Comment on the CEC Decisions to Cancel the Previous Decision on Conducting the First Local and Additional Election in the 4 Amalgamated Hromadas in Vinnytsia, Donetsk, and Zhytomyr Oblasts

On November, 1, 2018, the Central Election Commission adopted a decision on excluding the two amalgamated hromadas from the Resolution No 156 “On the First Election of the Deputies of Village, Township, and City Councils of Amalgamated Hromadas and the Respective Village, Township, and City Heads on December, 23, 2018” and the two hromadas from the Resolution dated October, 12, 2018, No 157 “On Additional Election of the Deputies of Village and Township Councils on December, 23, 2018.”

With the Resolutions of October, 12, the CEC scheduled the first local election of the deputies of city, village, and township councils of the amalgamated hromadas, and the additional election of village and township councils. In case of the additional election, it implies to elect the deputies to the previously created councils that joined the hromada later, by means of conducting the first local election to councils. The additional election are conducted under the majoritarian election system, with voting in the one-mandate electoral districts.

Thus, the first local election shall not be conducted in Kryvorizka village hromada of Dobropillia rayon of Donetsk oblast, andin Romanivska village hromada of Zhytomyr oblast. oblast. The additional election scheduled earlier shall not take place in Vapniarska village hromada of Tomashpil rayon of Vinnytsia oblast, and in Shakhivska village hromada of Dobropillia rayon of Donetsk oblast. 

Summary of OPORA’s Position on Cancellation of Local Election in Amalgamated Hromadas

The CEC decision to cancel the decisions to conduct the first and the additional local election in the 4 hromadas was adopted without due legal cause. The analysis of the current law and the bylaws, and the decisions of the Constitutional Court of Ukraine shows the lack of powers of the Commission to reconsider the officially adopted decisions on scheduling the first and the additional local election. Concerns also evolve around the fact of adopting the resolutions without any specific justification for the need of changes to the previous decisions. The practices of CEC restrict access of members of the earlier created amalgamated hromadas to the Commission’s decisions, and impedes the judicial appeals. Hromada members and local party branches have no official information on any grounds to cancel the earlier scheduled election in Romanivska hromada of Zhytomyr oblast, and Vapniarska hromada of Vinnytsia oblast.

The case of legalizing the option on the CEC level to cancel local election after having adopted the decision on scheduling them creates a dangerous precedence and some severe risks for the decentralization process in Ukraine. Further procedural improvement and detailed legal regulation are needed for the procedure of declaring it impossible to conduct local election in local hromadas of Donetsk and Luhansk oblasts. The required change shall prevent the unjustified or politically biased decisions to cancel or delay the national and local election in these two regions.

In order to identify the justification for the decisions to cancel local election after they have been scheduled and called, OPORA analyzed the respective CEC resolutions. It must be noted that the description of the established facts and grounds for or the adoption of the decisions is only included in the CEC Resolution to cancel the decision on scheduling the first and the additional local election in two hromadas of Donetsk oblast.

The respective CEC Resolution includes a reference to the opinions of Donetsk regional state administration on impossibility to organize and conduct local election. Instead, the CEC decision to review the decision on scheduling local election in hromadas in Zhytomyr and Vinnytsia oblasts does not contain any justification or description of causes that led to the need to adopt them. In our opinion, the approach to decision making on scheduling local election goes in breach of the Law of Ukraine “On Central Election Commission.”

According to Part 3 Art. 12 of the Law “On Central Election Commission”, the Commission’s resolution shall include the established facts and grounds to adopt the Commission’s decision, as well as regulatory acts of Ukraine, and, if available, judiciary decisions the Commission relied upon when passing the decision. Lack of facts and grounds in the texts of resolutions cannot be considered as good practices of enforcement and makes it impossible for stakeholders and prospective litigating complainants to conduct a comprehensive analysis of the documents.

A general comment to the CEC Resolutions No 186-188 on cancellation of decisions on scheduling the first additional local election:

• The Laws of Ukraine “On Central Election Commission” and “On Local Election,” Procedures for Scheduling the First and the Additional Local Election do not empower the CEC to make decisions on the cancellation of the scheduled election, its interruption, termination, and/or cancellation of its earlier adopted decision on scheduling the election.

The Constitution of Ukraine stipulates the obligation of public authorities to act on the grounds, within the powers and in the manner provided by the Constitution and the Laws of Ukraine. Central Election Commission is a public administrative authority obliged to act solely within the framework and in the manner established by the laws of Ukraine.

• Pursuant to the legal position of the Constitutional Court of Ukraine, described in the decision dated 10.06.2009 No 14-рп/2009, cancellation of election to a local self-government body,  or shifting their scheduled dates on the grounds not provided by the law shall be a violation of citizen voting rights.
• Position of the Constitutional Court on the impossibility to cancel or shift the election is reflected in a number of other courts’ decisions.

Back in 2009, the position on the lack of cancellation mechanism for the election process during the extraordinary election was expressed by Ternopil County Administrative Court in its resolution in the case №2-а-838/09/1970, that became fully effective.

Instead, in 2017, the Kyiv Administrative Court of Appeals, in cases №№ 875/27/17, 875/28/17, rejected to satisfy the complaint against the CEC demanding to exclude from the Resolution No 214 dated 12.10.2017 “On the First Election of the deputies in the Village, Township, and City Councils to the Amalgamated Hromadas and the Respective Village, township, and City Heads on 24.12.2017” the appendix that scheduled the first local election in individual hromadas. The abovementioned were confirmed by the High Administrative Court of Ukraine. The CEC should not have ignored the established judicial practices when adopting the decisions so important for voters. Even more so, formerly, the CEC used to officially present in courts the position on the impossibility to cancel the first local election.

• Pursuant to the acting by-laws, the CEC shall be entitled to establish the lack of legal grounds to schedule the first and the additional local election, and therefore adopt the decisions to return the documents to the regional state administration. However, the procedure only refers to the issues related to scheduling of election, and shall not be used to cancel of the already scheduled and officially called election.

The decisions adopted by the CEC do not only go beyond the scope of Commission’s powers, but also create a dangerous precedence for politically motivated attempts to undermine the due election processes.

In particular, the CEC decision dated 01.10.2018 could motivate political actors to block the first local election on any stage of electoral process, through court appeals. Of special concern is the lack of regulatory restrictions or procedures to check the opinions of Donetsk and Luhansk regional state administrations on the impossibility to conduct the first local election in hromadas. According to our view, the current law and the by-laws do not provide for any effective mechanisms to prevent the unjustified decisions to non-conduct of the national and local election on the territory of Donetsk and Luhansk oblasts.

• OPORA states the undue level of verification of information on the availability of court decisions about amalgamation of communities into the Romanivska hromada, when considering and adopting a decision to schedule the respective local election dated October, 12. It was only when cancelling the decision on scheduling the election in this hromada that the CEC members referred to court decisions accessible in the Register yet before the Commission’s first decision.

A detailed comment to the CEC decision not to conduct the first and the additional local election in Kryvorizka village hromada and the additional election of the deputies of Shakhivska village hromada in Donetsk oblast.

The CEC Resolution No 187 on cancellation of election in Kryvorizka and Shakhivska village hromadas describes the grounds for the decision from the list of hromadas.

The content of the document shows no opinions of Donetsk regional state administration on the impossibility to conduct election in Kryvorizka and Shakhivska hromadas at the moment of the CEC’s consideration of their scheduling. Instead, as soon as 6 days after the positive CEC’s decision to conduct election in the communities of Donetsk oblast, the state regional administration started sending letters suggesting postponing of the voting.

Timeline for the decision making on cancelling the elections in Kryvorizka hromada and Shakhivska hromada of Donetsk oblast

According to the data from the CEC Resolution, at the moment of considering the decision on scheduling local election in the hromadas of Donetsk oblast, the Commission did not have any information on the impossibility to conduct the first and the additional local election in the region. In this respect, it is important to state that Donetsk RSA had enough time to send the respective letters and opinions before the CEC decisions were adopted, since the requests to conduct election in these hromadas were sent by the regional state administration to the previous membership of the Commission.

It must be mentioned that before October, 29, Donetsk RSA only sent to the CEC the letters with proposals, but not the opinion provided by the Law of Ukraine “On Local Election” on the impossibility to organize and conduct the election. The CEC never received any official positions of the Chief of General Staff – Supreme Commander-in-Chief of the Armed Forces of Ukraine and the Chief Commander of the Joint Forces of the Armed Forces of Ukraine. Instead, Donetsk RSA refers to the letters of the Main Board of SBU in Donetsk and Luhansk oblasts, and the Deputy Commander of the Joint Forces for Moral and Psychological Support and Humanitarian Issues. The letters were delivered to the CEC only after the CEC adopted the decision to schedule the first and the additional local election in Donetsk oblast.

According to par. 7 of Part One, Art. 24 of the Law of Ukraine “On Local Election,” in case the CEC establishes the impossibility to provide for preparation and conduct of local election, pursuant to the provisions of the Law, it shall adopt the decision for the specific territories on the impossibility to conduct the election to the respective local self-governments. Whereas, par. 3, of Part Three, Art. 4 of the Law of Ukraine “On Military Civil Administrations” authorizes oblast and rayon military civil administrations to issue opinions to the Central Election Commission on the possible organization and preparation, pursuant to the law, for the conduct of the respective election on specific territories, under the law. In our view, current regulation does not offer any explicit approach to have it acceptable for the Military Civil Administration to submit the opinions on the impossibility to conduct the local election after the CEC had scheduled such election. In case of such a broad interpretation of the MCA powers, there is a need to introduce changes to the law in order to establish the procedures of due interagency coordination and verification of the grounds for the opinions on the impossibility to conduct the election. The legislative improvements can be extremely important for the stable organization and conduct of Presidential election in Ukraine and the parliamentary election to the Verkhovna Rada of Ukraine.

On the basis of the MCA opinions, the CEC shall adopt a decision on the impossibility to conduct local election. The CEC Resolution No 187 dated 01.11.2018 does not contain any clear decision of the CEC on the impossibility to conduct the election to local self-government, provided by par. 3 of Part Three, Art. 4 of the Law of Ukraine “On Local Election.”

The substantive part of the Resolution does not have any explicit phrasing on the CEC establishing the impossibility to conduct the election. Instead, in the context of cancelling the decision on scheduling the election, the following wording is used: “due to the established impossibility to conduct the election.” In terms of legal certainty, it is not explicit that the CEC performed its powers to officially establish the impossibility to conduct local election in specific hromadas. Instead, at the 2015 regular local election, the CEC adopted decisions with explicit wording on the Commissions’ establishing the impossibility to conduct local election in some hromadas in Donetsk and Luhansk regions. It shall be underlined that at the open meeting, the CEC members expressed some doubts on whether the Commission had any powers to establish the impossibility to conduct local election. Such statements could serve as a practical explanation for the lack of the indubitable decision of the Commission on that matter in the Resolution.

Therefore, the CEC decision on cancelling the first local election in Kryvorizka and Shakhivska hromadas of Donetsk oblast highlighted the urgent need to improve the law in terms of organizing and conducting election in the territories located close to the warfare areas. The changes shall prevent political abuse with the security issues in order to restrict the citizen voting rights in specific settlements. In addition, it shall be reasonable to set the timeframe for decision making on the impossibility to conduct the election over certain period before the date of launching the electoral process. Canceling of voting in any period, even after the launch of electoral process, does not comply with the principles of periodical nature and legal certainty of election. In case the authority is authorized to interrupt the electoral process at any time, the election cannot be considered compliant with the standards of democratic election. Upon scheduling and calling the electoral process to the local communities of these regions, the response to security challenges to be applied shall be the same as in other oblasts.

Detailed Comments on the Decision Not to Conduct the First and the Additional Election in Romanivska hromada in Zhytomyr Oblast, and in Vapniarska hromada of Vinnytsia Oblast.

As mentioned above, the CEC Resolutions on cancelling the election in hromadas of Zhytomyr and Vinnytsia oblasts do not contain any description of the grounds and circumstances for making them. It is a rather severe problem in securing rights of the local hromadas members for further judicial appeal of the Commission’s decisions.

The public comments of the CEC members expressed at the meeting on 01.10.2018 and during the communication with the media, revealed the following causes (please, note, that the comments shall not be considered as the grounds officially established by the Commission):

• Decision of the CEC on cancelling the decision on scheduling additional election of deputies to Vapniarska village council was adopted on the grounds of the decision of Vysoke village council on cancelling their previous decision to join the amalgamated hromada. The decision was adopted by the council on September, 14, of the current year.

The CEC took the decision of Vysoke village council as the ground to reconsider its previous decision to run the additional election at Vapniarska village hromada of Zhytomyr oblast. Therefore, OPORA states that the decision on the voluntary amalgamation of the local community of the village of Vysoke of Vysochanska village council with the Vapniarska village amalgamated hromada has a non-normative nature and ceased to be effective by the fact of its execution. Thus, the decision to establish the hromada cannot be cancelled by the council decision.

Such legal position can be confirmed by the Decision of the Constitutional Court in the case No 7-рп/2009 dated April, 16, 2009, by the constitutional submission of Kharkiv city council on the official interpretation of provisions of part 2, Art. 19, Art. 144 of the Constitution of Ukraine, Art. 25, Part 14, Art. 46, Part 1, 10 Art. 59 of the Law of Ukraine “On Local Self-Governance in Ukraine” (case on cancelling acts of local self-government authorities). In this decision, the Constitutional Court of Ukraine stated that the local self-government bodies cannot cancel its previous decisions, or introduce any changes thereto, in case when according to the writs to the decisions, there evolved legal relations linked to the implementation of certain subjective rights and the interests safeguarded by the law, while the subjects of legal relations object against their change or termination. It is the “guarantee for stability of social relations” between the local self-government authorities and citizens inspiring confidence of citizens that their current position would not deteriorate by the later adopted decision. The position also complies with the legal position stated in the paragraph 2 of item 5 of the motivation part of the Decision of the Constitutional Court of Ukraine dated May, 13, 1997 No 1-зпin the case for incompliance of the deputy mandate. Non-normative legal acts of a local self-government body are the acts of one-time use, and they cease their effect by the fact of their fulfilment. That is why they cannot be cancelled or changed by a local self-government authority after the fulfilment. Similar provisions are reflected in the decision of the Kyiv Administrative Court of Appeal in the case No 729/279/17.

According to the video recording of the CEC meeting, CEC members mistakenly treated the decision of Vysoke village council as the ground to cancel the already adopted decision to run additional election in Vapniarska hromada of Zhytomyr oblast. The decision of the village council to cancel their decision to join the hromada is also questionable, which is supported by the decision of the Constitutional Court and other judicial institutions.

• The CEC decision to cancel the first local election in Romanivska amalgamated hromada was based on the notification of the Zhytomyr Administrative Court of Appeals to terminate the decision of Vilkha village council of Romaniv rayon of Zhytomyr oblast to give their consent to voluntary amalgamation of local communities. The grounds were announced by the CEC member T. Yuzkova at the CEC meeting on 01.11.2018, but it does not find any evidence in the text of the Commission’s Resolution.

According to the data from the Register of Court Decisions, Romaniv District Court of Zhytomyr oblast passed a decision to secure the lawsuits by terminating the decision of Vilkha village council dated September, 27, 2017, on giving consent for voluntary amalgamation of hromadas and on delegating their representative to the working group at regional state administration (case №290/844/17). In terms of securing the suit, the decision was eventually cancelled by the results of adopting the relevant Resolution by the Cassation Chamber of the Supreme Court of Ukraine dated 25.09.2018.

Instead, as of October, 12, 2018, when the CEC adopted the decision on schedule the first local election at Romanivska hromada, Zhytomyr Administrative Court of Appeals continued considering the appeal petition against the Baranivka Ditrict Court of Zhytomyr oblast to terminate the decision of Vilkha village council on the voluntary amalgamation of hromadas dated November, 07, 2017 (case №290/913/17). The Register of Court Decisions shows that the CEC should have received and has had all the opportunities to receive the information on one of the court procedures being uncompleted, when considering the issue to schedule the first local election in Romanivska hromada. OPORA emphasizes its general position that the cancellation of the election after they were scheduled shall be deemed inadmissible. OPORA also highlights the due organization of the verification process for the requests of RSA on the first local election in terms of availability of court decisions.