A further difficulty with Article 86 is that one of the bases for such a decision is that the number of ballots found in the ballot boxes exceeds the number of voters by ten percent. Such an arbitrary standard of impermissible abuse serves no useful purpose. In effect, it establishes a tolerance level for fraud which cannot be compatible with the proper conduct of elections. As a matter of principle, an election result should only be invalidated if the extent of any fraud or misconduct makes it impossible to determine the true result of the election. It is also questionable whether the 10% standard is consistent with the Supreme Court’s 2004 decision invalidating the results of the second round of voting in the Presidential election. In the disputed 2004 Presidential election, the results of which were appealed to the Supreme Court of Ukraine, one of the arguments presented against invalidation of the results of the second round of voting was that the 10% standard had been satisfied for specific polling stations. The Supreme Court rejected this argument and ruled that a remedy for violation of suffrage rights was required by Articles 8, 71, 103 and 104 of the Constitution of Ukraine and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, regardless of whether the 10% standard was satisfied. Thus, retention of the 10% standard in the law appears to be inconsistent with December 2004 decision of the Supreme Court. Repeal or careful amendment to this provision should occur at the earliest opportunity.
