On June, 1, 2021, the Central Election Commission received documents from the meeting of Ukraine’s citizens on holding a national referendum by popular initiative on the question: “Do you support a ban on the sale of land of agricultural designation to anyone in addition to the state of Ukraine?” Upon considering the documents, and on the basis of the respective reports from the CEC members attending the meeting, the Commission ruled a Resolution on June, 11, 2021, to reject the registration of the initiative group.
The CEC rejected a registration to the initiative group for the national referendum publicly supported by the Batkivshchyna AU for several reasons.
Firstly, the grounds for rejection came from certain breach of procedure in the establishing of the initiative group at the meeting of Ukraine’s citizens on May, 22, 2021. The violations identified by the CEC members attending the meeting refer to cases when some participants signed in lieu of other persons or no signatures were available, when it was impossible to verify the vote count in the meeting’s decision making, when the meeting participants did not have their documents verified. Upon examining the documents of the meeting of citizens, the CEC found 47 overlapping names on the participant list, 19 deceased persons, and some minors, in addition to other breaches.
Secondly, the grounds to reject the registration of an initiative group also came from the fact that the raised question, in the CEC’s opinion, overlaps with the question of the previously registered group, in content or on merits.
Civil Network OPORA hereby states that the breach of procedure in establishing the initiative group has been documented only in reports of CEC members, and have not been supported by any other evidence or reports to law-enforcement authorities. The circumstances provide justified doubt in the proof of violations that would disable registration of an initiative group. Thereat, although the incidents were formally used to reject the group registration, they do not refute the fact of the sufficient number of lawful meeting participants to initiate the referendum. In OPORA’s view, the legislative option shall be deleted to reject the registration of an initiative group in case the necessary number of meeting participants has been provided. At the same time, the CEC shall avoid excessive formalism, especially in case of lacking properly documented violations by an initiative group.
The first experience of applying the provisions of the Law of Ukraine “On the All-Ukrainian Referendum” shows the need to develop and implement clear criteria and procedures for assessment/expert evaluation of similarity of questions from different initiative groups, in content and on merits. Further improvement of regulations would reduce the space for subjective decisions on registration or rejection of registration for initiative groups with similar referendum questions.
In terms of political statements around the rejection to register the group, OPORA hereby urges political actors to avoid any manipulative attempts to tamper with legislative procedures in order to infringe the rights of various parts of society to initiate national referenda. Any manipulations cannot be prevented by legal provisions only, but shall be overcome through a democratic approach and practices of political actors.
Besides, OPORA hereby urges the CEC to provide to the referendum initiators a list of the deceased persons found in the participant lists and in an initiative group to ensure control in the area of initiating and conducting the national referenda.
For more details on the situational analysis about the CEC’s rejection of registration to an initiative group for the national referendum through the breach of law, please, see OPORA’s memorandum of law.
І. Circumstances to initiate the national referendum (timeline)
On May, 14, 2021, the Central Election Commission (hereinafter – the CEC) received a written notification from Tomych Ivan Fedorovych, Stryzhak Mykola Ivanovych, Alpakov Yuriy Anatoliyovych, Kozachenko Leonid Petrovych, Shyshkin Viktor Ivanovych, and Tymoshenko Yuliya Volodymyrivna. The notice said that on May, 22, 2021, at 12 a.m. (registration start of the meeting participants was at 7 a.m.) in a village of Berezivka, Bucha district, Kyiv Oblast, at the address of 1, Amsterdamska Street, “Expocentr” (pavilion “A” and the adjacent territory), a meeting of citizens of Ukraine was scheduled on conducting a national referendum upon popular initiative to approve a proposal to have an all-Ukrainian referendum upon popular initiative, to approve the formulation of the question to be brought forward, and the justification of a position on the matter of the national referendum upon popular initiative, and to compose a personal membership of an initiative group for the national referendum upon popular initiative.
Therefore, to testify the fact of having the meeting, the CEC was guided by a Resolution of May, 19, 2021, No 215 “On the Notification from Tomych I.F., a.o. on Conducting the Meeting of the Citizens of Ukraine on Having a National Referendum Upon Popular Initiative Registered with the Central Election Commission on May, 14, 2021, No 21-30-6327” delegated to the meeting the following individuals: a deputy chair of the CEC, Dubovyk S.O., CEC members, Hlushchenko V.A., Yevstihneev A.S., Karmaza O.O., Lubchenko P.M., Postivyi S.O., the CEC Secretariate officers, Ruban T.P., Kleban O.S., Sudnik M.S., Kushnirenko Yu.I., an assistant of the CEC member, Sus Yu.S.. Furthermore, the above-mentioned persons were commissioned to inform the CEC about the fact of conducting the meeting via a written report, which has not been required as mandatory in the referendum law.
On May, 22, 2021, the venue hosted a meeting of the citizens of Ukraine on having a national referendum upon popular initiative on the question: “Do you support a ban on the sale of land of agricultural designation to anyone in addition to the state of Ukraine?” According to the CEC, the meeting elected an initiative group by a majority vote, of 10,927 citizens of Ukraine. At the same time, CEC representatives detected a series of alleged breaches of the referendum law that were described in the respective reports.
On June, 1, 2021, the CEC received the respective documents from the meeting of citizens of Ukraine. Upon their consideration and on the basis of the respective reports from the CEC representatives attending the meeting, on June, 11, 2021, the CEC passed a Resolution No 230 “On Rejecting the Registration of an Initiative Group of the National Referendum Upon Popular Initiative Which Registration Documents Arrived to the Central Election Commission on June, 1, 2021, and Registered Under No 21-30-6782.” The decision was supported by 10 Commission members, 4 – voted “against,” 3 members abstained on their vote. With regard to approving this decision, no other alternative draft CEC Resolutions were considered. Furthermore, during the CEC session on June, 11, 2021, the CEC member, Hlushchenko V.A., declared her intention to express a separate opinion on the decision.
It should be reminded that earlier, on May, 14, 2021, the Commission registered 5 initiative groups for the national referendum upon popular initiative on the following matters:
1) “Do you support the proposal for the natural gas extracted in Ukraine’s territory to be supplied to the citizens of Ukraine for household needs and to government and municipal companies, institutions, and organizations at a price that includes the extraction cost, and the surplus of maximum 30%?” (CEC Resolution on the registration of an initiative group No 196);
2) “Do you support the possibility to sell land (land plots) of agricultural designation in Ukraine?” (CEC Resolution on the registration of an initiative group No 197);
3) “Do you support the sales of strategic property in Ukraine?” (CEC Resolution on the registration of an initiative group No 198);
4) “Do you support legalization of gaming business in Ukraine?” (CEC Resolution on the registration of an initiative group No 200);
5) “Do you support legalization of a marihuana narcotic in Ukraine?” (CEC Resolution on the registration of an initiative group No 199);
At the same time, 10 initiative groups for national referendum upon popular initiative were rejected of registration because the CEC believed that the questions they raised overlapped in content and on merits with those from the previously registered initiative groups, and because of breach of legal procedure in holding the meeting of citizens.
It shall be noted that on April, 29, 2021, at 15 different meetings, certain questions were raised that fully overlap, such as the first question was brought forward at 4 meetings, question two was raised at 3 meetings, question three – at 3 meetings, question four – at 2 meetings, question five – at 3 meetings.
ІІ. Assessment of the Approved Decision and Debatable Issues
The procedure for the organization and conduct of the meeting of citizens of Ukraine for national referendum upon popular initiative, and the establishment of an initiative group and its registration are regulated in Art. 30, 31 of the Law of Ukraine “On All-Ukrainian Referendum”, and by the CEC Resolution of April, 29, 2021, No 190 “On Explaining Certain Issues for Conducting a Meeting of Citizens of Ukraine on Having a National Referendum Upon Popular Initiative.”
Rejected registration of an initiative group for national referendum upon popular initiative was justified by the CEC on the following grounds:
1. Breach of the requirements of the Law of Ukraine “On All-Ukrainian Referendum” when establishing an initiative group at the meeting of citizens of Ukraine on conducting national referendum upon popular initiative that took place on May, 22, 2021, in a village of Berezivka, Bucha district, Kyiv oblast (para 1 part 2 Art. 31 of the Law of Ukraine “On All-Ukrainian Referendum”).
Document analysis. In particular, following the verification, the CEC identified that participant lists included 47 persons twice, and also had 19 diseased persons in. A list of an initiative group included 13 persons who were under 18 years of age on the meeting day, 25 citizens were included twice, and there were 17 names of diseased individuals. In addition, for 14 persons included on the list of an initiative group members, there have been no statements of consent to be a member of the initiative group. Therefore, the meeting attendants list included 66 persons of 11,873 against the rules, which is about 0.5% of the total number (i.e. 0.55%); the list of an initiative group members unlawfully included 55 of 10,927 persons, which is about 0.5% of the total number (i.e. 0.503%).
Furthermore, the CEC Resolution No 230 says that signatures opposite the same names and other personal data are visually different, whereas the CEC does not have the powers or relevant qualification to assess the signatures of attendants of the meeting of citizens. To fill the gap and to ensure proper verification of signatures of meeting attendants in the law on the national referendum, the approach may be used as formulated in the draft law “On Local Referendum” No 5512 of 19.05.2021. It foresees that the administrative authority for the State Register of Voters shall respond to the request of the election commission and verify the data on meeting attendants that approved the initiative to conduct a referendum, and candidates nominated to be members of the initiative group at this meeting. In case information is available on the facts proving the alleged falsification of signatures in the registration lists of the meeting attendants, verification of voter signatures on the registration list may be administered by the respective law-enforcement authority.
Current law does not include any precise list of documents that could provide the grounds for identification of participants of the meeting of citizens for national referendum. In judicial practices (case No 826/5496/17 concerned the Law of Ukraine “On All-Ukrainian Referendum” of 06.11.2012 (lost effect)) the claimant’s statements on the need to identify persons attending the meeting, on the grounds of documents certifying Ukrainian citizenship, the requirement only pertains to the information on the serial number of passport of Ukraine’s citizen in the lists. Part 6 of Art. 30 of the acting Law of Ukraine “On All-Ukrainian Referendum” includes similar provisions.
At the meeting, certain members of the Central Election Commission announced the position that during the registration of 5 initiative groups, the CEC applied a different, more liberal approach whereas persons nominated for membership in an initiative group whose data do not comply with the law on national referendum shall not be included on the list of the registered initiative group. However, according to the video materials of the broadcast of the meeting of May, 14, 2021, posted on the CEC website, the issue has not been brought forward for discussion. At this meeting, they only discussed certain inaccuracies in furnishing the documents about the authorized representative of an initiative group.
According to para 5.3 of the CEC Resolution of April, 29, 2021, No 190 “On Explaining Certain Issues for Conducting a Meeting of Citizens of Ukraine on Having a National Referendum Upon Popular Initiative,” in the event when any inconsistencies are identified about meeting attendants and members of an initiative group submitted in the electronic form and in paper, it shall be notified in a letter signed by the member of Central Election Commission to the authorized representative of an initiative group, with the specified deadline by which the list can be corrected or amended. At the session on June, 11, 2021, CEC members in charge of the preparation of the draft decision did not announce about any request to the initiative group to correct the found inconsistency in the lists. At the same time, during the registration of initiative groups on May, 14, 2021, CEC members informed about the introduction of corrections and amendments by initiative groups which was supported by the Commission’s decision on the registration of the respective initiative groups.
Analysis of compliance with the legal requirements when establishing an initiative group. The CEC Resolution No 230 mentions certain violations identified by CEC representatives that were reflected in the relevant reports such as: admittance for registration of persons who have not confirmed their identity with any IDs, falsification of signatures in lists of the meeting of citizens, in applications of consent for membership in an initiative group, unsatisfactory performance of the counting commission, etc. It shall be noted that according to the information in the CEC Resolution No 230, there was only one case when a CEC member, Postivyi S.O., photo-documented the alleged violation. There is no other information to properly justify the quoted facts as reports of CEC representatives have not been promulgated in open access. The procedure for drafting the reports have not been stipulated by the specialized law but only regulated in the by-law (para 4.4., 4.5. of the CEC Resolution of April, 29, 2021 No 190 “On Explaining Certain Issues for Conducting a Meeting of Citizens of Ukraine on Having a National Referendum Upon Popular Initiative”). To justify legal preconditions for the respective reports, they usually refer to provisions of part 5 Art. 30 (on delegating the representatives to certify the fact of conducting a meeting) and part 1 Art. 31 (on analysis of compliance with legal requirements when establishing an initiative group) Law of Ukraine “On All-Ukrainian Referendum.” However, both this law and in the Law of Ukraine “On Central Election Commission” have no mentions about any such reports. Furthermore, the CEC powers do not include any possibility to oblige their representatives to notify the Commission on the fact of holding the meeting through submitting a written report.
Moreover, during the CEC session of June, 11, 2021, a discussion evolved about the operations of the counting commission. Specifically, the remarks captured in the reports include the following: the vote count for decision making was administered in a manner that did not allow for verification, the time for vote count was too short, a.o. On the other hand, CEC representatives do not agree with the fact, and retorted that the vote count process was organized in a due manner, with special technical means (mobile application), counting commission members stayed on a podium and were assigned to sectors. In addition, the parties referred to the lack of precise legal regulations for the work of the counting commission, apart from the requirement to establish it and make a decision of the meeting of citizens by a majority vote. Representatives of an initiative group also expressed their readiness to provide information on technical means used in the vote count of the meeting participants. At the same time, the law does not foresee any right for members of an initiative group to present any additional documents and arguments to confirm their position during the consideration of a registration case of an initiative group for national referendum; the procedure may only be exercised in the contestation of the decision that had been made by the CEC.
It shall be noted that despite the information included in the reports of certain CEC members on the fact of some participants signing also for other persons, which includes elements of a criminal offence stipulated by Article 158-3 of the CCU, there have been no reports filed to the National Police from any such election commission members. On the other hand, CEC members said that in order to report to the police, they needed to conduct an additional analysis of documents submitted by the initiative group.
At the same time, a CEC member, Lubchenko P.M., during the Commission session on June, 11, 2021, informed that the CEC representatives attending the respective meeting of citizens did not draw any acts certifying the alleged violations as it has not been foreseen by the referendum law. Furthermore, they were not capable of identifying individuals who were allegedly signing in place of other persons. As a result, they were not allowed to approach the tables closer than 1.5 m. At the same time, CEC members Yevstihneyeva A.S. and Hlushchenko V.A. claimed they have not documented any violations of the referendum law at the meeting of citizens.
Therefore, the Commission's decision in part of justifying the rejection by violations documented only in CEC members reports is questionable, especially with regard of no complaints to the law-enforcement during the meeting, and proper evidence of alleged violations (photo documenting was only made in one case to capture the alleged breach). Moreover, neither the law on national referendum nor the CEC Explanation on Certain Aspects for Conducting the Meeting of Citizens of Ukraine for National Referendum Upon Popular Initiative provide for any control powers for the CEC over the registration procedure for meeting participants, the work of the counting commission at the meeting, and other violations documented in the report, or any other possible forms of capturing the identified violations.
Furthermore, although the violations found in the analysis of documents submitted for registration of an initiative group may formally serve as the grounds for rejected registration of an initiative group, they do not de facto impact the decision on the legitimacy of holding the meeting of citizens of Ukraine and establishment of an initiative group for national referendum upon popular initiative. Since the number of meeting participants and the number of members of an initiative group is much higher than the minimum required number set in Art. 30 of the Law of Ukraine “On National referendum” to hold the meeting and to establish an initiative group (300 and 60 voters, respectively), their inclusion into the documents do not provoke any concerns.
At the same time, there is a need to regulate in the law the functions, rights, and obligations of a CEC representative during the meeting of Ukrainian citizens on having a national referendum upon popular initiative, such as in part of a possible documenting of breach of procedure for holding a meeting (also during the work of the counting commission, or registration of the meeting participants) and about further assessment of the collected proofs in making a registration decision (or registration rejection) of an initiative group.
2. Question “Do you support the possibility to sell land (land plots) of agricultural designation in Ukraine?” and “Do you support a ban on the sale of land of agricultural designation to anyone in addition to the state of Ukraine?” coincide on merits (part 12 Art. 31 of the Law of Ukraine “On All-Ukrainian Referendum”).
The Commission hereby reiterates that the above questions correlate as generic and specific. To a certain extent, we can agree with the CEC conclusion that both issues are meant to regulate social relations connected with the exercise of a constitutional title to land (part 2 Art. 14 of the Constitution of Ukraine), particularly, the right to administer land (land plots) of agricultural designation. Therefore, putting to several subsequent referenda the issues with this type of correlation may lead to the breach of principle of legal certainty as an element of the rule of law enshrined in Article 8 of the Constitution of Ukraine.
On the other hand, during the CEC session on June, 11, 2021, certain arguments were raised about differences in content between these questions, such as the need to differentiate between the concepts of “land” and “land plots” of agricultural designation. They also highlighted the need to differentiate the questions by subject matters and the implementation mechanisms.
In addition, the initiative that was decided to be rejected on May, 24, 2021, identified the state of Ukraine as a specific party entitled to sell land plots for agricultural designation, as compared to the possibility to sell agrarian land plots to any entity, which was suggested in formulating questions for national referendum by the registered initiative of April, 29, 2021. It laid the foundation, among other things, for the conclusion on the correlation of these questions as generic and specific.
Moreover, despite the fact that under part 3 of Art. 3 of the Law of Ukraine “On All-Ukrainian Referendum,” one question only may be put to the referendum. Provisions on the overlapping questions in content and on merits (part 12 Art. 31 of the Law) shall be considered in system with provisions of part 2 of Art. 4 of the Law of Ukraine “On All-Ukrainian Referendum.” In fact, conducting referenda on two mutually excluding questions that may potentially receive positive answers, also within the three-year ban, will lead to the violation of the above-mentioned statutory imperative disabling the changes of the referendum decisions during the stated period.
A CEC member, Yevstihneyev A.S., at the CEC session, also paid attention to the semantics of words used in part 12 of Art. 31 of the Law of Ukraine “On All-Ukrainian Referendum.” In particular, “content” and “merits” are identical, in his opinion. However, the problem is in the broad interpretation of the expression used in the law on “overlap in content and on merits.” It allows the CEC to justify their position not only with the overlapping of questions (full coincidence) but also with their resemblance (similarity).
Development and implementation of precise criteria and procedures for assessment/expert evaluation of identical questions of various initiative groups in substance and on merits is a prerequisite for proper exercise of citizen rights for the all-Ukrainian referendum. Further improvement of the regulation shall reduce the gap for subjective decisions on registration or rejected registration of initiative groups with similar referendum questions.
ІІІ. Contesting the CEC Resolution No 230 of June, 11, 2021
Initiators of the national referendum have multiple times mentioned that in the near future they would appeal against the CEC decision to reject the registration of an initiative group. It shall be mention in this respect that by the moment of registration of an initiative group, as the practices prove, disputes in this category shall be considered by courts and under general terms, rather than within shorter timeline. It can be illustrated by the case mentioned during the CEC session on June, 11, 2021, by a CEC member, Hlushchenko V.A. It is a case No 826/5496/17 about the initiation of a national referendum about the possibility of purchase and sale of land of agricultural designation that was under consideration from 2017 to 2020. It is notable that during most of this period (i.e. for 3 years) there was in effect a Ruling of the District Administrative Court of the City of Kyiv on Injunction that prohibited for the CEC to make decisions on the registration of an initiative group.
However, we believe that with regard to Part 1 in Art. 273 of the Code of Ukraine on Administrative Proceedings that lists entities entitled to contest the decisions, actions, or inaction of election commissions, referendum commissions, or commissions members, it also includes other referendum initiating subjects. They may refer to meetings of the citizens of Ukraine (via an authorized representative), and of voters. At the same time, under Part 2 of the same Article, voters would need to prove that their voting rights or interests in involvement in the referendum process had been infringed.
To avoid divergences in interpretation of the provisions, to build a unified approach for judicial practices in this category of disputes, and to provide for efficient judicial protection the parliament was recommended to approve amendments to the Administrative Procedures Code of Ukraine foreseen in the draft law “On Local Referendum” No 5512 of 19.05.2021.