An effective appeal system guarantees democratic elections.

In Ukraine, active members of society put all complex changes, reforms and transformations under a microscope.

The public trust in agents of change starts from zero. This phenomenon stems from a stereotype based on bitter experience of conflicts between citizens and the state, which has nothing to do with conservatism. In stable democracies, there is a high level of public trust in benevolent intentions of power holders in the beginning of their political career, although they may lose credibility due to their subsequent actions or inactivity, while day-to-day realities of political life in Ukraine evoke suspicions of sinister intentions right from the start. This algorithm can be modified only with the help of positive practice and involvement of all stakeholders in the decision-making process. In summary – there is a need for success stories.

Within the framework of judicial (reform?), President of Ukraine initiated introduction of amendments to the Code of Commercial Procedure, Code of Civil Procedure, Code of Administrative Court Procedure and other legislative acts of Ukraine. As was optimistically suggested in the explanatory note to draft law No. 6232-VIII, the initiated amendments are aimed at eliminating legal uncertainty, expanding the right of access to courts, creating conditions for consideration of cases within a reasonable time frame. The above-stated positions would enhance Ukraine’s ability to hold democratic elections, help our citizens protect their active and passive suffrage, as well as contribute to their self-mobilization for vigorous civic activity. If there is a protection mechanism in place along with the right to defense and, if necessary, the right to combat falsification, manipulation or violation by legal means, then there will always be a number of active and solidary citizens who are ready to use them. We should take international standards, including the Venice Commission’s Code of Good Practice in Electoral Matters, as an example and use them for guidance until the completion of judicial reform. In simple terms, an effective appeal system guarantees democratic elections.

Free, competitive, fair and just election institution turns into a fully functional social elevator, rather than a game with pre-assigned components - money, political power resources (which are accumulated with each passing electoral cycle), media support and technogenic work of political consultants (having severe consequences for the environment and people). It is also worth giving some thought to terminology: “guaranteeing electoral rights”, “protecting fair elections”, “appealing against decisions, actions or inactivity”. In theory, during the election period courts should be used solely for the purpose of self-defense and defense, rather than attack or harassment of opponents. Therefore, all citizens holding electoral rights should be enabled and empowered to use this instrument. This applies especially to observers, members of election commissions, candidates and their agents.

Based on the assumption that an effective and operative process is an instrument, we should analyze it from the perspective of ensuring equal access, barrier-free procedure and high speed of potential decision-making process. Therefore, let’s talk about time, money and bad roads.

Pay or Keep Silent

The reform, rather thana mere change in the current state of affairs, should be aimed at extending the guarantees to electoral subjects. Financial difficulties or excessive financial resources, which are required for payment of court fees, may become an obstacle to judicial recourse. In case if wrongful provisions were established by law earlier on, correction of these provisions would be a more progressive solution, rather than engraving them on the tablets of judicial reform.

According to Civil Network OPORA’s estimates, during the first year after the 2015 local elections our courts imposed various punitive measures on 69 persons, of which 39 had to pay various amounts of fines. The majority of them replenished the state budget with penalty amounts ranging between 510 and 2,000 UAH (31 fined persons), three citizens were awarded fines ranging from 2,000 to 3,400 UAH, and two persons had to pay fines amounting to 8500 UAH. It is interesting to note that penalties for committing quite serious violations – such as bribing a voter or granting the voting right to a citizen who has no legitimate grounds to vote – were imposed in a smaller amount (29% of all cases), or the sanction was mitigated and the convicted person was immediately released from punishment (8.6% ) or placed on probation (39%). In 1.4% of all cases, convicted persons were allowed to pay fines in installments. Only 22% of convicted persons were punished in strict accordance with the sanction as envisaged in the corresponding article of a law. Now we can estimate the amounts of penalties and compare them with the amount of a court fee which will be increased in the future. Let’s imagine that we have a court decision on receipt of ballot paper by a third person instead of a voter and a corresponding sanction amounting to 680 UAH which was imposed in most cases, while private individuals are charged a court fee amounting to 640 UAH. Is this case worth the time and effortof observers, considering the fact that penalty amount is only 40 UAH larger than a court fee?

Court fees were increased in 2015 for the good purpose of preventing abuse of the right to appeal. In 2014, we witnessed an attempt to run for presidency made by a citizen who paid 2.5 UAH instead of 2.5 million electoral pledge and used her 5 minutes of glory to read out her electoral programme in poetic form in front of a dozen of cameras of national TV channels at the premises of the CEC. Property qualification might be justified as a barrier against thirsty public attention seekers, but there is no point in using property eligibility requirements when it comes to filing appeals against actions, inactivity and decisions of electoral subjects during elections. The law is abused mostly by a small category of “complainants”, and only affluent parties have the opportunity to defend their rights or the rule of law in court during the election period. While lawsuits concerning decisions, actions or inactivity of election commission or its member will be considered by court irrespective of whether court fee was paid or not, the same can’t be said for appeals against actions or inactivity of candidates, their agents, political parties, public officials, observers, mass media, enterprises, institutions, and organizations which violate the elections and referendum law.

As a matter of fact, provision of law concerning examination of appeal against the decision, action or inactivity of election commission or its member without prepayment of court fee was adopted due to the need for filing appeals on weekends. However, it is unclear why this provision doesn’t cover appeals against illegal actions of other electoral subjects.

Modern means of payment allow complainants to pay court fees with the use of electronic systems and mobile applications. Draft code provides for filing a suit and evidence in electronic form through the Single Judicial Information and Telecommunications System and certifying them with an electronic signature without the need to visit a court located hundreds of kilometers away. However, it is unlikely that nonpartisan candidates and observers, who have no access to legal advice, will be able to use these means. Therefore, they will refrain from lodging a lawsuit, since it is impossible to register in the system and obtain an electronic signature in the course of examination of the appeal.

The problem is not only one of high fees and imposition of mostly minor sanctions on identified violators, but also of demotivating approach to electoral subjects. Both the current Code of Administrative Court Procedure and the draft code, which is under consideration in parliament, give observer the right to appeal against decisions, actions and inactivity of election commissions and their members. Meanwhile, submission of appeals against actions or inactivity of candidates, political parties, executive bodies, local authorities, mass media, enterprises, institutions and organizations, which violate the elections and referendum law, is out of observer’s reach. Therefore, there is no one left to appeal against violations on personal grounds (interests) or with the aim of creating positive practices.

In accordance with the current provisions of law which won’t be affected by judicial reform, a relief from payment of court fee in electoral disputes is granted only to those citizens who appeal to administrative court for the purpose of rectification of voters’ list.

Fools and Roads

The jurisdiction of appeals against decisions, actions and inactivity of village and township territorial election commissions is subject to change. The reformist approach envisages the transfer of this jurisdiction to administrative courts of oblasts. Until now you would usually file an appeal to a court located in the nearest rayon center, whereas after implementation of judicial reform you will have to appeal to oblast court. The elections in united territorial communities are scheduled for October 29, and the geography of election process shows that much more efforts, time and resources will be required. For example, the distance from Palanka united territorial community to Uman rayon court is 14 kilometers, while the distance to Cherkasy oblast court is 194 km; the distance from Buzivka united territorial community to Zhashkiv rayon court (Cherkasy oblast) is 13 km, while the distance to Cherkasy oblast court is 209 km; the distance from Sokolivka united territorial community to Zashkiv rayon court is 26 km, while the distance to Cherkasy oblast court is 219 km. Then again, 202 united territorial communities should consider themselves lucky, because this provision of law won’t apply to their elections.

On the one hand, this raises the professional level of examination of administrative cases, since in contrast with the judge of rayon court, the judge of administrative court of oblast specializes in consideration of purely administrative disputes. On the other hand, it’s no coincidence that administrative cases concerning elections in rural areas fall within the jurisdiction of local rayon courts as envisaged by the current Code of Administrative Court Procedure. The aim is to ensure physical access to justice, and there is no political reasoning behind this.

In addition, it should be appreciated that heavy workload at administrative courts of oblasts won’t help the cause of careful examination of complaints. More than 10 years have passed since the introduction of administrative justice and during that period judges of rayon courts have gained practical experience in electoral disputes.

Another surprising thing about judicial reform is the proposal for centralization of the procedure for challenging the results of first elections in the united territorial communities at the level of administrative courts of oblasts, even though these elections are held within the framework of decentralization reform. Meanwhile, consideration of cases concerning appeals against decisions, actions or inactivity of candidates for deputies to village and township councils, village and township mayoral candidates, their agents, and members of precinct election commissions remains within the jurisdiction of local rayon courts.

Access to lodging an appeal is made even more difficult. Draft amendments to the Code adjust the procedure for lodging an appeal which should be filed directly to the court of appeal, rather than the court of first instance as was formerly the case. Consequently, electoral subjects-participants of first local elections in the united territorial communities in Volyn, Zakarpattya, Ivano-Frankivsk, Lviv and Ternopil oblasts will be forced to file their appeals to Lviv Administrative Court of Appeal within two days, while appeals against judgments delivered before the Election Day should be filed no later than 4 hours prior to the beginning of voting process.

It’s a shame that a lack of efficient logistics can become a demotivating factor and a formidable obstacle to all electoral subjects.

Time Is Not On Our Side

Sometimes even the simplest things can spring a surprise, as is the case with the proposal to bring forward the deadline for filing appeals against actions or inactivity of election commissions from 24:00 to 22:00 on the eve of Election Day. At the first glance, it is difficult to understand what is the purpose of this amendment and how it can improve access to justice for electoral subjects. The current wording of this provision of law was approved by relevant committee of the Verkhovna Rada of Ukraine. Therefore according to some, there is more to this amendment than restriction of the right to fair trial and reduction of time limit for filing appeals by 2 astronomical hours. What can be done if the election commission adopts an illegal or controversial decision at 22:05? How can electoral subjects restore their legally protected rights that may be infringed by Central Election Commission’s desire to clarify certain provisions concerning Election Day procedures,and what if this clarification will be binding on election commissions of all levels within Ukraine?The above is a rhetorical question.

Guarantee Impossible to Allow

Provision of law, which prohibits administrative courts from issuing provisional remedies in disputes related to scheduling, preparation and conduct of elections, was ruled unconstitutional by the decision of Constitutional Court of Ukraine as of October 19, 2009, in a case concerning introduction of amendments to certain legislative acts on election of President of Ukraine. As a result, the courts can’t apply this provision in practice.

The Plenum of the Supreme Administrative Court proceeds from the fact that courts can’t suspend prior judgments or prohibit actions of election commissions for provisional remedy purposes if this leads to stoppage of electoral process, except for imposition of a prohibition on public declaration of voting results if they are challenged.

In accordance with the provision of the draft code, measures of enforcement of provisional remedy applied by court shouldn’t lead to stoppage, render impossible or otherwise impede the continuity of the process of scheduling, preparation and conduct of elections. In fact, this provision is in line with the opinion of the Supreme Administrative Court. At the same time, court’s authority to apply measures of enforcement of provisional remedy is an integral part of effective legal protection, which is important for preventing further violation.

Inclusion of this restriction on provisional remedy in the Code calls for holding broad public discussion and consultation with all the stakeholders. After all, if the court doesn’t take any measures aimed at suspending the contested decision or prohibiting certain actions prior to delivering a final judgment, in some cases (for example, in case of illegal denial of registration, unlawful cancellation of registration) this may lead to impossibility of further protection of violated right and elimination of negative consequences of violation. Therefore, provisional remedy may be electoral subject’s only chance of restoring the violated right. For example, enforcement of provisional remedy by means of prohibiting the city election commission of Kherson oblast from approving the text of ballot paper and taking steps aimed at producing (printing) the ballots of candidate who was denied registration (case No. 821/3286/15-a examined by Kherson oblast administrative court).

On the other hand, provisional remedy can be used by candidates for the purpose of abuse of law, deliberate delay and purposeful disruption of election process. For example, the decision on provisional remedy in the form of prohibition on production of ballot papers can’t be adopted in the event if it prevents the election commissions from receiving ballots in time for conduct of elections.

In Lieu of a Conclusion

Credibility of election process, election results and organizers of elections is as important as the quality of legislative framework. The provisions of law, which will influence the election process, may turn into additional barriers to accessing justice. We are getting close to the end, and the rhetorical question may soon turn into a clear-cut answer. The inclusiveness of decision-making process usually serves as a safeguard against mistakes and abusive practices, although this process is much more complicated, conflictual and time consuming as compared to submission of document for parliament’s consideration following behind-the-scenes negotiation and approval thereof.

Olha Aivazovska, Olha Kotsiuruba