To recognize the impossibility of holding elections in certain Ukrainian-controlled communities of Donetsk and Luhansk regions, civil-military administrations must provide an analysis of the state of the security situation, and the national security and Defense Council must make an appropriate decision, which is put into effect by Presidential Decree.
The concept to address the issue on the feasibility of elections in certain communities in Donetsk and Luhansk Oblasts is suggested by the Civil Network OPORA.
Let's recall that on August 8, 2020, the Central Election Commission, based on the conclusions of the Donetsk and Luhansk regional civil-military administrations, established the impossibility of holding the first local elections on October 25, 2020 in 10 territorial communities of the Donetsk region and 8 communities of the Luhansk region. Local elections, in particular, were not held in the actual regional center of the Luhansk region, Severodonetsk, as well as in other fairly large communities of the two regions (Lysychansk, Volnovakha, Avdiivka, Ugledar, Toretsk, Stanytsia Luhanska, Popasna, Shchastya, etc.). This decision of the CEC caused a resonance among voters of Donetsk and Luhansk regions, especially in communities where voting took place in all national and local elections in 2014-2019.
On January, 16, 2021, the CEC received the conclusions from Donetsk and Luhansk regional civil military administrations about security threats to voters on the territory of 18 communities, and estimated it impossible to conduct local elections on March, 28.
OPORA has multiple times urged the respective authorities to initiate the discussions about the options to legally regulate local elections in Donetsk and Luhansk Oblasts, and to develop certain criteria for decisions not to have the elections.
The G7 ambassadors also expressed their hopes about resuming suffrage for voters in 18 hromadas.
At the first meeting of the Working Group on improvement of electoral framework under the auspices of the Verkhovna Rada Committee on the Organization of State Power, Regional Development, Local Self-Government, and Urban Planning, proposals were brought forward to develop criteria for disabling elections, and to visit Donetsk and Luhansk Oblasts to study the situation on the ground.
Enhanced requirements to the CMA opinion (changes to the Law of Ukraine “On Civil Military Administrations”)
The opinion of the civil and military administration on the impossibility to organize elections must include the following items:
1. Analysis of the security situation in the territorial community (territory of a polling station) listing specific statistical data received from the Security Service of Ukraine, the National Police of Ukraine, the Command of the Joint Forces Operations, State Service for Emergencies, local self-governments, and other competent authorities, which confirm no conditions, according to the CMA, for the organization of elections.
The analysis shall include, inter alia:
- data on the growth / decrease of crime levels over the period of six months, compared to recent elections in 2015 (2019), and related to crime against national security, pursuant to Chapter І Criminal Code of Ukraine on certain territory (community, polling station);
- data on changes of the contact line (in case they relate directly to the respective territorial community / polling stations);
- number of shellfire attacks and the number of casualties per certain territorial communities / polling stations during six months that are related to the armed aggression of the Russian Federation;
- number of incidents related to the mine threat and the scope of mine-blast traumas of the territory / community residents;
- information on any mine polluted territories within territorial communities used for the needs of population and civilian infrastructure;
- the amount of illegal weapon withdrawn from the residents in the community / territory over the six months, compared to the previous period;
- number and description of incidents of armed attacks on the territory of the community against police officers, public servants and local self-government officials, local deputies and public figures, and journalists, over the six months, that were related with crimes against national security;
- number of cyberattacks against civilian and military infrastructure on the community’s territory.
The analysis shall be conducted during different periods, also in the period of conducting preliminary national and local elections. The CMA has the right to restrict access to the analysis data that may be discussed in a closed-door meeting of the National Security and Defense Council.
2. Information on the available applicable restrictions and peculiarities of functioning of the following institutions, establishments, and organizations, also about mass events and the access mode to certain territory:
- local self-governments: as to exercising the powers in combatting aggression;
- educational establishments: higher educational establishments, schools, preschools, extracurricular practice groups, etc.;
- health care facilities: hospitals, outpatient facilities, emergency units, etc.;
- centers or other agencies for administrative services;
- life services institutions and organizations: centralized water supply and water discharge, heat energy supply, hot water supply, power and gas supply, etc.;
- culture institutions: theaters, libraries, art groups, and art schools, culture centers etc.;
- banking institutions;
- public and private notary offices, territorial bodies of the Ministry of Justice;
- companies and peculiarities of work activities of their employees;
- social care centers or institutions: territorial service centers, local boards for social care, rehabilitation centers, etc.;
- commercial centers: stores, shopping molls, markets;
- mass events: rallies, concerts, mass religious events, sport competitions;
- freedom of movement for citizens and access modes to the community territory as of the moment of drafting the opinion;
- vehicle inspection regime as of the moment of drafting the opinion.
3. Information on formal measures and decisions adopted by local executive authorities (civil military administrations) and local self-governments that are compliant with the level of terror threats and other security threats listed in the CMA opinion.
4. Information on the distance of the territorial community (territory) where the elections are unfeasible from the actual contact line with the illegal armed formations on the territory of Donetsk and Luhansk Oblasts. In this information, the CMA also lists the territorial communities that are going to have the elections but located on the same distance from the combat line compared to communities where the elections are unfeasible.
5. List of local self-governments, list of public consultations on the possibility of holding elections, with their detailed positions on the matter.
In case the CMA provides the opinion on the possibility of conducting elections on a certain territory, they shall only state the fact of existing conditions for safe administration of voting. In case it is possible to have the safe voting in most polling stations of the territorial community, a decision on the impossibility to hold the relevant local elections cannot be taken.
Where to submit the CMA opinion?
Opinions of CMAs and RSAs shall be submitted to the Executive Office of the National Security and Defense Council. The NSCD Executive Office may request for additional information from the competent authorities.
The Law of Ukraine “On the National Security and Defense Council” assigns to the Council’s competence the coordination and control over activities of executive authorities to fight back the armed aggression, to organize the protection of population and secure the life-sustaining measures, life protection, health care, constitutional rights, freedoms and legal interests of citizens. The Council also determines potential and real threats to national interests of Ukraine, and considers political and other measures according to the scale of threats. Thus, NSDC is a proper coordination authority to consider security situation in a situation of preparing communities or territories for the launch of election process. At the same time, NSDC members have sufficient level of political legitimacy and responsibility crucial for deciding on the constitutionality of citizen rights.
CMA opinions and information from other competent authorities (in case of additional request from the NSDC Office) shall be considered at the NSDC meeting resulting in either approving the decision on the unfeasibility of elections in certain territorial communities (in certain territories). The NSDC decision on the impossibility to conduct elections shall be enforced by the Decree of the President of Ukraine.
Actions of the CEC
- The CEC ensures the enforcement of the Decree of the President of Ukraine on not having the elections, without the need to make a separate decision on disabling the elections.
- The CEC shall take into account the terms for having national and local elections set by the Electoral Code, inform the CMA on the need to submit the opinion to the NSDC Executive Office.
- The election process shall start on all government-controlled territories of Donetsk and Luhansk regions, in case there is no NSDC decision disabling the vote and the respective Decree of the President of Ukraine, as of the beginning of election process.