On December 4, the Higher Administrative Court of Ukraine has passed a decision to recognize the Central Election Commission as inactive, and oblige it to remove the candidate Viktor Romaniuk from AUU Batkivshchyna in district #94 from registration. The decision is not appealable.
We remind that the Higher Administrative Court of Ukraine held a sitting because Kyiv Administrative Court of Appeal has passed decision on removal of Viktor Romaniuk from the registration on December 1.
Central Election Commission may pass the decision to cancel registration of an MP candidate for the certain reasons defined by the article 61(4) of the Law of Ukraine on Elections of People's Deputies of Ukraine. One of such reasons to deprive an individual, nominated as a candidate for MP, of the right to be chosen as MP is non-compliance with the durational residency requirement, established by the Article 9. Citizens of Ukraine, residing in Ukraine for the last five years, may be elected as Members of Parliament.
OPORA is convinced that the fact that the CEC is not obliged but only has the right to verify candidate's duration of residency in Ukraine – is another gap in the electoral legislation. According to the Article 60(1.7), the CEC shall refuse to register MP candidates, if there are circumstances which deprive such individuals of the right to be chosen as MP of Ukraine, including compliance with durational residency requirement. However, as long as the CEC is not obliged to verify the information in documents, it had passed Resolution #226 and registered Romaniuk Viktor Mykolaiovych (born on August 28, 1975) as MP candidate in single-mandate district #94, based on registration of the place of residence.
A citizen Volodymyr Shpakovych (nominated in district #95 from the Our Ukraine party in 2012) had submitted an application to the CEC, claiming that Viktor Romaniuk didn't comply with durational residency requirement. In other words, during the last five years he lived abroad for the certain period. According to the Article 61(4.8) of the Law of Ukraine on Elections of People's Deputies of Ukraine, the Central Election Commission is obliged to cancel registration of a candidate if there is information that he doesn't comply with durational residency requirement. However, the CEC refused to pass such decision. Therefore, the plaintiff appealed against the inaction of the CEC. The limitation period (five days) was calculated from the next day after the plaintiff received the CEC's answer, but not from the day the CEC passed Resolution #226 of October 26, 2013.
First instance court and the court of appeal have determined that the candidate doesn't comply with durational residency requirement. However, the courts have chosen different ways to protect violated rights and interests. While the first instance court decided to cancel the Resolution of the CEC #226 of October 26, 2013 concerning the registration of Viktor Romaniuk as a candidate for MP of Ukraine, the court of appeal obliged the Central Election Commission to cancel the very same Resolution.
According to the Article 3 of the Law of Ukraine on Freedom of Movement and Free Choice of Residence in Ukraine, the place of residence – is a territory, where the person lives for more than six month a year. That is 183 days. The court has ascertained that Viktor Romaniuk wasn't living in Ukraine for 270 days (since December 15, 2012) on the moment of registration as a candidate for MP of Ukraine.