity with the Aggressor State”). Therefore, it is paramount to use mechanisms of individual responsibility, with further restriction in the implementation of passive suffrage and in the right to participate in the management of public affairs. The application of the restriction directly on the grounds of the law (or rather, as an electoral qualification) means the adherence (affiliation) of a person to a banned political party which activities pose a threat to national security and other democratic values (as mentioned in Art. 37 of the Constitution of Ukraine, Art. 5 of the Law of Ukraine "On Political Parties in Ukraine"), and therefore requires additional justification in terms of the criteria for such adherence. Otherwise, the approach to which restrictions in the exercise of passive suffrage and the right to participate in the management of state affairs are applied to a certain group risks being recognized as discriminatory and incompliant with the Constitution. 

It is also worth recalling the experience of challenging the restrictions introduced by the Law of Ukraine “On Government Cleansing.” Thus, in the case “Polyakh and Others v. Ukraine”, the European Court of Human Rights found violations of the rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. In addition, the Venice Commission, in its Interim Opinion No. 788/2014, expressed criticism of this Law and stated that “lustration should be based on the principle of individual, rather than collective, responsibility”. Establishing such violations of international human rights standards may become an obstacle to Ukraine's integration into the European Union.

Opinion of the Venice Commission on Draft Law No.9081

In general, the Venice Commission and ODIHR, taking into account the exceptional historical situation in which Ukraine finds itself, believe that this draft law is legitimately aimed at protecting the state’s independence, democratic order, and national security. However, it is applied automatically (on the sole basis of party membership and the fact that the person held an elected office) and indiscriminately — without distinguishing between party members who are actively involved in illegal actions attributed to a political party and, if elected, would pose a threat to the democratic order and national security, and those who performed “neutral” functions. International experts draw attention to the fact that the restrictions cover a large group of persons and impose collective responsibility on them for the illegal actions of the party to which they belonged, without considering each case separately, which “contradicts the principle of proportionality and can lead to arbitrary decisions.”

To avoid a negative balance between the legitimate goal of protecting the democratic order and national security of the state and the need to ensure equal conditions for political competition without disproportionate impact on the vital role played by all participants in political life in ensuring pluralism, and without threats to the representative nature of the legislature, the Venice Commission and ODIHR recommend the following:

  • to introduce “appropriate criteria and effective individual assessment”, on the basis of which restrictions of rights will be applied only to those party representatives who, by their actions and statements, posed a threat to national security and democracy and actively contributed to the illegal goals of banned parties, and therefore pose a threat in case of re-election;
  • after the abolition of martial law, to reduce to "as little as possible" the total duration of the restrictions with the application of longer terms only to those persons who pose the most serious threat to national security and democratic order, and on the basis of court decisions on their individual responsibility;
  • to provide persons subject to restrictions with access to procedural guarantees during the consideration of cases (including ensuring proper substantiation of decisions) and the opportunity to challenge the restriction of their rights through judicial review of the decision to deprive them of the right to be elected.

It must be highlighted that some of these recommendations are general in nature, and leave Ukraine with some discretion on how to address the shortcomings of the draft law. 

Post-Conflict International Experience

It should be borne in mind that since the Second World War, Ukraine is the first country against which unprovoked armed aggression of this magnitude has been deployed. Therefore, it is quite difficult to trace any relevant experience that can be borrowed. 

If we take into account some European countries that were subjected to German occupation during the Second World War (in particular, France, the Netherlands, or Belgium), the practice of consolidating the punishment in the form of deprivation of political rights for collaborationism existed there. Currently, such sanctions are provided  in the criminal law of certain Eastern European states (such as Poland). 

On a separate note, the experience of states should be mentioned where armed conflicts were taking place on their territories. In particular, in Bosnia and Herzegovina, the rules of procedure of the Provisional Election Commission provided for a ban on running for and holding public office for anyone serving a sentence imposed by the International Tribunal for the Former Yugoslavia, or who was charged by that Tribunal. Although this practice is unconstitutional, the Provisional Election Commission and the relevant Complaints and Appeals Subcommittee withdrew candidates from elections in response to violations of the regulations.

On the other hand, passive suffrage is guaranteed in Croatia, but in some cases there is a prohibition to run as a candidate, which also depends on the type of elections and the law governing their conduct. If the relevant law does not establish restrictions in the presidential election, then a person cannot be a parliamentary candidate: (a) sentenced to unconditional punishment in the form of imprisonment for more than 6 months on the basis of a court decision that has entered into full force, if at the time of the entry into force of the decision to hold the election, the punishment is already being executed or will be executed, and (b) the rehabilitation period of which, under a particular law, has not expired at the time of the entry into force of the law on holding the election and which was convicted on the basis of a court decision that has entered into full force for criminal offenses provided for by law.

Legal regulation and practice of applying the penalty of deprivation of the right to hold certain positions in Ukraine

Ukrainian legislation provides for a special sanction in the form of deprivation of the right to hold certain positions or engage in certain activities, which, in accordance with Art. 55 of the Criminal Code of Ukraine may be imposed as a primary punishment for a term of 2 to 5 years or as an additional punishment for a term of 1 to 3 years (for example, see Art. 110-2 ("Financing of actions committed with the aim of forcibly changing or overthrowing the constitutional order or seizing state power, changing the boundaries of the territory or state border of Ukraine") of the Criminal Code 

However, for committing criminal offenses against the foundations of national security of Ukraine provided for in Articles 111-1 ("Collaborationism"), 111-2 ("Aiding the aggressor state") of the Criminal Code of Ukraine, deprivation of the right to hold certain positions or engage in certain activities as the main or additional punishment is imposed for a term of 10 to 15 years.

In addition, Art. 109–111, 112-114-2 of the Criminal Code of Ukraine, which are no less socially dangerous, do not provide for such a sanction as deprivation of the right to hold certain positions or engage in certain activities. Although, according to the Criminal Code of Ukraine, such an additional punishment may be imposed even in cases where it is not provided for in the sanction of the article or part of the article of the Special Part, this may lead to unequal judicial practice and the spread of cases of non-application of punishment to the perpetrators commensurate with their actions.

Moral Electoral Qualification Or Criminal Record Qualification: Legal Regulation, Standards And Challenges

A modification of this qualification can be used to prevent the participation in the electoral process of persons who have been prosecuted for criminal offenses against the foundations of national security.

According to Part 3 of Art. 76 of the Constitution of Ukraine, a citizen who has a criminal record for committing an intentional crime cannot be nominated as a candidate and elected as a People's Deputy of Ukraine, if this criminal record has not been expunged and removed in accordance with the procedure established by law. 

The OSCE/ODIHR mission has repeatedly alerted that the rights of candidates are still subject to disproportionate restrictions for those who had a criminal record in the past, regardless of the gravity of the crime committed. Experts recommended adhering to the recommendations stipulated in Section 1.1.d of the Code of Good Practice in Electoral Matters. According to it, “deprivation of the right to vote and to be elected must be based on a criminal conviction for a serious offence”. However, this approach of the Venice Commission does not take into account the settings for combatting Russia's full-scale aggression and post-conflict Ukrainian reality. Given the established scope of the sanction, not all criminal offences against the foundations of national security are serious — in particular, we are talking about parts 2, 3 of Art. 17, Para 1 of Art. 17, Para 1 of Art. 110-2, parts 1, 2, 3, 4 of Art. 1, Part 1 of Art. 111-2 of the Criminal Code of Ukraine. Thus, according to the standards of the Venice Commission, persons who committed such anti-state criminal offenses and were prosecuted should not be restricted in passive electoral rights in parliamentary elections. This gives rise to discussions about the relevance of certain international standards to national classifications of criminal offenses.

Unlike parliamentary elections, the Electoral Code of Ukraine restricts passive electoral rights for candidates in local elections, depending on the severity of the criminal offense. In particular, a person with a prior conviction, not expunged or not removed in accordance with the procedure established by law, for committing a grave or especially grave crime, a criminal offense against the electoral rights of citizens, a corruption criminal offense, a criminal offense against the foundations of national security of Ukraine, provided for in Article 111-1 of the Criminal Code of Ukraine ("Collaborationism"), cannot stand as a candidate. Given that in local elections, the risks of nominating persons who have criminal convictions for offenses against the foundations of national security are more serious, there is an objective need not to limit the list of offenses against the foundations of national security of Ukraine to collaborative activities only.

It should also be highlighted that this restriction on passive electoral right does not apply until the guilty court verdict enters into force. Given the significant duration of the criminal process, even at its judicial stages, it should be borne in mind that in the next elections after the termination (abolition) of martial law, such persons are likely not yet to be deprived of passive electoral rights on these grounds. This leads to a discussion about criminal procedural measures that will restrict the passive electoral rights of persons suspected of committing criminal offenses against the foundations of national security or international crimes that have no statute of limitations 

Ban On A Political Party: A Tool For Restricting Political Rights And The Implications

After February 24, 2022, the judicial practice has become more prevalent of banning political parties whose activities had the following objectives: 1) to eliminate the independence of Ukraine; 2) to change the constitutional order by force; 3) to violate the sovereignty and territorial integrity of Ukraine; 4) to undermine the security of the state; 5) to illegally seize state power; 6) to share propaganda of war, violence, incitement to inter-ethnic, racial or religious hatred; 7) to encroache on human rights and freedoms; 8) to encroache on the health of the population; 9) to share propaganda of communist and/or national-socialist (Nazi) totalitarian regimes and their symbols. This possibility is provided for in Art. 5 of the Law of Ukraine "On Political Parties in Ukraine"

At the same time, the consequences of such a ban for MPs elected to representative bodies (parliament and local councils) on the lists of banned parties remained unresolved.

Conclusions and Recommendations

Ukraine faces a difficult challenge when, in the context of brutal full-scale aggression based on an ideology that casts doubt on the very existence of the Ukrainian state and nation, the country is trying to take rapid steps towards integration into the European Union and at the same time, adhere to the standards supported by democratic countries and the civilized world. Since russia has long tried to destroy the state sovereignty of our state through the polarization of society and illegal proxies (the so-called "people's republics"), it will be extremely difficult to find a reasonable balance between compliance with legal standards on restrictions of human rights and countering threats to national security. However, an important feature that has always distinguished Ukraine from its aggressive neighbor is that our state respects the rule of law, democracy, and human rights as the basic values of the civilized world.

To effectively counter the aggressor, the state must generate signals for Ukrainian citizens living in the aggressor-controlled and temporarily occupied territories. On the one hand, we must look for a model of restriction of political rights that will offset the influence of the aggressor state. On the other hand, in the interests of the reintegration of TOTs, the state should comprehensively consider restrictive measures that have an appropriate legal basis, do not allow double interpretations, and are suitable for impartial application. Therefore,

  • such restrictions must comply with the principle of proportionality and rely on individual conviction and establishment of guilt for a serious offense or recognition of a person as incapacitated;
  • the state should justify why conviction for an offense of a particular type or severity requires restriction of voting rights;
  • the body to establish restrictions must have sufficient guarantees of independence and impartiality, be resilient to political influence, and not have unlimited discretion in establishing the factual circumstances, primarily such a body is a court;
  • it is necessary to ensure a reasonable period of validity of restrictions on voting rights, which usually should not exceed 10 years;
  • the grounds (criteria) and procedures for such restriction shall comply with the principle of legal certainty, in particular, it shall be established by duly promulgated law;
  • the law establishing liability shall not have retroactive effect; 
  • the right to a defence must be guaranteed;
  • other key standards of criminal prosecution must be met;
  • the path of improving criminal law and the law of criminal procedure is more consistent and less risky for democratic standards by not allowing individuals involved in offenses against the foundations of national security to take public office.