Research on the System of Challenging Electoral Violations & Adjudication of Disputes Related to Local Elections in Ukraine
The subject of this research is quite a topical one. The Code of Good Practice in Electoral Matters adopted by the Venice Commission of the Council of Europe in October 2002 calls for the establishment of an effective system for challenging violations of the electoral law (the Code refers to this as “the system of appeal”). This Code provides for the basic standards that govern a procedure for challenging violations during the electoral process. The Report on the Cancellation of Election Results adopted by the Venice Commission in December 2009 anticipates corresponding recommendations regarding this subject too. Also, the case law of the European Court of Human Rights shall be regarded as a substantial source of the recognized standards and criteria towards the system of challenging electoral violations. For example, it was underlined by the European Court of Human Rights in the judgment in the Case of Namat Aliyev v. Azerbaijan, that the existence of a domestic system for effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections. Such a system ensures an effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State's administration of the electoral process, and constitutes an important device at the State's disposal in achieving the fulfillment of its positive duty under Article 3 of Protocol # 1 to the European Court of Human Rights to hold democratic elections.
It should be underlined that this analysis of the system of challenging electoral violations and adjudication of disputes related to the local elections functioning in Ukraine, has been developed in accordance with the methodology similar to the one presented in the OSCE/ODIHR Handbook on election disputes - Resolving Election Disputes in the OSCE Area: Towards a Standard Election Dispute Monitoring System, developed in 2000. Two main purposes of conducting such a research are, first of all, to understand a legal nature of the entire complex of norms governing the relevant procedures, and, the second, and that is even more important, to reveal gaps and deficiencies of legal norms governing the relevant procedures.
Starting from the 2002, the above mentioned methodology was applied during the course of numerous events organized by the Vince Commission of the Council of Europe, OSCE elections projects funded by the US Agency for International Development(USAID), International Republican Institute (USA), National Democratic Institute (USA), for different categories of participants: including judges, election commissioners, candidates running for elections, official observers in different countries, namely Ukraine, Azerbaijan, Macedonia, and Moldova.
For the purpose of this report we do not touch upon the issues of imposing a legal liability for the different types of electoral violations. We are of the opinion that such approach to the certain extend corresponds with the approach outlined in the Report on the Cancellation of Election Results. For example, it is mentioned in the paragraph II.4 of this document that cancellation of election results doesn’t include fines or other punishments for violations of the electoral process.