On 19 November 2015, the CEC has approved Explanations concerning application of the Law of Ukraine on Local Elections in organization and conduct or regular elections of local council members and city mayors in Krasnoarmiisk and Mariupol. According to the paragraph 8 of these Explanations, election campaigning shall not be held in election of local council members and city mayors on 29 November 2015. Thus, local party cells, which are electoral subjects, are not allowed to campaign in any forms before the regular local elections in Krasnoarmiisk and Mariupol. However, OPORA suggests to change the Explanations and allow the candidates campaign until 12 am of the last Friday before the election day.
The CEC's Explanations concerning campaigning efforts are based on the general approach used by the Ukrainian Parliament to restore voting rights of Mariupol and Krasnoarmiisk citizens. According to the Law of Ukraine on Peculiarities of the Voting Process in Regular Election of Members to Krasnoarmiisk City Council in Donetsk Oblast and Mariupol City Council in Donetsk Oblast, as well as Krasnoarmiisk City Mayor and Mariupol City Mayor on 25 October 2015, the election process is in fact restored from the moment is was illegitimately stopped. Thus, 29 November 2015 was established as a voting day for 25 October 2015 regular local elections in Mariupol and Krasnoarmiisk. Besides that, special procedures for production of ballot papers and their delivery to precinct election commissions were established.
However, this special law doesn't regulate other aspects of election process in Mariupol and Krasnoarmiisk, and the CEC had to pass these Explanations to fill in legislative gaps.
At the same time, the prohibition of election campaigning before 29 November 2015 may have sudden legal and practical consequences.
Firstly, local elections in Mariupol and Krasnoarmiisk are simultaneously regulated by the Law of Ukraine on Local Elections and a special Law on peculiarities of election in these two cities.
On the one hand, this special law is based on legal restoration of the election process from the moment it was illegally interrupted, when election campaigning was already prohibited. However, the Law on peculiarities of election in Mariupol and Krasnoarmiisk do not regulate election campaigning directly.
On the other hand, according to the Law of Ukraine on Local Elections, election campaigning shall cease at 12 am of the last Friday before the voting day (Article 54 (2) of the Law of Ukraine on Local Elections).
Such legislative inconsistencies may result in legal conflicts and confrontations with parties and candidates involved.
Secondly, CEC decision, which is aimed to fill in gaps in legislation, was taken when the election campaigning had, in fact, started again in Mariupol and Krasnoarmiisk. Current legislation doesn't establish any efficient sanctions for violation of campaign regulations, which could make implementation of the corresponding Explanations real. Besides that, the prohibition of campaigning before 29 November was passed in conditions of legal uncertainty and, therefore, its implementation is under a big question mark.
Thirdly, CEC's Explanations hazard the principle of equal opportunities. Some candidates observe the restrictions and other don't observe, but there are no efficient sanctions established neither by the Explanations, nor by the current legislation.
Taking into consideration these circumstances, OPORA suggests that the CEC introduces changes to the Explanations concerning application of the Law of Ukraine on Local Elections (Resolution #570 of 11/19/2015) in organization and conduct or regular elections of local council members and city mayors in Krasnoarmiisk and Mariupol, allowing to conduct election campaign until 12 am of the last Friday before the voting day. All the campaign expenses, however, should be included in the final financial report, which must be submitted to the corresponding territorial election commission not later than the seventh day after the voting day. We are convinced that such solution corresponds to electoral standards and is admissible in regard to the existing regulations aimed to restore voting rights of Mariupol and Krasnoarmiisk citizens.
OPORA calls on electoral subjects to abstain from politicizing the CEC's Explanations and, if there's such a need, to use civilized mechanisms of court appeals, and adhere to the law and mandatory acts of election commissions. At the same time, all the parties without exception should demonstrate their interest in securing electoral rights of the voters living in these two cities of Donetsk oblast.