Strasbourg, 8 November 2004
Opinion no. 257/2003
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
ON THE DRAFT LAW ON ELECTION OF PEOPLE’S DEPUTIES
Adopted by the Venice Commission
at its 57th Plenary Session
(Venice, 12-13 December 2003)
on the basis of comments by
Mr Ángel SÁNCHEZ NAVARRO (Substitute Member, Spain)
- Mr Ángel Sánchez Navarro, Substitute Member of the Venice Commission (Spain), on the draft law introduced by the deputies S. Havrysh, Y. Ioffe and H. Dashutin; and
- Mr Kåre Vollan, Venice Commission expert on electoral matters (Norway), on the draft law introduced by the deputies M. Rud’kowsky and V. Melnychuk.
· the Constitution of Ukraine, adopted at the Fifth Session of the Verkhovna Rada of Ukraine on 28 June 1996, CDL(2003)086;
· the Law of Ukraine on Elections of People’s Deputies of Ukraine, amended according to the Law no. 2977-III (297-14) of 17 January 2002, CDL(2003)066;
· the draft Law on Elections of People’s Deputies of Ukraine (I), draft introduced by people’s deputies of Ukraine M. Rud’kowsky and V. Melnychuk, CDL(2003)083;
· the draft Law on Elections of People’s Deputies of Ukraine (II), draft introduced by people’s deputies of Ukraine S. Havrysh, Y. Ioffe and H. Dashutin, CDL(2003)082;
· the Code of Good Practice in Electoral Matters, Guidelines and Explanatory Report, adopted by the Venice Commission on 18-19 October 2002, CDL-AD(2002)023rev
On the scope of this report
6. The Venice Commission was invited to comment on two draft laws on electoral reform in Ukraine. This opinion specifically deals with the draft Law On Elections of People’s Deputies of Ukraine, introduced by Ukrainian Deputies Mrs. S. Havrysh, Y. Ioffe and H. Dashutin (the draft).
7. Nonetheless, the report may not ignore other texts, in particular the Law on Elections adopted by the Verkhovna Rada of Ukraine on 13 September 2001 (the existing Law), which serve as reference in different ways. In addition, a second draft Law On Elections of the People’s Deputies of Ukraine, introduced by the people’s Deputies Mrs. Rud’kowsky and Melnychuk (the R & M draft) also submitted for the Venice Commission’s expert opinion.
8. This second draft is the object of another opinion, by Mr. Kåre Vollan. Logically, as they both intend to modify the same existing Law, they share some points and differ in others. Therefore, it must be taken it into account.
On complications due to different terminology
9. It must be stated that this opinion faces difficulties arising from differences observed in translations of the different background texts. In fact, and leaving aside aspects which intend to reform, the draft follows more or less closely the general structure of the existing Law. But as the terms are absolutely different, it is impossible to ascertain which are the exact points to be reformed, and if the differences arise from the will to reform or just from the translation.
10. The point may be essential. For instance, the existing Law entitles Chapter II as Types of Elections, Procedure for and Terms of Calling, whereas the draft talks about Kinds of Elections of People’s Deputies of Ukraine, Procedure and Time of Setting Them. What is more, the Second (R & M draft) says Types of Elections of Deputies, Procedure and Terms of Election Scheduling. One might assume that the differences are due to the wording – different translation. However, it would be possible to consider other reasons.
11. Due to the fact that sometimes differences exist, for instance, while the existing Law says that “mass media representatives shall be provided with unlimited access to all public events connected with elections” (Article 12.4, very similar to the formula used by Article 13.4 in the R & M draft), the draft speaks about members of mass media, who “shall be guaranteed free access to all events related to elections” (Article 10.4). So although the rule is clear, divergences may be considerable, and it is hard to distinguish if they are intentional or not.
12. Something similar could be said with regard to Article 24.5, although in this case the problem would arise in the case of the R & M draft, which obliges members of election committees to adhere to the Ukrainian Constitution and Laws (Article 28.6.1); whilst the commented draft (Article 24.51), as the existing Law (Article 26.6.1), use the term observe, which is – may be – different. Or the expression charity [or charitable] contributions to the election fund of parties or electoral blocs (see, e.g., Articles. 34.1, 4 and 6 of the draft, and Article 40 of the R & M draft), instead of the term – much more precise – (voluntary) donations, used by the Article 36 of the existing Law.
General structure of the draft
13. As has already been mentioned, the draft follows the general structure of the existing Law, not only in the organisation of chapters, but also in their content. In brief, many – if not most – of the points highlighted by the previous opinion of the Venice Commission could be repeated.
14. The main differences arise from variation of the electoral system. Looking closely at the chapters, it is evident that they are very similar: in title (despite the underlined differences probably due to translation), in order, and even in the number of articles of most of the chapters. In fact, Chapters I to VI (Articles 1-37 of the existing Law and 1-35 of the draft), Chapters VIII and IX (Articles 53-64 in the Law and 40-48 of the draft), and the Final and Closing Provisions are quite similar, if not almost identical. However, there are slight variations.
15. In Chapter II (Kinds of elections…, procedure and time of setting them), as in 2001, the terms seem sufficient – if not too long – to allow parties to prepare the election. In any case, it must be noted that the draft affirms that elections shall be held on the last Sunday of September […], something which – if not due to a mistake – is contrary to Article 77 of the Ukrainian Constitution, which fixes it at the last Sunday of March (as, consequently, do the existing Law and the R & M draft).
16. The draft intends to introduce deep reform in the Ukrainian electoral system presently in force. In short, it removes the majoritarian element in the election of the Ukrainian Parliament Verkhovna Rada of Ukraine (the Rada).
17. Under the existing Law, this Chamber is composed of 450 deputies, elected on the basis of a mixed (majoritarian-proportional) system. One half, that is 225 of them, are elected on a unique, national and multi-mandate constituency, following Proportional Representation rules (national lists, threshold of 4% of the cast votes, larger fractional remainders for distribution of seats undistributed after the application of the electoral quota). The other 225 deputies are elected on a majoritarian rule, in 225 single-mandate constituencies (Articles 1.3 and 16).
18. The draft (as does the other R & M draft) suppresses the majoritarian component, so as to organise a purely Proportional Representation system (with the same larger fractional remainders method) for the election of the 450 deputies. In this way, a national multi-mandate constituency, which shall include the entire territory of Ukraine, shall be formed, even if the territory of the national constituency shall be divided into 450 territorial constituencies with an approximately equal number of voters (Articles 1.3 and 14; the R & M draft follows the same principle, but maintains the number of 225 territorial constituencies). Moreover, the electoral threshold is raised to 5% (Article 55; the R & M draft maintains the 4% presently in force).
19. From a political perspective, 33 party lists were present in the multi-mandate (national) constituency in the last Ukrainian general elections (held 31 March 2002) despite the difficulties in presenting lists. Only 6 of them got more than the 4%, allowing them to participate in the national distribution of seats. With respect to those lists under the 4% threshold: one had more than 3% (836,000 votes), two exceeded 2% (between 525,000 and 550,000 votes), and 4 more with more than 1% (from 282,000 to 362,000 votes). Twenty other lists remained under the 1% of the votes, even though two had more than 200,000 voters, three more than 100,000, with 15 getting less than 100,000 ballots). Therefore, the proportionally elected part of the Chamber reduced political fragmentation, although at a relatively high cost in terms of “useless” votes (nearly 4,700,000 votes cast for those parties under the 4% threshold, i.e. almost 20% of the votes did not serve to elect a member of parliament).
20. In the same elections, the single-mandate constituencies gave a seat to 95 independent candidates; 7 seats to candidates of Parties under the 4% threshold, and 123 others to candidates belonging to the 6 parties with more than 4%. In other words, these single-mandate constituencies clearly increased the degree of parliamentary fragmentation, making it more difficult to form a majority. Moreover, candidates linked to parties forming part of the majority in office clearly benefited.
21. Against this background, an entirely Proportional Representation system favours the formation of solid political parties or electoral blocs, depriving incentives to isolated and purely local or individual candidatures. Proportional systems do frequently produce highly fragmented parliaments, but in this case the high threshold makes it more difficult. In fact, and looking at the 2002 results, the difference between the 4% threshold in force, and the 5% proposed by the draft, would have been none: the sixth party got 6.27%, and the seventh, 3.22%.
22. From a purely technical point of view, the suppression of majoritarian, single-mandate constituencies could produce a clearer system. Every voter has just one ballot (and not one for the national, and a second for the single-mandate constituencies). The total distribution of seats among parties follows proportional criteria, so that a majority of votes result in a majority of seats. The whole legal framework becomes simpler. The draft is in fact much shorter than the existing Law.
24. On the other hand, the majoritarian component could be important in terms of approaching the voters and their elected representatives. The draft also seems to consider this aspect, when organising the distribution of Deputy mandates. In effect, once the total number of 450 seats has been proportionally distributed among the parties exceeding the 5% electoral threshold, the list of elected Deputies shall be made based on the results of elections in (every one of the 450 territorial) constituencies. More precisely, the list of elected candidates of a party will be made out considering the largest percentage of the votes cast for that party in the different territorial constituencies, so that candidates shall be placed on the list in the order of diminishing percentage of votes cast for the party (election bloc) in constituencies (Article 56.5).
25. This system is complex, and therefore may find practical difficulties; for example, given that the constituencies are formed with an approximately equal number of voters, there may be candidates not elected with more ballots than others with fewer ballots, but higher percentage. Nevertheless, this could maintain a closer link between voters and Deputies, which may be important for the legitimacy of the whole system. In quantitative terms, 450 constituencies, and consequently Deputies, for a country with over 37,000,000 registered electors means each constituency would have about 80-85,000 voters.
The right to vote
26. In Chapter I (General Provisions), the Law includes some precisions about the exercise of the right to vote of Ukrainian citizens who are out of Ukraine (Article 2.6, which nevertheless does not seem to solve the problem), or who cannot vote personally for health reasons (Article 4).
27. In any case, there are still two arguable points, referred to the right to be elected, which were already noted in the previous Venice Commission opinion, and which remain unchanged. The first, the requirement of five years residence in Ukraine, is clearly excessive, and does not respect the standards outlined in the Code of good practice in electoral matters. According to the Code of good practice, a length of residence requirement may be imposed on nationals solely for local or regional elections, and it should not exceed six months, unless its aim is to protect national minorities.
28. The second, the extent of the limitation imposed on those citizens convicted by a court. In this respect, the draft not clarify – as suggested by the 2001 Venice commission opinion – that this limit should only be applied to citizens against whom there is a final conviction but, on the contrary, seems to indicate that this limit has been extended, since it includes citizens not only convicted, but also who [are] at institution of confinement, whatever it may be.
Nomination and registration of candidates
29. The existing Law contains 15 Articles (38-52) in Chapter VII, while the draft only has four (36-39). The main – although not the only – reason is clear: the existing Law dedicates some articles to matters which are no longer meaningful, such as conditions and procedure of registration of Candidates… in a single-mandate constituency (Articles 42, 49), and the rules about the collection of signatures of voters required for presenting candidatures (Articles 43-46). In addition, it is evident that the remaining rules are simpler since they just refer to party candidatures, and do not have to take into consideration individual – non-party – candidatures.
Constituencies and election districts
30. It can be underlined in Chapter III – as already stated in the 2001 Venice Commission opinion – the difficulties arising from the need to form the 450 territorial constituencies before each election, instead of just re-shaping them (which, in principle, seems to be much easier). With respect to the existing Law, it must be mentioned that the existing Law foresees a maximum deviation of 10% from the estimated average number of voters in a constituency, a limit which disappears in the draft.
31. The draft also keeps an excessive variation in the number of voters in any electoral district (or polling station), from 20 to 3,000 (Article 15.6). 3,000 voters are too many, if ballots have to be counted efficiently. One can also repeat what the 2001 Venice Commission opinion said about the exceptional possibility of late formation of an electoral district (Article 15.7); this should be avoided, but in any case the law should set up some objective criteria to allow it.
32. In Chapter IV, the structure of the existing Law is basically unchanged. In general, aiming for maximum impartiality, both texts set committees with a relatively high number of members (at least 10 members for territorial committees; at least 8 for district committees, according to Articles 18.3 and 19.3; the existing Law established in both cases a number of 8). This option allows the presence of members or representatives of the main parties in the committees, as a guarantee of impartiality of the working of the system. But, on the other hand, it implies committees made up by party members (with the consequent danger of reproducing political conflicts), and by, possibly, many people. Given these committees’ important role throughout the electoral process, it might be more convenient to constitute smaller organs which are more technically prepared and politically independent.
33. Some other minor aspects can be mentioned: for instance, the draft implements the 2001 Venice Commission proposal that committees must be convened at the request of one third of their members (Article 23.1), thus giving additional protection to minorities. In addition, as the same document opportunely pointed out, the system of appeals (Article 27), which is of course a guarantee in itself, is sometimes quite confusing, for example when it allows an appeal to a superior election committee or to a court (Article 27.3 and 4). Confusion should be carefully avoided on these points. Finally, the need to include paragraphs establishing that a court shall dismiss an appeal if it establishes that the decisions […] were lawful (Article 27.18), or that the decisions of a court shall be carried out promptly (Article 27.19).
Register of votes, financial and material support
34. Chapters V and VI closely follow the existing Law structure, which was in general quite adequate. The draft seems to be concerned about private election funds of the parties or blocs, and so sets up new limits for donations (or charity contributions). The amount of these contributions is limited, from a maximum of 1,000 minimum wages in Article 37.4 of the existing Law, to 120 minimum wages in the draft, Article 34.5. The ban on contributions is extended to new groups, such as public bodies, state-owned businesses, or foreign entities (Article 34.4). Moreover, at the beginning of this Chapter VI, Article 30 introduces a new ban: the election funds of a party or bloc cannot finance other parties or election blocs.
35. Even if it is very difficult to judge this kind of rule in the abstract, without having knowledge of the general context in which they will be applied, they seem to give a clear framework allowing greater control in this financial sphere, while simultaneous making individual contributions to parties and blocs possible.
Nomination and registration of candidates
36. Chapter VII of the draft presents, as already highlighted, an initial advantage when compared with the existing Law: that of being much shorter, due to the elimination of self-nominated candidates and the requisite of a number of signatures.
37. Therefore, the right to nominate candidates belongs only to political parties (Article 8), no longer submitted to the requisite of being registered at least one year prior to the election date (Article 38.1 of the existing Law). This time requirement, reduced in length, only remains with reference to electoral coalitions: election blocs of parties can be established […] by political parties registered […] at least six months prior […] to the beginning of the process of nomination of candidates (Article 36).
38. The draft revives the concept of electoral deposit (performance bond, Article 37) absent in the existing Law. In this sense, it complies with the Code of good practice in electoral matters, which says that the deposit appears to be more effective that collecting signatures. However, it adds that the amount of deposit and the number of votes needed for it to be reimbursed should not be excessive. In addition, the provisions of the draft seem to be too burdensome: the amount seems too high (20,000 minimum statutory salaries) with reimbursement only granted if the party (or bloc) wins at least 2.5 per cent of votes cast. Otherwise, it shall be transferred to the State Budget of Ukraine. Looking at the 2002 results, this electoral barrier represents almost 700,000 votes. Democratic systems need strong parties, but this objective cannot be reached by imposing such charges on minor political actors, because it may impede the appearance of new parties.
39. The nomination procedure of candidates by the parties follows the pattern of the existing Law. The 2001 Venice commission opinion underlined that this text introduced specific rules on how a party […] nominates candidate, something which was considered as a positive step, even if more detailed provisions on the democratic character of the internal procedure of the party could be suitable.
40. In the light of this new opinion, it is more appropriate to temper this previous comment. Indeed, even if it is necessary to introduce some rules about the nomination of candidates, the provisions appear too detailed. The electoral Law may impose some requirements, but should not go as far as to impose that the candidatures must be supplemented by extracts of minutes of the corresponding party cell’s meeting, including information on total number of party members […] pertinent to the respective regional unit, the number of participants at the meeting […] (Article 36). In our opinion, the Law may require that candidates have to be presented by parties, according to some general criteria (democratic principles), which could be precise in a law on Parties. But it should not descend into such detail, especially when, in a legal framework such as the Ukrainian, parties have to be very solid if they can survive, and the same democratic requirement should be applicable to other kinds of elections (presidential, local elections…).
41. The draft also maintains the requirement of a property and income statement of candidates and his family members (Article 38). In case of deliberately misleading information, or serious non-compliance with the law […] with an intention to deceive voters, the result will be denial of registration of the candidate, something which seems to respect the principle of proportionality. Moreover, this decision may be appealed in court, and the withdrawn candidate may be replaced by the party (Article 39.3), whereas the existing Law seemed to impose the loss of the status of subject of the election process for the whole party (Article 50.3), something which the 2001 Venice Commission opinion correctly considered clearly disproportionate.
42. Chapter VIII does not seem to pose any serious problems. Again, the excessive complexity and length of some articles may be underlined. For instance, the principle stated in Article 40.7 (election campaign may be conducted in any form and using any means that shall not contradict the constitutional and legal Ukrainian framework) would possibly render useless the Article 40.2. On the other hand, there is a ban on the ability to campaign and distribute any campaign materials (which appears, at the very least, excessive), including persons who are not citizens of Ukraine, civil servants, or charitable organisations and religious associations (in fact, this is clearly a mistake, because the latter are included twice in Article 40.5).
43. The campaign is defined as lasting from the day the list is registered to 00:00 hours before Election Day (Article 40.1). This definition is quite practical, because in fact when the electoral process is open for a party or bloc, all its activities are, in a way or another, aimed at electoral purposes.
44. The excessive intervention of public powers is again evident when the draft requires that parties present one copy of each kind of printed campaigning materials […] to the territorial constituency election commission within three days from producing them (Article 41.7).
45. For the remainder, the draft retains the basic criteria for use of (public) mass media in campaigning, based on the principle of equal opportunities. In the case of non-state-owned media, the election campaign shall be limited only by the size of the election fund. Other restrictions, in Article 43 whose wording is too long and complex, include the ban on announcing results of sociological surveys and opinion polls 15 days before the elections (an overly long limit and possibly very difficult to impose in the Internet world); and the – very correctly defined – ban on candidates holding public office to use public resources (human or material: official transport, means of communication, equipment, premises…) for their election campaigns, even if it may be difficult to ascertain, at least in some cases.
Guarantees of the activity of parties and official observers
46. Chapter IX sets up quite a good system of guarantees, including representatives of parties and blocs in the election commissions (again too long and reiterative articles: see, e.g., Article 44.3 and 44.6, 44.4 and 44.7). Concerning guarantees for candidates, and official observers, i.e. partisans and from international organisations, there is no place for national, non-partisan observers; but in the general context of guarantees, it does not seem to be excessively important.
Voting and determining of results
47. The existing Law contains a unique and exhaustive Chapter X on this topic (Articles 65-84), an issue ruled in the draft by Chapters X (Voting, Articles 49-51) an XI (Vote, counting, distribution of Deputy mandates […] and ascertaining election results, Articles 52-58). The much simpler organisation is due to the system proposed in the draft (only one ballot, only one voting-box, only one result in every constituency, end of midterm elections, etc.) justifies also the great differences, not only in the number of Articles (20 in the existing Law; 10 in the draft), but also in their length: 20 pages in the Law, 8 in the draft.
48. Equally, but with less weight, the Chapter XI of the existing Law rules different kinds of elections (repeat, midterm and extraordinary, Articles 85-87), of which only the latter makes sense in the scheme introduced by the draft (see Chapter XII, Extraordinary elections, Article 59).
50. Chapter X is now, as has already been pointed out, a short and clear chapter, which does not pose serious problems. Voting time is extended (from 7 a.m. to 10 p.m.; in the existing Law, it is from 8 a.m. to 8 p.m.; in the other draft, from 8 a.m. to 9 p.m.), possibly unnecessary. The voting control is based on check slips, not necessarily the best method, but not definitively valued as negative. The procedure for exceptionally voting outside the voting premises is limited, since written application must be presented 3 days prior to Election Day (and not 12 hours before the start of voting, as in the existing Law). This restriction may be justified if the system caused problems, but if not case should be avoided, since the procedure lends itself to exercise, with certain guarantees, the right to vote in exceptional cases.
Counting and mandates
51. We have already made some comments on Chapter XI. It does not pose procedural problems, and contains a good system of guarantees, even if – once more – the wording of the articles could be shorter and simpler. In any case, there seems to be a wording error in Article 56.2, when defining the election quota, which is calculated by dividing the total number of votes cast for the political parties (election blocs) by the total number of deputy mandates (450). In fact, the votes to be taken into consideration are those cast for the political parties (blocs) that received five percent or more votes, i.e. which reached the electoral threshold (see Article 79.5 in the existing Law).
52. Chapter XII is now reduced to one article, which governs what could be also be defined as anticipated elections (Article 77.2 of the Constitution), convened by the President of the Republic. In the event of anticipated elections, all regular terms foreseen in the rest of the draft are shortened, following almost exactly the provisions of the existing Law.
53. Finally, the Final provisions define a list of behaviour or conduct which bear criminal, administrative or other responsibility (Article 60), albeit an open list, because the Law of Ukraine may establish responsibility for other violations of the legislation of Ukraine on election of deputies. From a technical perspective, and looking at concrete examples, it would be better to specify the consequences of all those types of behaviour, differentiating between serious and other violations, or, at the very least, the respective consequences.
54. In addition to the differences highlighted in the present opinion, there are other issues in the different chapters (or sections) of the draft which could be mentioned. Many of them reproduce aspects already pointed out in the previously quoted Venice Commission opinion.
55. It has been correctly stated that in electoral matters, the strongest law is the law of inertia. This draft breaks that rule, trying to establish a simpler electoral system, which could reinforce the party system and at the same time the efficiency of government policies. These aspects are essential for a country in transition, and so they deserve a good evaluation.
56. Moreover, the proposed system is easier to understand, and to implement, something which may provoke a stronger legitimacy of the whole political regime, beause it may be based on democratic elections.
57. Nevertheless, there are some troublesome points, which may be source of conflicts, such as those relative to the electoral deposit. In general, and from a formal point of view, less complex wording of the draft (as of the existing Law) would be more desirable: some questions are too detailed (e.g.: the processes for party nominations of candidates); rules are often repeated (see supra, Article 16); the structure of some articles, could also possibly be shortened and made clearer.
58. In addition, some repetitive, long, confusing, and unnecessary expressions can be found throughout the draft and could be avoided, at least some of the time. It would suffice to speak about parties’ representatives or candidates, including as a general principle that all references to parties must also be applied to blocs, unless otherwise stated.
See document CDL-AD (2004) 1.
When the existing Law speaks about polling stations (Article 17), both drafts use the term election district, which may be exactly the same or not; therefore it is difficult to guess if there is a difference or not. In fact, and given that the deputies are elected on a nationwide basis, one can consider that the term polling station is more precise and less confusing. However, one cannot be sure if the Law and the draft use the same or different expressions, in their original Ukrainian texts. The same can be said for the election commission system (Article 18 of the existing Law); election commissions network (Article 20 in the R&M draft), or system of election committees (Article 16 of the draft).
CDL-INF(2001)022, Opinion on the Ukrainian Law on Elections of People’s Deputies, adopted by the Verkhovna Rada on 13 September 2001, adopted by the Venice Commission at its 48th Plenary Session (Venice, 19-20 October 2001).
The requirement of 500,000 signatures, from 18 different regions, was correctly qualified of too high by the Opinion on the Ukrainian Law on elections of People’s Deputies adopted by the Verkhovna Rada on 13 September 2001, CDL-INF(2001)022.
CDL-AD(2002)023rev, adopted by the Venice Commission at its 51st Plenary Session (July 2002).
See footnote no. 4.
See footnote no. 4.
See footnote no. 4.
Article 40.2 : Citizens of Ukraine, political parties (election blocs), other associations of citizens, collectives of enterprises, institutions and organizations shall have the right to freely and thoroughly discuss election programmes of political parties, political, business and personal qualities of authorised representatives – candidates for people’s deputies from political parties (election blocs) and campaign for or against them at meetings, mass-meetings, in conversations, in the press, on the radio and television.
See footnote no. 4.
Such as Articles 18 and 19, or Articles 20 to 22.
For example, the reference to authorised representatives-candidates for people’s deputies from political parties (election blocs) is repeated, in Article 43 (made up of 12 paragraphs), no less than ten times, four of them in the same paragraph (Article 43.4).