September 24 was the last day to submit documents for the registration of candidates in these local elections. However, a typical problem in Ukrainian election, namely the "namesake" technology has arisen yet before this date in some of the regions, and Kirovohrad oblast in particular. OPORA has prepared a short legal explainer on the technology, how to recognize it and how to respond.
The "namesake" technology has already become a typical problem in Ukrainian elections. Registration of candidates with the same or similar names, surnames, and sometimes patronymic in majoritarian electoral systems leads to so-called "spoiler effect", i.e. scattering of votes for a given candidate in the result of confusion caused by the same names and surnames, especially if the namesake goes first in the ballot. As long as a single vote has much more impact in local elections compared to the national (districts comprise much less voters), the influence of such manipulative technology is greater.
A change of surname or first name (hereinafter - the name) in itself is a civil right of an individual and can be carried out after reaching 16 years old at the individual's own discretion, in accordance of Article 295 of the Civil Code of Ukraine and the procedure approved by the Resolution of the Cabinet of Ministers of Ukraine #915 of 07.11.2007. At the same time, such a name change can be realized to interfere in the realization of voting rights, or even have features of voter bribery.
Voters can differentiate candidates by autobiography. According to Article 222-224 of the ElectionCode of Ukraine, candidates shall submit an authobiography to a territorial election commission, containing all previous surnames, names, patronymics and dates of their change (if a person changed his/her surname and/or first name (one of his/her own names or all proper names) and/or patronymic within the last 5 years before the nomination as candidate). According to Article 2(47) of the Election Code of Ukraine, the information entered in candidate registration documents to the corresponding election commission, is open and may be published and provided in accordance with the procedure established by the Law of Ukraine on Access to Public Information.
If the name change is aimed to reduce the level of support for a particular candidate, it will violate his/her passive suffrage (the right to be elected), as well as the principle of free elections, which are also guaranteed at the constitutional level (Article 38, 71 of the Basic Law). The obstruction to realization of election process or activities of electoral subject was classified as the administrative violation by the law #805-IX of 07.16.2020, under Article 212-24 of the Code of Ukraine on Administrative Offenses. At the same time, if such actions are combined with deceit, compulsion, violence, threat, destruction or damage to property, they constitute criminal offenses under Article 157(1,2) of the Criminal Code of Ukraine.
Response of a candidate
If a candidate has reasonable grounds to believe that the exercise of his or her passive suffrage (the right to be elected) is impeded by a person who changed his or her name or surname before or during the election process and submitted documents to the territorial election commission for registration as a candidate in the same local elections, he may appeal to the national police concerning the following offenses:
- Article 212-24 of the Code of Ukraine on Administrative Offenses - obstruction of the exercise of suffrage or the activities of electoral subject;
- Article 157 of the Criminal Code of Ukraine - if the obstruction is combined with deceit or compulsion (Part 1), use or threat of violence, destruction or damage to property (Part 2);
- Article 160 of the Criminal code of Ukraine - bribery, concerning the person who offered, promised or gave illegal incentive (Part 2) and who has accepted it (Part 1).
Response of the Police
In case of receiving an information about criminal offense or after the investigator, interrogator, or prosecutor finds out in the press about the use of the "namesake" technology, they are obliged to enter the relevant information into the Unified Register of Pre-trial Investigations and initiate an investigation (214 CrPC).
The following peculiarities of such crimes should be taken into account when conducting an investigation:
- such offenses are usually committed by some subjects, when a candidate, who is interested in vote scattering, offers or gives an illegal incentive (money, goods, services etc.) to a third party, a "namesake", who changes and register for the vote in the same election process or district. In this case, actions of the "interested" candidate have signs of voter bribery - a criminal offense under Article 160(2) of the Criminal Code of Ukraine, and actions of the "candidate-namesake" - under Article 160(1) of the Criminal Code of Ukraine.
- Since, as noted above, a change of name is a civil right, the hardest thing is to prove the guilt (intent) of the person in such cases. The first evidence of such intent is a name change before or during the election process.
- It is easier to prove the intent by proving there was an illegal incentive present, as it usually happens.
For example, on 23 September 2020, a member of oblast council was detained in Kirovohrad oblast. He is a candidate for the mayor of Svitlovodsk, and a suspect in bribery of a namesake candidate with UAH 10 thousand (according to the primary information, the candidate has asked his assistant to hand the bribe). Police is now working on handing the detainees a notice of suspicion of committing a crime under Article 160(4) of the Criminal Code of Ukraine.