OPORA calls on the Kyiv City Council, the Central Election Commission, as well as local and national political subjects to guarantee citizens of the capital realization of their rights.
Contradictory interpretation of law regulations by political subjects caused disruption of the first elections to district councils in Kyiv. However, elections still may be legally rescheduled for the nearest future date.
Thus, decision of Kyiv City Council on creation of district councils should be supplemented with an appeal requesting the CEC to appoint the corresponding first elections. As a result, the CEC could legally schedule the election date and launch a new election process in accordance with the Law of Ukraine on Local Elections.
We would like to emphasize that Kyiv City Council didn't get any court-ordered prohibition to decide on administration of city districts. The CEC, for its part, didn't get any prohibition on taking measures based on decisions of Kyiv City Council concerning administration of city districts.
According to the Law on the Capital of Ukraine – Heroic City Kyiv, district management is under authority of Kyiv City Council. Political parties, as well as citizen and expert organizations had a chance to initiate a discussion concerning expediency of district councils in the capital, and members of the City Council – to decide whether to create them or not.
As long as none of them has done this, they should have forgotten political motivations in order to contribute to ensuring the principle of legal certainty in the first elections to district councils of Kyiv city and organization of the election process.
However, the CEC Resolution #621 as of 12/25/2015 (on Scheduling the Beginning of Election Process in Election to Kyiv City District Councils for 27 March 2016) was unprecedentedly challenged by a non-governmental organization. The challenge was based on legal contradictions related to the Law of Ukraine on Making Amendments to Some Laws of Ukraine on Organization and Conduct of the First Elections to Local Councils and of Village, Settlement, and City Heads, which had also amended the Law of Ukraine on Local Elections.
According to a previous wording to the Law of Ukraine on Local Elections, appointment of the first elections to city district councils belonged to the competence of a city council. Kyiv City Council has, in fact, followed this wording when scheduling the first elections to district councils in Kyiv with the Decision on Administration of Kyiv City Districts as of 27 March 2015. The Law of Ukraine on Local Elections with amendments as of 9/4/2015 has shifted the authority of scheduling the election day to the CEC. Subjects that are against scheduling the elections to district councils in Kyiv for 27 March 2016 insist that the election date should be determined by decision of the CEC. OPORA is convinced, however, that such substantiation is not convincing, as long as laws and other regulatory legal acts do not have retroactive force, according to the Article 58 of the Constitution of Ukraine.
At the same time, the Decision passed by Kyiv City Council contains an ambiguous statement concerning its entry into force. According to the paragraph 7, it enters into force on the day of its adoption. However, according to the Article 59 (5) of the Law of Ukraine on Local Self-Government, any legal act passed by a local self-government body shall enter into force on the day of its official publication, if a later date is not established. Decision of Kyiv City Council was officially published in the Council's newspaper the Khreshchatyk on 1 September 2015.
District Administrative Court of Kyiv has ruled on the administrative claim as of 27 January 2016 that “the Decision, passed by Kyiv City Council came into force after the Law of Ukraine on Local Elections had come into force (8/8/2015)”. As a result, all the corresponding court challenges based on this ruling caused the postponement of election process.
OPORA is convinced that competent authorities should analyze in detail all court rulings concerning elections to district councils in Kyiv, in order to determine whether they correspond to the Code of Administrative Procedure of Ukraine.
In particular, District Administrative Court of Kyiv has failed to substantiate (ruling as of 1/27/2016) why rights, freedoms and interests of the plaintiff (non-governmental organization) are hazarded, and cannot be protected by any other means than cancellation of the CEC's Resolution concerning announcement of the election process in Kyiv. Thus, as long as the court ruling doesn't provide a reasoning, it can be reversed.
Besides that, it was specified in the reasoning of the ruling passed by District Administrative Court on 1/27/2016 that the Court does not intend to stop the election process, but only takes measures to secure that CEC's actions are in full compliance with it, in order to prevent challenging of election outcomes in the future based on violation of the procedure for scheduling the first elections by the CEC. However, in Decision of District Administrative Court as of 2/5/2016 on Explanation of the Decision as of 1/27/2016, the Court indicated that “the CEC and other election commissions should refrain from realization of the stopped Resolution of the CEC concerning announcement of the election process, including formation of new district election commissions in Kyiv, registration of candidates for members of Kyiv City Council, and allocation of funds for preparation and conduct of elections etc.”. Thus, the Court has changed with this Explanation the matter of its previous Decision as of 1/27/2016.
It should be mentioned that Kyiv Administrative Court of Appeals is considering appeals against the judge of District Administrative Court of Kyiv, filed by the CEC and the Nazhdak NGO. These court processes hinder organization and conduct of voting on 27 March 2016.
However, despite court challenges and appeals, Kyiv City Council can legally make changes to the decision on creation of district councils in Kyiv, particularly in the paragraph concerning appointment of the election date. According to the Article 59 of the Law of Ukraine on Local Self-Government, a city council can make changes to an already passed decision. In this case, the CEC will be able to schedule the election day of first elections to district councils of Kyiv. We are convinced that such measures will give a new start to the election process and secure electoral rights of Kyiv citizens.
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