A day before the deadline for official registration of candidates in local elections, Kyiv Administrative Court of Appeals took two totally opposite decisions concerning explanation of the CEC on impossibility to reject candidate registration if a local party cell fails to comply with gender quota requirements in election lists.

Decision of the Court voiding CEC's explanation is based on a standpoint that gender quota requirements are compulsory for all and must be applied to all legal relations in the election process including registration of candidates or their rejection. However, this very Court has ruled in its another decision that gender quota requirements are declarative because there are no sanctions established for local party cells not adhering to them.

After the Court has passed two opposite decisions on the same issue, the ambiguity of some provisions in the Law on Local Elections (adopted by the Parliament less than two months and signed by the President less than a month before elections started) became an even more acute problem. Besides that, a problem with unequal interpretation of gender quota regulations by territorial election commissions, which has emerged yet before the corresponding court decisions were taken, has also worsened.

OPORA is convinced that such high number of controversial electoral procedures exists in the Law of Ukraine on Local Elections only because Ukrainian Parliament traditionally fails to adhere to rules of procedure and other law-making standards. Thus, as long as the principle of legal stability wasn't observed, the new Law contains ambiguous regulations and procedures that could hardly be realized. For example, the list of grounds for refusal to register candidates doesn't include non-observance of gender quota regulations.

The Law, however, doesn't establish a separate procedure for specific situations when gender quota regulations cannot be observed (election list has only one candidate, for example). Thus, all the problems concerning implementation of the Law on Local Elections emerge from non-systematic law-making activities of the Parliament.

Taking into consideration the deadlines for filing appeals against court decisions, Explanation of the CEC (saying that non-observance of gender quota regulations cannot be a reason for refusal to register candidates) remains obligatory for territorial election commissions until the deadline for candidate registration (1 October). However, as long as there are different court decisions, controversial Law regulations, ambiguous Explanation of the CEC, we can expect that gender quota requirements will be applied unequally by different territorial election commissions. As a result, a high number of appeals can be filed against decisions of commissions concerning registration of candidates or refusal of registration for local elections.

According to OPORA, one decision passed by Kyiv Administrative Court of Appeals has conclusions which are not going to increase public trust to application of the law and elections as a whole. In particular, gender quota regulations established by the Law of Ukraine on Local Elections are declarative, according to this decision, as long as a law-maker, so to say, didn't establish any sanctions for their violation.

On one hand, such court decision questions the efficiency of the law containing declarative regulations. On the other hand, politicians have widely informed the public that gender quota in election lists is one of the most progressive regulations in the Law of Ukraine on Local Elections. Thus, when the CEC or the court says these regulations are declarative, or not obligatory, they whittle away expectations of the voters.

OPORA was surprised by the fact that both the CEC and the court based the corresponding decisions on explanation letter from the Head of the VRU Committee on Judicial Policy and Justice. However, according to the Law of Ukraine on Committees of the Verkhovna Rada of Ukraine, the very Committee but not the Head or an MP is eligible to provide explanations concerning application of the certain regulations within their authority. Thus, such explanations cannot be considered as official interpretation.

Taking into consideration all these facts, OPORA calls on the Chairman of the Verkhovna Rada of Ukraine, MPs of Ukraine, and VRU Committees, to strictly adhere to the rules of procedure and law-making standards, in order to prevent adoption of declarative or ambiguous law regulations and procedures in future. Besides that, the quality of laws in not only a legal problem, but also an issues of political responsibility.

Detailed description of the problem

On 30 September 2015, Kyiv Administrative Court of Appeals took completely opposite decisions on two administrative claims against paragraphs 3-4 of CEC explanations, approved by Resolution #362 of 9/23/2015 on application of the Law on Local Elections concerning minimum 30% of any gender in election lists during registration of candidates for oblast, raion, city, raion in city councils.

On of these claims was filed by a candidate for Lutsk City Mayor O. Zholnovych, candidate for member of Lutsk City Council A. Osipov, and Syla Liudei political party. The other claim was filed by Kyiv city cell of the Samopomich Union political party. Claimants demanded to consider as illegal and ban explanations of the CEC obliging territorial election commissions to register candidates despite local party cells nominating them have failed to observe gender quotas in election lists[1].

Court decisions which could solve the gender quota issue were adopted on the last day when registration documents could be submitted to territorial election commissions. In one case (filed by the Samopomich Union paty), Kyiv Administrative Court of Appeals banned paragraph 4 of CEC's explanation on impossibility to reject candidate registration if a local party cell fails to comply with gender quota requirements in election lists. In another case (filed by two candidates and the Syla Liudei party), however, the Court refused to ban the very same explanations of the CEC. Besides that, such opposite decisions were taken by judge panels comprising three judges, and two of them considered both cases.

Thus, Kyiv Administrative Court of Appeals has made equal application of the Law of Ukraine on Local Elections, particularly gender quota regulations, even more complicated. Territorial election commissions, however, must finish registration of candidates before 1 October 2015. Some aspects of court decisions and standpoints are going to increase neither public trust to the election process, nor the confidence in efficient application of laws.

According to the Article 4 (3) of the Law of Ukraine on Local Elections, there should be a minimum of 30 percent of each gender in election lists of candidates for members of local councils in multi-mandate election districts.

 At the same time, Article 46(1) of the Law establishes the list of grounds for refusal of candidate registration, which doesn't contain non-observance of gender quota regulations.

Standpoint of the CEC

The CEC has stated in its Explanation (Resolution #362 of 9/23/2015) that it's prohibited refuse to register candidates for council members in a multi-mandate constituency in election of People’s Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, as well as elections to oblast, raion, city, and raion in city councils on the grounds of non-compliance with provision of the Law on gender quotas in election lists. This explanation of the CEC is based on the fact that Article 46(1) of the Law doesn't establish non-observance of gender quota requirements as a basis for refusal to register candidates for village, settlement, or city heads as well as candidates for village or settlement headmen nominated in local elections. Besides that, it is emphasized in Paragraph 3 of the Explanations that Article 46 (1) of the Law establishes an exhaustive list of reason for refusing to register candidates.

We would like to remind that according to Article 24 (2.1), Explanations on application of the Law of Ukraine on Local Elections passed by the Central Election Commission are obligatory for all electoral subjects, as well as institutions, enterprises, organizations, state authorities, government bodies of the Autonomous Republic of Crimea and local self-government bodies, public officials and civil servants.

The claimants, however, insisted that gender quota regulations established by the Law of Ukraine on Local Elections are obligatory for all electoral subjects, including the CEC.

Decision of Kyiv Administrative Court of Appeals

  1. Decision on the claim filed by Samopomich Union party (case #875/36/15), passed by judicial panel comprising chief judge N.E Starova and judges I.Ye. Miezientseva, Ye.V. Chaku, rules:
  2. Kyiv Administrative Court of Appeals has passed the following decision on the claim filed by Syla Liudei party and candidates Zholnovych and Osipova (case #875/37/15):
  • Requirements concerning minimum 30% of any gender in election lists, established by the Law of Ukraine on Local Elections, are obligatory for organization of local elections at all levels without an exception. The CEC, therefore, is taking the authority of a legislative body when providing the exception for this rule in paragraph 4 of its Explanation.
  • As long as Article 4 (3) of the Law of Ukraine on Local Elections (concerning gender quota) are obligatory for all, the CEC has violated the Law by adoption of paragraph 4 of its Explanation.
  • The Court has emphasized that according to the Law of Ukraine on Local Elections, candidates must be nominated in accordance with party statute, and according to the Article 8 (10) of the Law of Ukraine on Political Parties, party statute must contain gender quota requirements (at least 30% of each gender in electoral list). Thus, if a local party cell fails to observe gender quota requirements, it violates candidate nomination procedure established by the Law of Ukraine on Local Elections and, therefore, it's a basis for rejection of registration in accordance with Article 46 (1.1) of the Law[2].
  • The Court mentions that according to Article 46 (1.1) of the Law of Ukraine on Local Elections, a TEC shall refuse to register a candidate if established by the Law candidate nomination procedure is violated. Thus, non-observance of gender quota requirements in electoral list established by Article 4 (3) pf the Law of Ukraine on Local Elections (minimum 30% of each gender) is a ground for refusal itself'
  • The Court refers to the ratified USSR International Convention on liquidation of all forms of discrimination against women, particularly Article 7 obliging to liquidate discrimination against women in political and social life. It also refers to Article 420 (21) of EU-Ukraine Association Agreement, aimed to guarantee gender equality and equal opportunities for men and women.

Kyiv Administrative Court of Appeals has banned and repealed the paragraph 4 of the corresponding Explanation of the CEC allowing registration of candidates despite gender quota regulations are violated.

  • According to Article 46 (1) of the Law of Ukraine, non-observance of gender quota is not a ground for refusal to register a candidate. This decision of the Court is fully in line with paragraphs 3-4 of CEC's Explanation;
  •  The Court takes into consideration the explanation letter from the Head of the VRU Committee on Judicial Policy and Justice concerning application of gender quota during registration of candidates [3]. The Court mentions that according to Article 21 (3) of the Law of Ukraine on Committees of the Verkhovna Rada of Ukraine, committees are eligible to provide explanations concerning application of the certain regulations within their authority. However, one can understand from the Court Decision that it was a letter from Head of the VRU Committee, but not an explanation provided by the Committee itself;
  • Decision of the Court mentions that explanation given by Head of the VRU Committee on Judicial Policy and Justice is in line with CEC's Explanation. Besides that, Head of the VRU Committee has also mentioned in his letter that the Law doesn't regulate authority of local party cells over the certain issues in the election process. In particular, he meant meetings (conferences) of local party cells dedicated to nomination of candidates, which are held in accordance with a party statute. Head of the VRU Committee is convinced that if local party cells fail to adhere to gender quota requirements in electoral lists, they should be legally responsible before a party and punished with internal party measures or sanctions.
  • The Court has stated that Article 4 (3) of the Law of Ukraine on Local Elections (gender quota requirements) is declarative, as long as it doesn't provide any sanctions for an election law subject.

In this case, Kyiv Administrative Court of Appeals has refused to satisfy the demands of claimants asking to ban paragraphs 3-4 of CEC's Explanations. Thus, we have two opposite court decisions on the same issue.

Influence of Kyiv Administrative Court of Appeals on the election process

It's possible to appeal against decisions of Kyiv Administrative Court of Appeals to the Higher Administrative Court of Ukraine within two days after its announcement.

The question when decision of the court enters into operation is regulated by Article 254 of the Code of Administrative Procedure of Ukraine. Thus, decisions of Kyiv Administrative Court of Appeals enter into operation after the deadline for appeals if any appeals are filed. If the Central Election Commission files the appeal, the case will be under jurisdiction of the Higher Administrative Court of Ukraine, which will decide whether CEC's Explanation is legitimate.

The Higher Administrative Court of Ukraine has passed Act #7 of 5/20/2013 on Court Decisions in Administrative Case. According to the subparagraph 10.2 of the Act, when satisfying a claim against a decision (or some statements in it) of a governing authority, a court must apply one of the following means to protect the rights of a claimant:

Cancellation of an act passed by the governing authority if it doesn't bring any legal consequences after it is passed.

Voiding of an act passed by the governing authority; the act is considered void after the corresponding court decision enters into operation or since the date established by the court.

The Court rules that decision of the governing authority is void, what means that it's not valid for future cases, if there are legal relations based on this decision which should be preserved.

However, Kyiv Administrative Court of Appeals has used both wordings in its Resolution concerning gender quota regulations in electoral lists: to cancel and void. They should not be put together, however. We should also mention that such wording makes it difficult to understand whether Resolution of the CEC is void after the decision enters into operation, or it was illegitimate from the very beginning.

The most surprising is that almost the same judicial panel (comprising three judges, and two of them considered both cases) of Kyiv Administrative Court of Appeals passes two opposite decisions on cases with the same matter on the very same day, 30 September 2015.

Thus, it's quite difficult to say which consequences such court rulings on application of regulations established by the Law of Ukraine on Local Elections would bring into the election process. However, the subparagraph 4 of CEC's Explanation allowing registration of candidates despite gender quota regulations are violated will be valid till the end of candidate registration (1 October). However, we may expect that territorial election commissions would apply the corresponding regulations unequally.

[1]http://www.cvk.gov.ua/pls/acts/ShowCard?id=41417&what=0

[2]Violation of the nomination procedure established by the Law, including exceeding limitations on the number of candidates that could be nominated in the corresponding election district according to Article 36 (3-7) of the Law.

[3]The CEC had received the corresponding explanations from Head of VRU Committee before it passed Explanation, subparagraphs 3-4 of which were appealed against before the court.