Russian military aggression has significantly influenced the election administration in Donetsk and Luhansk oblasts and deprived more than 4 million Ukrainian citizens of their right to freely choose the President, and more than 3 million citizens of their right to choose MPs of Ukraine in 2014. According to the experts, a number of challenges are expected to emerge in Donbas local elections, which should be timely and efficiently resolved: election process in Donetsk and Luhansk oblast councils, voting process in cities, towns, and villages close to the front line zone, realization of voting rights of IDPs, regulation of electoral issues on territories where military and civilian administrations (MCA) are functioning, and early local elections in the certain raions of Donetsk and Luhansk oblasts, where special local self-government procedures were established. Experts emphasize that it's urgent to improve the effective laws on local elections and MCA, and establish a special mechanism allowing to ascertain at any stage of the election process that it's impossible to hold the vote in the certain communities, and regulate participation of the UAF and SBU in enforcement of the rule of law during the election process, as well as guarding election commissions and electoral documents being transported during local elections.

Election Process in Donetsk and Luhansk oblasts: Key Issues and Possible Solutions

In order to find solutions of topical issues, a public discussion titled "Election safety and probability of holding elections in Donetsk and Luhansk oblasts" was held in Kyiv on 29 April. Event was organized by a group of NGOs comprising Civil Network OPORA, Ukrainian Center for Independent Political Research, Election Law Institute, Regional Press Development Institute, and Internews-Ukraine, supported by IFES and USAID. MPs of Ukraine, representatives of the Administration of the President of Ukraine, the Ministry of Internal Affairs and the Ministry of Information Policy, representatives of ;local authorities in Donetsk oblast, leading election law experts, representatives of political parties and non-governmental organizations have participated in the discussion.  


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First issue – is conduct of elections to Donetsk and Luhansk councils. 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). In Donetsk oblast, this percentage reaches almost 46% (1 million 512 thousand 681 of 3 million 327 thousand 70 persons).

Possible solution-1: to extend mandates of Donetsk and Luhansk military and civilian administrations until the anti-terrorist operation ends and these territories are liberated from occupation, or till the period established by the Law expires. Such approach will require improvement of the procedure and authorities of military and civilian administrations in accordance with the Constitution of Ukraine and the Law of Ukraine on Local Self-Government.

Possible solution-2: to hold election to Donetsk and Luhansk oblast on the territories controlled by Ukrainian Government and ascertain that it's impossible to hold the vote on temporarily occupied territories. In such case, the number of oblast councilors shall be determined by the factual number of voters which can be included in voter lists on territories controlled by the government, and occupied territories are either not taken into account or are nominally counted. In addition, a special law should be passed establishing that as soon as the government restores its control over temporarily occupied territories, authority of the corresponding oblast councils is terminated and early election is held on the whole territory of Donetsk and Luhansk oblasts. As an alternative solution, it's possible to consider possibility that oblast councils could take decisions by a majority of factually elected councilors.

The second issue – is a need to secure realization of voting rights of internally displaced persons in local elections. 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 are registered in Ukraine. Almost 50% of internal migrants are on Ukrainian state-controlled territories of Donetsk and Lugansk oblasts. According to the Guiding Principles on Internal Displacement (Economic and Social Council, UN Human Rights Committee 1998) is a fundamental international document prohibiting discrimination of internally displaced persons and establishing that IPDs shall enjoy the same rights and freedoms as do other persons in their country, including the right to vote and participate in state and citizen affairs at all levels. At the same time, Ukrainian legislation prohibits changing voting location without changing the voting address in local elections. Thus, internally displaced persons cannot enjoy their right to vote in local elections, even on the territories of Donetsk and Luhansk oblasts controlled by Ukraine.

Possible solution-1 with a transition period: to ensure by legislation that IDPs can change the election address on the basis of their registration address, according to the Law of Ukraine on Ensuring the Rights and Freedoms of Internally Displaced Persons, by submitting a written application personally to a State Voter Register maintenance body Besides that, it would be reasonable to establish a requirement that an IDP shall reside in the corresponding community during a certain period before the voting day (for example, six months).

Possible solution-2: to establish by legislation that IDPs can temporarily change their voting location during elections to Donetsk and Luhansk local councils in such regions, if such elections are held. In such case, the election address shall remain the same. This option may be considered as a transitional period in the process of ensuring the voting rights of this group of citizens.

Thirdly, it's essential to harmonize the Law on the Military and Civil Administrations (MCA) with the Constitution of Ukraine and other Laws of Ukraine, including an opportunity to exercise a citizen's constitutional right to freely elect local self-government bodies The Law of Ukraine on Military and Civil Administrations (expires on 2/27/2016) does not regulate the possibility of holding local elections if MCAs are formed in Donetsk and Luhansk oblasts. If MCAs are formed in cities, villages, and settlements, they would be expected to stop functioning after new councils are elected. The Law does not give a clear answer on the possibility of holding elections to the corresponding councils at oblast and raion levels. In particular, it is stated that if oblast and raion MCAs are created to ensure public order and safety, they shall stop functioning as soon as the anti-terrorist operation finishes.

The fourth issue – is a special order of local self-governance in particular districts of Donetsk and Luhansk oblasts, which were ascertained by a special resolution of the Verkhovna Rada of Ukraine as temporarily occupied and not controlled by Ukrainian Government. It is expected, however, that such special procedure of local self-governance shall enter into operation only after early local elections are held on these territories in accordance with the Constitution of Ukraine and other laws securing adherence to 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.

Fifthly, elections on territories close to the front line zone in Donetsk and Luhansk oblasts should also be regulated. The factual line of demarcation in Donetsk and Luhansk oblasts includes both settlements with the special order of local self-governance and cities, towns, and villages with regular local self-governance. Demarcation line comprises more than 80 inhabited settlements close to the front line zone, half of which belongs to state-controlled territories. This fact must be taken into consideration when planning the electoral process in two problem regions.

Possible solution: to implement a special mechanism for ascertaining impossibility to hold the vote in individual cities, villages, towns, and regions at all stages of voting process. 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.

Election Process in Donetsk and Luhansk oblasts: Key Issues and Possible Solutions

                                                                                                                                                                                                                                

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