Concept on how the feasibility of holding elections in Donetsk and Luhansk can be determined

On May 11, 2021, the Sixth Administrative Court of Appeals declared illegal and annulled the decision of the Central Election Commission on the non-feasibility of holding the first round of local elections of local deputies to certain village, commune and city councils of Donetsk and Luhansk Oblasts, as well as the respective village, commune and city heads on October 25, 2020. The full text of the court ruling is expected in 5 days.

Civil Network OPORA developed a concept to solve the issue of how the feasibility of holding elections in certain municipalities of Donetsk and Luhansk regions should be determined by the responsible authorities.

In order to recognize the impossibility of holding elections in certain Ukrainian-controlled municipalities of Donetsk and Luhansk Oblasts, civil-military administrations must present an analysis of the state of the security situation and the National Security and Defense Council must make a corresponding decision, which will be put into effect by presidential decree.

Brief update on the situation:

On August 8, 2020, the Central Election Commission, citing the opinions of the civil and military administrations of Donetsk Oblast and Luhansk Oblast, stated that it is impossible to hold the first local elections on October 25, 2020 in 10 territorial municipalities in Donetsk Oblast and in 8 municipalities in Luhansk Oblast. In particular, local elections were not held in the de facto territorial capital of Luhansk Oblast, Severodonetsk, and in other rather large municipalities in the two regions (Lysychansk, Volnovacha, Avdiivka, Vuhledar, Toretsk, Stanytsia Luhanska, Popasna, Shchastia, etc.). The CEC's decision attracted the attention of voters in Donetsk and Luhansk regions, especially in the municipalities where voting had taken place in all national and local elections in 2014-2019.

On January 16, 2021, the CEC received the opinions of the civil and military administrations of Donetsk and Luhansk oblasts about security threats to voters on the territory of the 18 municipalities and considered it impossible to hold local elections in these localities on March 28.

OPORA has repeatedly called on the relevant authorities to initiate discussion on legal regulatory options for local elections in Donetsk and Luhansk oblasts and to develop certain criteria for deciding not to hold elections.

The G7 ambassadors also expressed their hope for the resumption of the right to vote in the 18 municipalities.

At the first meeting of the Working Group for the Improvement of Electoral Law under the auspices of the Verkhovna Rada Committee on the Organization of State Power, Regional Development, Local Self-Government and Urban Planning, proposals were made to develop the criteria for not holding elections and to visit Donetsk and Luhansk oblasts to study the matter on the ground.

Improved requirements for the opinion of the CMA (Amendments to the Law of Ukraine "On Civil Military Administrations") 

The opinion of the civil-military administration on the impossibility of holding elections must contain the following points:

1. Analysis of the security situation in the territorial entity (territory of the polling station) listing specific statistical data received from the Security Service of Ukraine, the National Police of Ukraine, the Command of Joint Armed Forces Operations, the State Service for Emergencies, local self-governments and other relevant authorities, which, according to the CMA, do not confirm conditions for holding elections. 

The analysis should include, among other things: 

• Data on the increase / decrease in crime in the period of six months, compared to the last elections in 2015 (2019), and in relation to crimes against national security, according to Chapter І Criminal Code of Ukraine on a given territory (municipality, polling station);
• Data on changes in the line of contact (if directly related to the particular territorial community / polling station);
• Number of grenade attacks and the number of casualties per particular territorial community / polling station during six months related to the armed aggression of the Russian Federation;
• Number of incidents related to the mine threat and the extent of mine trauma to residents of the territory/community;
• Information on all mine-infested areas within the territorial communities used for the needs of the population and civil infrastructure.
• Number of illegal weapons seized from the residents of the territory / local authority during the six months, compared to the previous period;
• Number and description of incidents of armed attacks on the territory of the municipality against police officers, public administration and local self-government officials, local deputies and public figures, and journalists during the six months that were related to crimes against national security;
• Number of cyberattacks against civil and military infrastructure on the territory of the community.

The analysis is conducted in different periods, including the period of holding the preliminary national and local elections. The CMA has the right to restrict access to the analysis data, which may be discussed in a non-public meeting of the National Security and Defense Council. 

2. Information on the existing restrictions in force and specifics of the functioning of the following institutions, bodies and organizations, including mass events and the mode of access to certain areas:

• Local self-governments: regarding the exercise of powers in the fight against aggression;
• Educational institutions: higher educational institutions, schools, preschools, extracurricular exercise groups, etc;
• Health care facilities: hospitals, outpatient facilities, emergency departments, etc;
• Administrative services centers or other agencies;
• Life service facilities and organizations: centralized water supply and water drainage, heat energy supply, hot water supply, electricity supply, gas supply, etc;
• Cultural institutions: Theaters, libraries, art groups and art schools, cultural centers, etc;
• banking institutions;
• public and private notary offices, local authorities of the Ministry of Justice;
• Enterprises and specifics of the work activities of their employees;
• social welfare centers or institutions: territorial service centers, local social welfare offices, rehabilitation centers, etc;
• commercial centers: stores, shopping centers, markets;
• Mass events: Rallies, concerts, mass religious events, sports competitions;
• Freedom of movement of citizens and modes of access to the municipal territory at the time of drafting the opinion;
• Regulation of vehicle control at the time of drafting the opinion.

3. Information on formal actions and decisions of local executive authorities (civil military administrations) and local self-governments, consistent with the level of terrorist threat and other security threats listed in the CMA opinion.

4. Information on the distance of the territorial community (territory) where the elections are not feasible from the actual line of contact with the illegal armed formations on the territory of Donetsk and Luhansk regions. In this information, the CMA also lists the territorial municipalities where the elections will be held, but which are located at the same distance from the battle line as the municipalities where the elections are not feasible. 

5. List of local self-governments, list of public consultations on the possibility of holding elections, with their detailed opinions on the matter.

If the CMA provides an opinion on the possibility of holding elections on a certain territory, it gives only the fact of the existing conditions for safe administration of voting. If it is possible to conduct secure voting in most of the polling stations of the territorial community, no decision can be made on the impossibility of conducting the relevant local elections. 

Where should the opinion of the CMA be submitted?

The opinions of CMAs and RSAs shall be submitted to the Executive Office of the National Security and Defense Council. The Executive Office of the National Security and Defense Council may request additional information from the relevant authorities.

The Law of Ukraine "On the National Security and Defense Council" assigns to the Council the authority to coordinate and control the activities of executive bodies in defense against armed aggression, to organize the protection of the population and to ensure life support, life protection, health care, constitutional rights, freedoms and legal interests of citizens. The Council also identifies potential and real threats to the national interests of Ukraine and considers political and other measures according to the scale of the threats. Thus, the NSDC is an appropriate coordinating authority to consider the security situation in a situation of preparation of municipalities or territories for the start of the electoral process. At the same time, the members of the NSDC have a sufficient degree of political legitimacy and responsibility, which are crucial for deciding on the constitutionality of citizens' rights.

The opinions of the CMA and the information of other competent authorities (in case of additional request of the NSDC office) are taken into account in the NSDC meeting, which results in either approving the decision on the impossibility of elections in certain territorial entities (in certain territories). The decision of the NSDC on the impossibility of holding elections is put into force by the Decree of the President of Ukraine.

Actions of the CEC 

• The CEC shall ensure the enforcement of the Decree of the President of Ukraine on the impossibility of holding elections, without the need to issue a separate decision on the impossibility of holding elections.
• The CEC takes into account the deadlines established by the Electoral Code for holding national and local elections, informs the CEC of the need to submit the opinion to the Executive Office of the NSDC.
• The election process begins in all government-controlled areas of Donetsk and Luhansk regions, in the absence of a decision of the NSDC on the blocking of the election and a corresponding decree of the President of Ukraine.