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V. POLITICAL RIGHTS AND FREEDOMS: ISSUES ON COMPLIANCE AND PROTECTION

5.1. CONSTITUTIONAL ELECTORAL RIGHTS OF THE UKRAINIAN CITIZENS

The general principles for conducting elections are set forth in the Ukrainian Constitution and international standards on human rights. According to Article 71 of the Constitution, elections to bodies of state authority and bodies of local self-government are free and are held on the basis of universal, equal and direct suffrage, by secret ballot.

The President, People’s Deputies, deputies of Parliament of the Crimean Autonomous Republic, city mayors and deputies of self-government bodies are elected under operative laws On Election of the President of Ukraine (September 8, 1997), On Election of People’s Deputies of Ukraine (September 24, 1997), On the Central Election Commission (December 17, 1997), On Elections of People’s Deputies of the Crimean Autonomous Republic (February 19, 1998), On Elections of Deputies of Local Radas and Village, Township, and City Chairmen (January 14, 1998), and On All-Ukraine and Local Referendums (July 3, 1999).

According to the provisions of the above-mentioned laws, the Elections of People’s Deputies were held on March 29, 1998. During the second round of voting the President was elected on December 14, 1999.

In conformity with the Law On Elections of People’s Deputies of Ukraine of September 10, 1998, 444 People’s Deputies were registered, including 223 deputies in the multi-candidate national electoral district and 221 deputies in the single-candidate electoral districts. The Parliament of Ukraine numbers 430 People’s Deputies with university degrees (the Parliament of the previous convocation had 398 People’s Deputies with university degrees) and 178 People’s Deputies with academic degrees or status (154 People’s Deputies in the Parliament of the previous convocation). 36 women were elected to the Ukrainian Parliament (19 in the Parliament of the previous convocation). The Parliament became visibly younger in age.

The parliamentary elections aroused keen interest throughout the world – over 400 representatives from 34 countries and international organizations observed the elections.

Quite a few cases of violation of the citizens’ right to the free expression of their will were registered during the 1998 parliamentary elections, as evidenced by numerous publications in the mass media and lawsuits filed by the participants in the election campaign. District (town) courts alone considered over 2,500 cases against the decisions and actions of election commissions relative to the disputes that arose before and during elections. At the same time it is necessary to emphasize that control over compliance with the citizens’ rights to the free expression of their will is among the most complicated issues in the activity of the Commissioner for Human Rights.

A typical example of repeated infringements of electoral rights (evidenced by the applications and appeals) occurred in Kyiv’s electoral district No. 221 in Kyiv. Here a people’s deputy was elected three times in 1998 and 1999 and three times the elections were ruled invalid. This came as a result of gross violations of election legislation. In the end, no deputy was elected in this district in about two years.

To make at least an indirect conclusion on how the Law On Elections of People’s Deputies of Ukraine is complied with it is important to study voting statistics in the single-candidate electoral districts. The picture becomes clearer when comparing the number of voters who received voting ballots and the number of people who took part in the voting. Out of the total 26,754,184 voters (71.27%) who came to the polling stations and received voting ballots, 26,553,118 persons (70.73%) took part in the voting. Consequently, 201,066 voting ballots (0.54%) were not cast and taken out from the polling stations by the voters: 57,129 voting ballots from the polling stations in electoral district No. 57 (Donetsk oblast), 56,028 in electoral district No. 56 (Mariupol, Donetsk oblast), and 6,766 in electoral district No 41 (city of Donetsk). For the absolute majority of the districts this indicator, as a rule, did not exceed several hundreds ballots, while the average indicator nationwide totaled 893 ballots.

The total number of invalid ballots speaks of the citizens’ poor knowledge of voting mechanisms and principles and of the inadequate organizational work of election commissions in the course of voting and vote counting. During the 1998 parliamentary elections 1,145,196 ballots were ruled invalid nationwide. The average rate per electoral district was 5,089 ballots. However, in district No. 70 (Uzhgorod) this indicator was more than 20,000 ballots; in districts No. 72 and No. 74 (Transcarpathia oblast), No. 41 (Donetsk), No. 166 (Ternopil oblast), No 204 (Chernivtsi oblast) and No. 153 (Rivne oblast) the figure was over 10,000 ballots per each district. The very system of valid voting does not exclude the possibility of putting additional marks on the ballots during the counting of votes, which gives the grounds for recognizing the ballots invalid. Therefore, quite a few provisions of the Law On Elections of People’s Deputies of Ukraine require fundamental improvement and clarification.

The Commissioner ascertains that cases of manipulation of ballots during voting were not appraised properly and the reasons were not analyzed fully. Hence the ground for charges of fraud of the election returns. At the same time the fact that the 1998 parliamentary elections were undemocratic was not proved according to due process of law.

Since no funds for holding parliamentary elections were available, elections to replace the retired deputies in the majority districts did not take place for quite a long time contrary to operative legislation. This is a gross violation of the constitutional right of citizens to elect and be elected. In accordance with the Constitution, Ukrainian citizens are entitled to take part in the administration of state affairs, freely elect and be elected to bodies of state authority and local self-government. Nomination of candidates during elections has to facilitate this process as well. In accordance with election legislation, this right is granted to citizens and exercised by the political parties, their election blocs and the citizens directly through self-nomination as well as by the meetings of individuals and working collectives. However, the Law On the Election of the President of Ukraine does not provide for a procedure of direct nomination of an individual through self-nomination of a candidate to the highest office in the state. So there are reasons to claim that this provision restricted the citizens’ rights in the process of nomination of presidential candidates in 1999.

The appeals submitted to the Commissioner for Human Rights evidence that in several cases organizers of voters’ meetings were so intent on nominating a definite person that they did not provide an opportunity for discussing other candidates. On many occasions candidates were nominated in their absence and without their formal consent.

The Commissioner for Human Rights holds that in order to avoid the violation of the voters’ rights in future it would be better to establish a uniform approach to nominating candidates to any elective office. As the subjects of the right to nomination, citizens should by binding procedure be entitled to direct self-nomination through the submission of a respective application.

The absence of an effective mechanism for checking the collected signatures resulted in the Central Election Commission (CEC) denying registration to six claimants to presidential candidates. The Supreme Court established that the CEC violated the requirements of the law. Thus there developed a situation when of the 15 presidential candidates 9 candidates were registered by the CEC ruling as such who collected not less than one million signatures, while 6 candidates were registered by the CEC in compliance with the rulings of the Supreme Court.

The Commissioner for Human Rights holds that a reasonable way of eliminating the drawbacks in the election practice would be to legislatively change the procedure for collecting voters’ signatures, reduce their quantity and introduce an improved procedure for certifying voters’ signatures at their place of residence.

Many democratic states apply financial pledges that are contributed by political parties or individuals supporting a definite candidate. The Commissioner believes that if such a mechanism is introduced in national legislation it would reduce State Budget expenditures for elections and the number of cases of violations of citizens’ electoral rights.

To ensure timely response to and control over compliance with the constitutional electoral rights of all persons participating in the election of the President, the Commissioner for Human Rights established a "hot line." It was a novelty in an election campaign in Ukraine. As a result, the Commissioner was receiving hundreds of verbal and written appeals by telephone, in letters, telegrams and fax messages. The appeals came from voters, representatives of election headquarters, authorized representatives of presidential candidates, citizens’ associations, observers, and even the candidates themselves. The Secretariat of the Commissioner for Human Rights examined all appeals in good time and took respective measures to eliminate the infringements of the citizens’ electoral rights.

According to operative legislation, electioneering implies the right to free and in-depth discussion of the candidates’ election programs, their political, professional and personal qualities, canvassing “for” or “against” the candidates at meetings, rallies, and discussions in the press, on radio and TV. Article 31 of the Law On Election of the President of Ukraine stresses that an election campaign starts once the CEC registers the presidential candidate and terminates one day prior to Election Day. Electioneering may be conducted in any forms and by any means that do not clash with the Constitution and laws of Ukraine. However, not all citizens were actually given the opportunity to learn about the election programs and be introduced to the presidential candidates.

Among the violations of the right to free election during the 1999 presidential elections was non-compliance with the principle of equal opportunities in the mass media. There were many cases when pressure on the mass media was applied. For example, in Luhansk local authorities halted the printing of the newspaper XXI vek (21st Century) that featured articles in support of presidential candidate Yevhen Marchuk.

In some mass media foreign citizens, mostly citizens of the Russian Federation, prepared material that was of an electioneering nature. For example, the TV channels INTER and UT-1 channels broadcast the programs “As a Matter of Fact” and “Issue of the Day” that were prepared with the aid of Russian experts. The Fakty (Facts) newspaper published election-related articles written by Russian image-makers. Unfortunately, Ukrainian legislation does not clearly spell out the prohibition of information intervention in the election process by foreign TV and radio companies. No mass media representative was brought to account for violating the electoral laws.

The Election Observation Mission under the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (ODIHR/OSCE) and the Parliamentary Assembly of the Council of Europe (PACE) also drew attention to the issue of ensuring the principle of equal opportunities in the mass media. The statement of these international organizations noted that the coverage of the election campaign by the mass media failed to comply with the legislation requirements and obligations of Ukraine as the participant country of the Organization for Security and Cooperation in Europe.

After voting in the presidential election, the Commissioner for Human Rights personally met on November 12, 1999 with Mr. Simon Osborn, the Head of the ODIHR/OSCE Election Observation Mission in Ukraine. During this meeting the parties discussed the most urgent issue of ensuring the rights of Ukrainian citizens to free elections in the 1999 election campaign. The parties also confirmed that state officials and other employees of bodies of state authority interfered in the elections. The concluding document of the ODIHR/OSCE Election Observation Mission in Ukraine stated that heads of state administrations in eight oblasts at different levels openly exhorted people to vote for the acting President, while public officials and workers of educational and medical establishments electioneered in favor of the acting President in other six oblasts. The ODIHR/OSCE Election Observation Mission received appeals to the effect that law enforcement bodies were actively involved in politically motivated interventions and post offices workers disseminated electioneering material in support of the incumbent. In this manner election laws and the obligations Ukraine assumed upon accession to the OSCE were violated.

According to Article 19 of the Ukrainian Constitution, “bodies of state authority and bodies of the local self-government and their officials are bound to act only on the grounds, within the authority, and in a manner provided for by the Constitution and laws of Ukraine.” Article 33 of the Law On Election of the President of Ukraine prohibits explicitly bodies of state authority, including courts and prosecutors’ offices, bodies of the local self-government and their officials and officers to electioneer in favor of any candidate.

However, these requirements were violated by the officials of the bodies of state authority and representatives of the local authorities. There were cases when bodies of the executive and managers of enterprises, entities and organizations put pressure to bear on voters, above all on subordinate workers and students, to induce them to vote for a definite candidate.

The Commissioner for Human Rights has to state that Ukraine lacks effective mechanisms of control to ban the interference of officials and officers of the bodies of the executive and self-government in the election process, which leads to the violation of the citizens’ constitutional rights to free elections.

During the presidential elections, the Commissioner for Human Rights received complaints from M.Burkivsky, chairman of the Tarashcha district rada, G.Vinnychenko, deputy of the Kyiv oblast rada, and others, who informed about frequent violations of the presidential election law. In response to the complaints, the Commissioner for Human Rights initiated an on-site fact-finding inspection. The latter established that M.Baraniuk, chairman of the Kyiv oblast rada, S. Lola, chairman of the Tarashcha district state administration, and peoples’ deputy T.Zasukha grossly violated the right to free elections and applied pressure to the administrators of the Tarashcha district to make them vote for one of the presidential candidates. In particular, managers of enterprises and business entities as well as teachers and medical workers were invited to the district state administration office and other government bodies, where they were openly told to support L. Kuchma for the presidency. At the request of the Chairman of Parliament a memorandum on the inspection results was communicated to him on November 18, 1999.

The collective appeal submitted by six voters from Kyiv to the Commissioner for Human Rights stated that at the territorial electoral district No. 220, polling station No. 63 (located in the Hospital No. 15, Podil district, Kyiv), the head of the department, acting on behalf of the chief doctor, forced the patients on October 31, 1999 to vote for a definite candidate, threatening that if they did otherwise they would be discharged from hospital without any appropriately executed medical documents. After this fact was established, the Commissioner’s representatives immediately arrived on the spot, thereby averting the violations of conducting the elections in conformity with operative legislation.

According to the report of the authorized representative of presidential candidate Yuri Kostenko, Mr. V.Tarasevych, dean of the department of energy mechanization and electrification at the Donetsk State Technical University, abused his office and forced the students to vote for a definite candidate. The appropriate measures that were promptly taken by the Commissioner helped to check the violations of the citizens’ rights.

On several occasions officials of bodies of the executive were overzealous to secure election participation, violating human rights in this effort. For example, Mrs. I.Shusterman (Vatutin district, Kyiv), a mother of seven children, complained to the Commissioner that passport service bodies refused to issue a residence permit for her newly born child, arguing that since this procedure takes up much time, her passport would have to remain with the said service office, for which reason she would not be able to take part in the elections. In response to the complaint, the Commissioner communicated an appeal to the MIA bodies requesting to have the violations of the applicant’s human and civic rights removed.

The authorized representatives of presidential candidate Olexandr Moroz in Dnipropetrovsk oblast filed an appeal to the Commissioner for Human Rights along with Xerox copies of articles in the newspapers Zaria (Daybreak) of October 28, 1999 and Dnepr Vecherniy (Evening Dnieper) of October 29, 1999 carrying appeals by Y. Dubinin, chairman of the Dnipropetrovsk oblast rada, and M. Shvets, Dnipropetrovsk city mayor, to vote for a definite candidate.

On October 30, 1999, at polling station No. 33 (territorial electoral district No. 42, Donetsk oblast), the head of the divisional election commission actually electioneered by disseminating printed materials in support of a candidate. Something similar happened at polling station No. 62 (territorial electoral district No. 104, Luhansk oblast). Such actions qualify as violations of Item 1, Article 33 of the Law On Election of the President of Ukraine, by which members of election commission are prohibited from electioneering.

The Law On Election of the President of Ukraine sets out the procedure for electioneering and provides the opportunity to do so without any obstacles and on equal conditions. However, the last elections showed that the absence in the law of liability for violation of election legislation results in numerous irregularities and impunity in electioneering primarily by officials and officers of bodies of state authority and local self-government. Representatives of presidential candidates’ pre-election headquarters and public human rights organizations in Luhansk oblast and Chernihiv oblast filed complaints against law enforcement bodies and other bodies of state authority for hindering electioneering (absence of special boards for election campaign material, unjustified apprehension of electioneerers, seizure of election campaign material, interference in the normal operation of the mass media). These facts of illegal meddling of officials in the election process made the Commissioner for Human Rights forward government telegrams to the appropriate oblast public prosecutor’s offices for adequate response.

Article 33 of the Law on Election of the President of Ukraine prohibits electioneering that is accompanied by offering voters goods, services, securities, money and other material values at no charge or on beneficial terms. But as the election campaign showed this provision was constantly violated. In particular, numerous concert performances were arranged for free in many Ukrainian cities and towns in support of a candidate. Being of an openly electioneering nature, these concerts involved performers who were not Ukrainian citizens, but citizens of the Russian Federation.

The 1998 parliamentary and 1999 presidential elections showed what are called anti-technologies that were applied in the course of the election process. They were used for spreading false information about the candidates, thus boosting the number of court cases on protection of honor and dignity. However, the mechanisms of civil law liability for such actions proved to be ineffective.

Election headquarters of presidential candidates furnished the Commissioner for Human Rights false issues of newspapers with the Holos Ukrainy (Voice of Ukraine) and Silski visti (Rural News) logos (683,487 copies in Ternopil) carrying articles intended to discredit specific presidential candidates. On October 31, 1999 law enforcement bodies detained Mr.S.Salov who, as reported by investigation bodies, was distributing leaflets with the logo of the Holos Ukrainy parliamentary newspaper. The leaflets featured a false appeal of Parliament to the citizens of Ukraine on the occasion of a coup d'etat and death of the acting President. Mr.S.Salov was arrested and accused of hindering the citizens’ exercise of their right to vote. However, he did not admit his guilt. Unfortunately, law enforcement bodies failed to establish the authors of these materials against other candidates.

The 1999 presidential election campaign was marred by violence for the first time in Ukraine. On October 2, 1999 an attempt on the life of presidential candidate Natalia Vitrenko was made near the recreation center of the Ingulets Ore Concentration Plant in Kryvyi Rih, Dnipropetrovsk oblast, during her meeting with voters. Natalia Vitrenko was injured as were People’s Deputies N.Lymar and V.Marchenko and other people (35 persons in all). The Commissioner for Human Rights, who communicated by mobile phone with V.Marchenko and clarified the preliminary results of the tragic assault, promptly initiated an inquiry. To investigate the circumstances on site, the employees of the Commissioner’s Secretariat departed for Kryvyi Rih. They visited the two hospitals where the victims were undergoing medical treatment, talked with everyone of them and met with the officers of the local militia department in the district where the crime was committed.

The Commissioner for Human Rights personally met with some of the victims as well as with the suspects of the crime who were detained in the Security Service investigation ward. The law enforcement bodies investigated the case on the basis of Article 58 and items “d”, “g” of Articles 17–93 of the Criminal Code.

Relying on the circumstances disclosed, the Commissioner for Human Rights states that no assistance has been rendered yet to the victims who were unemployed at the moment of the assault. First of all it concerns A.Kushnikova who suffered most – her leg was amputated. Additional social welfare measures need to be taken in relation to the other six victims of the assault, in particular by granting them disability pensions, free medicines, etc. To protect the victims of this tragedy and guided by the requirements of Article 15 of the Law On Ukrainian Parliament Commissioner for Human Rights, the Commissioner submitted an appeal to the Prime Minister with the request to provide additional social protection to the victims and an adequate lifetime pension to Mrs. A.Kushnikova.

In the opinion of the Commissioner the 1999 presidential elections once again brought into sharp focus the problem of residence permits. It directly concerns the interests of many voters, because the places of residence of a substantial number of Ukrainian citizens do not coincide with what is entered in their residence permits. For this reason it is necessary to further improve the system of passport registration and harmonize it with the international standards of the freedom of movement. On many typical occasions the citizens’ right to elections were restricted since their residence permits did not accord with their actual places of residence. The problem was partly settled for persons who stayed at sanatoriums and health resorts, or were temporarily abroad or at sea. According to the Commissioner’s information, the extremely complicated procedure of withdrawing voters from lists of their domicile and entering them in the lists of their actual places of residence led to violations of voting rights of nearly a million citizens.

The Commissioner also focused attention on yet another problem of restriction of the rights of voters who on the date of voting were at their jobs or in remote settlements and therefore could not reach their polling stations. The appeal addressed by Mr. V Romaniuk to the Commissioner was a typical example: he is registered in Luhansk, but works and actually lives in Kharkiv. Similar complaints came from M.Volynets and V.Naumenko from Kyiv and from many others who for the same reasons had no opportunity to exercise their right to free elections.

The Commissioner for Human Rights received complaints from voters stating that they were denied the opportunity to take part in elections because they were groundlessly accused of lacking Ukrainian citizenship and had a limited number of identification documents to prove otherwise (complaints by Mr.N.Kryvorotenko and Mr.T.Mykhiailuk, polling station No. 214, Kyiv).

The cited facts prove that the constitutional voting rights of Ukrainian citizens were partially restricted by the imperfect provisions of the Law On Election of the President of Ukraine, which denied a significant number of Ukrainian citizens the opportunity to exercise their right.

The Commissioner for Human Rights considers it necessary and possible to introduce a computer-based Single State Register of Voters. The register of Household Taxpayers may serve as an example in this respect.

No improvement in keeping records of ballots was observed as compared with the 1998 parliamentary elections. There were cases when the statutory quantity of ballots exceeded the number of voters. The Commissioner received messages about these violations from authorized representatives of presidential candidates in different oblasts. In particular, according to the information from the election headquarters of presidential candidate Vasyl Onopenko, the territorial election commission of electoral district No. 216, Kyiv, received 174,578 ballots from the Central Election Commission under a protocol of October 25, 1999. However, only 170,265 ballots subject to distribution among 89 polling stations were entered in the register. Therefore, 4,303 ballots were not distributed. Such ballots, if used at anyone’s discretion, can result in irregularities of election returns.

Territorial electoral district No. 152 (Rivne oblast) with 172,102 voters received 184,147 ballots. Although there was no additional request, the Central Election Commission issued additionally 4,194 ballots, while the number of voters went down by 6,632 after the final count. A complaint from Chernihiv stated that at several polling stations of territorial electoral district No. 206 a total of 1,955 ballots were issued in excess of what was really needed. The managers of the territorial election commission of the district confirmed this. The head of district election commission No. 14 received 629 ballots for 218 registered voters from territorial election commission No. 68 (Malyn, Zhytomyr oblast). Polling station No. 6 of territorial electoral district No. 210 (Chernihiv oblast) received 3,065 ballots for 2,099 voters registered.

The number of ballots in excess of the actual requirements created objective opportunities for violation of the citizens’ voting rights. Since a ballot is the initial source of the voters’ expression of their will and the basis for potential falsification of election returns, the Commissioner for Human Rights believes that it is necessary that election commissions be made liable under law for issuing ballots in excess of statutory requirements.

During the elections, the Commissioner also had to resolve other extraordinary matters. For example, the voters from Maxymivshchyna hamlet, Poltava oblast, complained that they could not reach the polling station because it was seven kilometers from their homes. A government telegram was sent immediately to the election commission of territorial electoral district No. 147. Due to the Commissioner’s prompt response measures were taken to have the residents of the hamlet exercise their voting right.

The last parliamentary and presidential elections proved that to date no reliably efficient judicial protection of the infringed voting rights by prompt execution of court decisions has been created in Ukraine so far. For example, before the first round of the presidential election the Commissioner received a complaint from O.Luzan, authorized representative of presidential candidate Olexandr Bazyliuk, stating that the National TV Company failed to execute the Supreme Court ruling of October 25, 1999 on providing the candidate air time on the UT-1 TV channel. The ruling of the Supreme Court prescribed that it be executed immediately. The Commissioner for Human Rights promptly informed the Attorney General and Minister of Justice about this fact. For all that, the ruling of the Supreme Court was ignored because, as the Deputy Minster of Justice V.Tertychny informed, the ruling did not even reach the state service for executing court decisions.

Unfortunately, the Commissioner has to state that during the presidential elections some employees of state and municipal institutions were persecuted for participating in the election campaign in support of presidential candidates. In particular, Mr. L.Shagan, manager of the department of culture, in Nizhyn, Chernihiv oblast, appealed to the Commissioner to protect his right, because of the pressure he was subjected to for his participation in the election campaign in support of presidential candidate O.Moroz. The heads of the Central and oblast commissions of the Socialist Party also applied to the Commissioner to protect the applicant’s rights. Rolland G. Smith, Ambassador Extraordinary and Plenipotentiary of the UK to Ukraine, requested that the Commissioner provide a comment on this case.

In response to the appeal, the Commissioner for Human Rights initiated an inquiry into the case of violation of L.Shagan’s rights. A respective petition was forwarded to the mayor of Nizhyn M.Prykhodko, along with a proposal to take appropriate measures. The public prosecutor of Chernihiv oblast was also informed about this fact. Shortly after, Mr.P.Poltok, secretary of the Chernihiv Oblast Committee of the Socialist Party of Ukraine, notified the Commissioner’s Office that the pressure on the applicant was terminated.

The Commissioner received appeals reporting cases of persecution of citizens by bodies of state authority in Znamianka, Kirovograd oblast, the managers of Chudniv district administration, Zhytomyr oblast, as well as by many district and oblast administrations of the Rivne oblast for support of presidential candidates. In response, the Commissioner forwarded relevant petitions to public prosecutors. Unfortunately, public prosecutors more often than not assumed a formalistic attitude to checking the violations by the bodies of state authority.

The Parliament tried to fill in the gaps in the legislation as to liability for violation of election legislation by amending the provisions of articles 127–129 of the Criminal Code of Ukraine. The Law of July 15, 1999 extended the range of corpus delicti of gross violation of election legislation, primarily by election commissions and officials of bodies of state authority, and imposed stricter criminal liability for such infringements.

However, the requirements of Article 50 of the Law On Election of the President of Ukraine and Article 52 of the Law On Election of People’s Deputies of Ukraine concerning liability for their violations remained merely declarative. The overwhelming majority of appeals addressed to the Commissioner concerned violations, for which no liability is provided for under law.

At the same time the Commissioner for Human Rights states that the Law On Election of the President of Ukraine provides the opportunity to exercise control over the correct determination of election returns. Every candidate and political party that nominated their candidate for election could delegate their representatives to the territorial and district election commissions, appoint observers in all election commission during the voting, and take part in determining the election returns. They availed themselves of this opportunity extensively, as evidenced by the following election returns (Table 5.1)

Table 5.1. Voting in the single national one-candidate electoral district during the presidential elections on October 31, 1999

Nonetheless, irregularities in vote counting were registered. The Commissioner received a message about a falsified statement on election returns at polling station No. 247 in territorial electoral district No. 69 in Zhytomyr oblast. According to the information of the Zhytomyr oblast public prosecutor, an examination revealed that on November 14, 1999, the election commission at the polling station in the village of Volosivka, Chudniv district, drew up a statement, according to which presidential candidate Leonid Kuchma fetched 104 votes, while presidential candidate Petro Symonenko 334 votes. A copy of the statement was put up at the polling station as required by the Law On Election of the President of Ukraine. However, for fear of such voting returns the head of the polling station election commission N.Rozmaita and its secretary N.Melnyk drew up a deliberately false statement indicating that the vote was in favor of presidential candidate Leonid Kuchma. The territorial election commission revealed the discrepancy during the final tally and adopted a decision to recount the votes according to the available ballots. The actual returns were confirmed and forwarded to the Central Election Commission. But the public prosecutor of the Chudniv district refused to bring charges against the head and secretary of the election commission in conformity with Item 2, Article 6 of the Criminal Code due to the absence of corpus delicti. In his statement the public prosecutor wrote: “The falsification of the election document did not have any negative consequences, since after the votes were recounted the credibility of the returns was established. The head of the polling station election commission N.Rozmaita and its secretary N.Melnyk committed an illegal action that, though having the formal attributes of corpus delicti, was not intended to influence the results of elections in such a manner.”

The Commissioner for Human Rights applied to the Attorney General with a request to conduct an unbiased examination of the infringement with due process of law. The public prosecutor’s office of Zhytomyr oblast, which examined the case by instruction of the Attorney General’s Office, stated that there were no grounds for bringing criminal charges under paragraph 3, Article 128. Criminal Code. The Commissioner is of the opinion that such a stand of the public prosecutor promotes neither the restoration of justice nor the prevention of falsifying voting documents in the future.

The returns in the second round of voting in the single national one-candidate electoral district during the presidential elections on October 14, 1999 were as follows:

The Commissioner received an appeal and material from the presidential candidate P.Symonenko about electoral rights violations during the second round of presidential elections on November 14, 1999. To protect the citizens’ right to free elections, the Commissioner applied to the Attorney General M.Potebenko with the request to check whether this material had attributes of administrative offence or crimes and to take respective measures as provided for by law. A number of complaints were filed by the election headquarters and authorized representatives of other presidential candidates, serving as the basis for the Commissioner to open inquiries and forward the documents to appropriate bodies for examination.

The Commissioner for Human Rights has to state that the government authorities did not ensure adequate protection of the constitutional electoral rights of Ukrainian citizens during the 1998 parliamentary and 1999 presidential elections and failed to create all the necessary conditions for the free exercise of these rights. The flaws in operative electoral legislation have enough loopholes for violating the constitutional rights of individuals to participate in the management of the state affairs and freely elect and be elected to bodies of local self-government. Electoral legislation as it is today has to exclude subjective assessments of future election returns, while its legal rules have to ensure the rights of citizens and the establishment of justice instead of converting them into tools of political contention. All branches of power will have to rectify this situation by establishing clearly defined liability for infringement of the citizen’s rights during elections.

Translated by Anatole Bilenko

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