INTRODUCTION
On 16 March 2014, on the territory of the Autonomous Republic of Crimea (hereinafter - ARC) and the city of Sevastopol, Crimean referendum on the status of ARC was held. The referendum was conducted with no legislative base for its conduction; democratic electoral standards and the Constitution of Ukraine were violated. Besides that, the Constitutional Court of Ukraine has ruled that the Resolution of the Verkhovna Rada of the ARC on the Conduction of Crimean Referendum as of 6 March 2014 was unconstitutional.
Nevertheless, the Crimean Referendum was held, and most of its participants supported the annexation of the ARC to the Russian Federation on the rights of its subject. On 18 March 2014, the Russian Federation and the Republic of Crimea have concluded an agreement on inclusion of the Republic of Crimea to the Russian Federation and creation of new subjects in the Russian Federation. The Federation Council has ratified this agreement on Friday, March 21, 2014. In result of the abovementioned events, decision on redeployment of subdivisions of Armed Forces of Ukraine in the ARC, and active measures of Russian Federation's authorities concerning the transformation of the ARC into subject of the Federation, territory of the ARC became out of Ukraine's control.
Special election of the President of Ukraine will be held on May 25, 2014. As long as territories of the ARC and the city of Sevastopol are still considered to be Ukraine's but occupied, organization and conduct of Presidential election (as well as any other elections on the territory of the ARC and in the city of Sevastopol on the basis of Ukrainian legislation) will be problematic.
This document is prepared by Denys Kovryzhenko, Legal Advisor of the IFES-Ukraine. It is mainly focused on issues of organization and conduct of election on occupied territories, and organization of the election process for forcibly displaced persons, on the basis of quite various approaches to regulation of such issues used by Azerbaijan, Georgia, Moldova, Kosovo, and Serbia.
1. Problems of holding national elections on the territory of the Autonomous Republic of Crimea
The application of the Law on Elections of the President of Ukraine and other Ukrainian regulation on the territory of the Autonomous Republic of Crimea, which secure conduction of the elections, will become virtually impossible after the ARC is in the Russian Federation.
Bodies and officials of the ARC and city of Sevastopol don't recognize the jurisdiction of courts and other Ukrainian public authorities on their territories. Therefore, it's impossible: to create district and precinct election commissions in the ARC and the city of Sevastopol; to secure functioning of State Voter Register maintenance bodies and compilation of voter lists; to receive and transfer electoral documentation to or from the ARC and the city of Sevastopol; and to resolve electoral disputes according to the procedure established by the Code of Administrative Procedure of Ukraine and the corresponding electoral legislation.
However, even if there was no such problems, the organization and conduct of elections in accordance with international standards would be hardly possible during the presence of Armed Forces of Russian Federation and so-called "Crimean self-defense".
Nevertheless, as long as the ARC is a part of Ukrainian territory, and many Ukrainian citizens live in it, they should have an opportunity to vote during Presidential election and future Parliamentary elections. Thus, in order to secure electoral rights of citizens living in the ARC and the city of Sevastopol, the laws regulating national elections should be substantially amended.
2. Organization of the elections on occupied territories: experiences of the certain countries and their possible consideration in Ukraine
Different countries approach the problem of voting on occupied territories differently:
- elections are not organized on occupied territories at all (Georgia);
- elections are not conducted on occupied territories, but forcibly displaced persons are included in special voter lists at regular or special polling stations and vote regularly; their votes are counted as votes of citizens who are registered in one of districts, situated on occupied territories (Azerbaijan);
- to secure voting rights of citizens residing on occupied territories, special polling stations are created on adjacent territories (or voters residing on occupied territories are included in "additional" voter lists at existing polling stations), where they vote during the election day (Moldova);
- polling stations are created on occupied territories for voting; electoral documentation is received and transferred with representatives of international organizations participating; vote count is conducted after electoral documentation is transported in a centralized manner (voting during Serbian national elections in Serbian enclaves in Kosovo).
- voters can change the place of voting or vote by mail (voting for refugees and persons who reside outside Kosovo territory or in Serbian enclaves in Kosovo).
All these approaches have their pluses and minuses, and result from historical and political peculiarities of the certain countries or occupied territories.
When determining possibilities for using any of this approaches on Ukrainian territory, we should take into consideration that:
- voting by mail in the ARC would require additional budget allocations for the creation of ballot papers and envelopes to send them, conduction of activities to inform voters in the ARC, securing safety of envelopes with ballot papers and other electoral documentation when crossing an administrative border of the ARC, securing the secrecy of voting during voting and processing of ballot papers, determination of places to process ballot papers, and introduction of personal voting;
- the decision to refuse from holding elections in the ARC (like in Georgia) has it's pluses (sparing budget funds, no need to conduct informational activities, no distortion of election results due to abuses during the voting etc.), but it has it's minuses too (vacant seats in the Parliament, complicated formation of parliamentary majority and the government, no representation of the ARC in the parliament, deepening the "alienation" of the ARC from Ukraine etc);
- despite the creation of special polling stations for voting outside the territory of the ARC (or their inclusion into voter lists on existing PECs in regions, adjacent to the ARC) may secure participation in national elections for voters living on the ARC territory, it requires a number of additional measures: to prevent voters in ARC from repeated voting at different polling stations; to reconsider and simplify the procedure of changing the voting location without changing the voting address; to change the procedure of compiling and updating voter lists, appealing against decisions, actions or inaction pertaining to the election process; to secure safety of the voters transferred from the ARC to the corresponding polling stations and back to the ARC; to prevent provocateurs from the ARC entering adjacent territories as voters etc. Besides that, inclusion of voters from the ARC to polling stations in adjacent regions can cause the same problems as would cause inclusion of voters registered in overseas polling stations to all single-mandate election districts (according to the Law of Ukraine on the Elections of Deputies of Ukraine as of 2011);
- creation of polling stations in the ARC on the basis of approach used by Serbia is definitely impossible in such situation.
Thus, when analyzing possibilities of using foreign experience in organization of voting on occupied territories, we should take into consideration the abovementioned threats, as well as pluses and minuses of the approaches given below.
3. Organization of the voting on occupied territories and for forcibly displaced persons in the certain countries
3.1 Azerbaijan
Nagorno-Karabakh Republic (NKR), which territory is internationally recognized as part of Azerbaijan, is de facto independent but unrecognized state. After the Karabakh conflict between Armenia and unrecognized NKR on one side and Azerbaijan on the other (1991-1994), the Bishkek Ceasefire Protocol was singed on May 5, 1994. In 1987-1994, most Azerbaijanis left NKR and adjacent territories, and on Azerbaijani territory appeared a group of forcibly displaced 570,000 individuals.
In 2001, 250,00 forcibly displaced persons had the right to vote during national elections in Azerbaijan. During 2001 Parliamentary elections, 9 single-member districts were fully or partially situated on territory of the NKR for the election of Members to Azerbaijani Parliament. Despite the election process wasn't organized in these districts, votes of forcibly displaced persons were considered to be given from one of these districts, no matter where they temporarily resided in Azerbaijan. Voter lists for forcibly displaced persons during 2001 Parliamentary elections were compiled on the basis of information, provided by the Ministry of Refugee and Resettlement, and executive bodies, evacuated from the Nagorno-Karabakh[1]. In 2005, the voting of forcibly displaced persons during Parliamentary elections was organized according to the procedure, used in 2001: DECs of 9 occupied districts were situated within relatively compact residence area of forcibly displaced persons; the CEC created 487 PECs to organize the voting for these persons; the votes of forcibly displaced persons were considered to be given from one of the corresponding districts in the NKR. Simultaneously, due to the constant migration of displaced persons within Azerbaijani territory, many of them didn't manage to use their right to vote because the corresponding government bodies used out of date information regarding their quantity and the place of temporary residence when compiling voter lists[2]. During 2010 Parliamentary elections, the voting of forcibly displaced persons was organized according to regulations used in 2001 and 2005. Besides substantial inaccuracies in voter lists and artificial "association" of displaced persons to districts created in 1990-ies, while most of such people hadn't lived there for more than 20 years, if we come to drawbacks of the organization of voting for displaced persons, were difficulties in election campaigning faced by candidates in these nominal districts, because electorate of these districts was scattered all over the Azerbaijani territory (except in Baku).
3.2. Georgia
In 1990 and 1992, elections in Georgia were organized within the territory of Georgian SSR. After the Georgian-Abkhazian conflict in 1992-1993, the conduction of elections on Abkhazian territory became impossible, and the Parliament extended the authority of 12 MPs, elected in districts on Abkhazian territory, till settlement of the situation. In 2004, this regulation was canceled, and Members of Georgian Parliament weren't elected on Abkhazian territory anymore.
After the war with Russian Federation in 2008, Georgian Parliament has adopted the Law on Occupied Territories on 28 October 2008, [3], which determined the status of territories, occupied in result of military aggression of Russian Federation. According to this Law, territories determined by the Ceasefire Agreement concluded on 12 August 2008, particularly the Autonomous Republic of Abkhazia, Tskhinvali region (territory of the former South Ossetian Autonomous Region), and a part of territorial internal waters (offshore and natural resources) of Black Sea water area alongside of Georgian border with the Russian Federation, were considered to be occupied. The Law on Occupied Territories should have been terminated after occupied territories were returned to the jurisdiction of Georgia. According to the Article 8 of this Law, any bodies and officials elected or appointed on occupied territories with violation of Georgian legislation were illegitimate, and the state of emergency was announced on occupied territories, which rendered impossible any elections on that territories[4]. 2012 elections to Georgian Parliament were not conducted on the territory of South Ossetia and Abkhazia.
Almost 207,000 people were forcibly displaced due to the military activities on Georgian territory in 2012[5]. According to the Georgian Election Code, such people were included to general voter lists by the CEC according to the place of their temporary residence (Article 9 of the Election Code) on the basis of information, provided by the Ministry of Internally Displaced Persons from the Occupied Territories, Accommodation and Refugees of Georgia, and territorial bodies of this Ministry.[6]. To participate in the voting process, displaced persons shall show identification document and IDP Status Card (Article 57 of Georgian Election Code). Despite elections are not organized on the territory of South Ossetia and Abkhazia, the CEC in Georgia didn't repeal the decision on organization and conduct of elections on the corresponding territories, which have been passed since 1992. In fact, there are election commissions which should have organized elections on these territories, but their membership was never formed. According to Georgian legislation, citizens who live on occupied territories have the right to participate in nationwide elections at polling stations within districts, adjacent to occupied territories.
3.3 Kosovo
Every citizen of Kosovo who is 18 or older has the right to vote during elections to the Assembly of Kosovo if he/she permanently resided in Kosovo as of 1 January 1998, and if they obtained refugee status as of 1 January 1995, and left the territory of Kosovo before 1 January 1998.
To vote by mail, a voter should get an application, which can be downloaded directly form website of the CEC of the Republic of Kosovo, sent by a special postal service, received directly at Embassy of the Republic of Kosovo or at special application issuance sites outside of Kosovo.
The signed application and other documents required by the law (documents to verify person's identity and Kosovo citizenship etc.) should be sent to address of the CEC of the Republic of Kosovo by mail or fax before the due date. After that, in case the application is approved, the voter can download ballot paper from web-site of the CEC or receive it by mail.
Completed ballot should be sent back to the CEC in a package with two folders: the first with ballot and the second with copy of document proving identity of the voter. The package is divided in order to secure he secrecy of voting. During the vote count, members of the CEC open folders with copy of document proving identity of the voter, and make the corresponding in the voter lists, certifying the fact that voters participated in the voting process (if they notice that the person voted at polling station, the sent ballot is not counted during determination of voting results). After voter identification is finished, packages with ballots are gathered in stacks, opened and then the CEC counts votes[7].
If the voters live in Kosovo but cannot vote at polling station where they were registered due to the certain reasons, they can change the polling station during an established period before the election day directly through the website of the CEC or at the polling station (if the place of voting is changed within the same municipality). The voters who cannot vote in the polling station due to their health condition have the right to file the CEC an appeal for securing their right to vote at the place of stay, to which they should attach the document proving their inability to vote at polling station due to the health condition[8]. The possibility to vote by mail and to change the place of voting actually helps securing the participation of displaced persons, refugees, and individuals living in Serbian enclaves in Kosovo.
3.4 Moldova
On 2 September 1990, the second Extraordinary congress of People's Deputies of all levels in Tiraspol proclaimed the formation of a sovereign state of Pridnestrovian Moldavian Soviet Socialist Republic as a soviet republic in the USSR. On 27 August 1991, the Parliament of Moldavian SSR has adopted the Law #691 on Declaration on Independence, and on 5 November 1991 the PMSSR was renamed into Pridnestrovian Moldavian Republic (PMR) due to the collapse of the USSR. Simultaneously, Moldavian government bodies didn't manage to secure proper conditions for organization of national elections in Moldova on the territory of PMR. On 17 February 1994, Moldavian President passed a Decree, according to which Moldavian citizens who lived on the territory of the PMR were allowed to vote at specially created polling stations, situated on territories adjacent to the PMR and under authority of Moldavian administration.
This very Decree was applied during Parliamentary elections in 1994, 1998, 2001, 2005, 2009 and 2010, as well as during 1996 Presidential elections, when Moldavian President was elected on national level. Generally, different number of voters living in the PMR participated in these elections: in 1994 – 7,664 persons, in 1998 – 3,776 persons, in 2001 – 4,298 persons, in 2005 – 8,206 persons[9], in 2009 р. – 5,674 persons, in 2010 – 7,704 persons.
The voting, organized for people living on territory of the PMR, was usually problematic: the number of specially created polling stations was insufficient (11 in 2009, [10] 21 in 2010) and didn't secure due organization of voting process; PMR government bodies intimidated and pursued citizens who decided to participate in the voting process (they removed car number plates, deprived of driver’s license, customs and border services thoroughly inspected vehicles and luggage), blocked roads on the border between the PMR and Moldova etc.[11].
As long as organization of the election in PMR was impossible, the CEC created 35, but not 37 DECs during parliamentary elections. Voters from the PMR were included in voter lists (so-called additional voter lists) during the voting day only on those polling stations, which were used to organize their voting (during special Parliamentary elections in 2010, 4 of 21 such polling stations organized the voting for PMR citizens only, while other polling stations accepted both voters from the PMR who were included in additional voter lists, and voters included in general list of voters)[12].
3.5. Serbia
In result of the war in Kosovo and military intervention of NATO, a number of Serbian enclaves appeared on the territory of Kosovo, with predominantly Albanian population. The Northern part of Kosovo is not among enclaves. Kosovo's ethnic Serbian population lives compactly on this territory, which is administered by three Serbian communities in this part of Kosovo. The voting procedure for national elections in Serbia is determined by special acts of the Republican Election Commission (REC) of Sebria. In particular, on February 2014, the REC has approved Instructions for the conduction of the elections for National Assembly MPs called for 16 March 2014 on the territory of the Autonomous Province of Kosovo and Metohija[13]. According to these instructions, Parliamentary elections should be administered by two levels of election commissions - REC and election commissions, which should consist of 3 members each, and must be formed by applications from factions, created in Serbian Parliament. In order to help election committees to establish voting results and transfer electoral documents to the REC, the Instruction provides the creation of special working groups of the REC. Precinct commissions are loaded with direct responsibilities for organization of voting process, and should be created with consideration of safety for voting organization. The RVK is responsible for transportation of election documentation and ballot papers to electoral committees, established in cities of Rashka and Vranie, which should be then transported by representatives of the OSCE to DECs. After the voting process, the DEC should pack unused and used ballot papers separately, and representatives of the OSCE - transfer them to cities of Rashka and Vranie, for further handover to representatives of the REC, responsible for the vote tabulation and compilation of the corresponding protocols. Registration of voters during 2014 elections was conducted on the basis of applications on inclusion into voter lists, filed to the Ministry of Justice.