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Political Points for 19 – 26 March 2018

26.03.2018

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua




The Verkhovna Rada did not express the desire to release public activists from the responsibility of e-declaration


1. CPLR expert opinion                  

On March 23, 2017, the Verkhovna Rada voted (No.1975-19) for the abolition of necessary submission of e-declarations by some military servants, but at the same time, it required the submission of declarations by members of civic organizations.

On March 27, 2017, the President signed the above amendments to the Law “On Prevention of Corruption”, but later he requested the deputies to cancel the requirement on the obligation of public activists to submit electronic declarations.

2. Respective authorities counter-point/argument

On March 22, 2018, the Chairman of the Verkhovna Rada of Ukraine tried several times to include in the agenda the draft laws No. 8120 and No. 8120-1, which are supposed to delay the submission of electronic declarations by public activists, as well as the draft law No. 6271 providing for the cancellation of declaration by the activists. However, the MPs have not voted for any of these draft laws.

3. CPLR assessment of the authorities counter-point

The Center for Policy and Legal Reforms has repeatedly expressed its opinion on this issue: the main arguments are set out in the CPLR Opinion (dated April 10, 2017).

4. Related legislation/instructions which require the authorities act in a certain manner

Amendments introduced by the Law No.1977-19 to Articles 1, 3, 45, 46, 49, 60 of the Law “On Prevention of Corruption”, contradict Part 3 of Art. 22, Articles 24, 32, 34, part 2 of Art.43, Articles 64 and 67 of the Constitution of Ukraine.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The provisions on the obligation of public activists to submit electronic declarations should be abolished in view of the fact that they contradict the rule of law in terms of violation of legal certainty, the right to freedom of association, the principle of equality and the prohibition of restrictions based on the type of activity, etc.

In addition, making public activists obliged to declare will violate the privacy right, stipulated by Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.



On March 22, 2018, it became known that the NACP does not comply with the recommendations of the European Commission aimed at increasing the effectiveness of the verification of electronic declarations


1. CPLR expert opinion

Based on the results of the in-depth analysis of the procedure of electronic declarations verification by the NACP, as conducted by the experts of the European Commission, a number of problems were identified in this area. Experts from this international organization have prepared 19 recommendations aimed at solving these problems. However, the NACP has considered only a few of them, and so the procedure for checking electronic declarations remained ineffective.

2. Respective authorities counter-point/argument

The NACP’s opinion on this issue is unknown.

3. CPLR assessment of the authorities counter-point

4. Related legislation/instructions which require the authorities act in a certain manner

There are no official documents that would oblige the NACP to act in this way. However, this should have been done because the recommendations were developed solely for the purpose of improving the NACP’s activities and were based on the analysis of many years of experience in a number of other countries on relevant issues.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The NACP should carefully study the recommendations received, implement all those that can be implemented in current situation and with current possibilities, and start actively working on the launch of an automated system for verifying such declarations.



Opinion on the draft Law of Ukraine "On the Election of People's Deputies of Ukraine" № 7366-3


1.  CPLR expert opinion

In fact, March and April of 2018 are the last possible months for the adoption of an electoral reform, which is one of the most important for Ukrainian society. This should be done right now in order for the next parliamentary elections to be properly conducted by the Central Election Commission under the new rules.

The Verkhovna Rada of Ukraine deliberately sabotages this process for several years now. Apart from the Draft Election Code No. 3112-1, which was adopted in the first reading, there are other draft laws on electoral reform in the Parliament.

The Draft Law of Ukraine “On the Election of People’s Deputies of Ukraine” No. 7366-3  (hereinafter referred to as the Draft Law) was registered on December 20, 2017 as an alternative to the  Draft Law No. 7366. The Draft Law was elaborated by MPs V. Chumak, N. Novak, D. Dobrodomov, C. Leshchenko, Y. Derevyanko, I. Popov and B. Bereza.

The provisions of the Draft Law, like of the draft law No. 7366-2,  are almost entirely based on the provisions stipulated by the draft law No. 1068-2, which was rejected by the People’s Deputies in 2017. Insignificant differences exist only in the territorial organization of the elections and in the level of the electoral threshold.

2.  Respective authorities counter-point/argument

None.

3. CPLR assessment of the authorities counter-point

Under the proportional system envisaged by the Draft Law, parliamentary elections will be held in 28 constituencies, the boundaries of which generally correspond to the boundaries of the regions. In the parliamentary elections, each party will put forward two types of lists – a single list of candidates in the national constituency and lists of candidates in the respective electoral regions from which a single list of candidates will be formed. In the electoral regions, voters will vote for the respective regional lists, rather than a single list of candidates. The voting will be exercised by typing the serial number of the list to the ballot paper. In addition, a voter may also optionally vote for a particular candidate included in the list for which he/she votes (also by typing his/her serial number to the voting bulletin). A voting bulletin that does not specify any serial number in the list will be considered invalid.

In accordance with the Draft Law, only those parties that were supported by at least 3% of voters on their regional lists in the national constituency shall be entitled to participate in the distribution of deputy seats. After identifying the parties that have overcome the electoral threshold, the CEC shall determine the election quotas – the number of votes needed to obtain one seat. This quota will be determined by dividing the number of all votes in the national constituency for all the regional lists of parties that have overcome the electoral threshold to the constitutional composition of the Verkhovna Rada of Ukraine (450). After this, the CEC will determine the number of seats that each regional party list will receive. With this purpose, the number of votes cast in the electoral region will be divided by an election quota, and the number received will be rounded to an integer. These seats will be received by candidates from a party in the electoral region who received the largest number of votes in their support. Unallocated seats of a party in the regions will be  given to a list of candidates from the same party in the national constituency. The seats in the list of party candidates in the national constituency will be replaced in the order of precedence, as determined by the list; while the candidates selected in the electoral regions will not be taken into account.

This Draft Law proposes to establish a nationwide quota for the distribution of seats. To some extent, this is an unusual model for systems with regional constituencies. However, in the Ukrainian context the proposed method has several advantages:

– Equal number of voters in the electoral constituencies is not critical for the formation of electoral constituencies.

– The price of a seat is the same throughout Ukraine.

– The national quota prevents the regionalization of parties.

The second feature of the Draft Law is that it proposes to introduce a two-stage method of the distribution of seats. This means that the number of compensatory seats that will be distributed at the national level will be quite significant. In Ukrainian conditions, this can be considered as an advantage rather than a disadvantage. Firstly, the leadership of political parties retains influence on regional party organizations. From 11 to15 seats (10 – 15%) will be distributed to the leading parties at the national level. Instead, for the borderline parties, the proposed system is in fact a system with closed lists, since in the electoral constituencies they will not, for the most part, gain the votes necessary to obtain at least one seat.

In summary, the proposed system:

– Offers a balance between regional party organizations and party leadership.

– Stimulates the nation-wide nature of the parties.

– It does not preserve the existing party system and gives a chance to small parties to get to the Parliament.

The third feature of the Draft Law is the method of moving the individual candidate in the regional list. For this purpose, the percentage of votes cast for him/her is established in comparison with the number of effective voters in that region. This percentage is determined precisely to the whole by rejecting the fractional part. That is, in order for a candidate to move above, it is necessary to score 1% more votes than a neighboring candidate in the list. Although this method reduces the degree of openness of the list, at the same time it prevents unfair intra-party competition.

For the Expert Opinion of the CPLR on the Draft Law on the Election of People’s Deputies (Majority System) No. 7366-3, see the link.

4. Related legislation/instructions which require the authorities act in a certain manner

The introduction of a proportional electoral system with open party lists corresponds to the Coalition Agreement and the Plan of Legislative Support to Reforms in Ukraine.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Therefore, the proposed Draft Law is fully compliant with the Coalition Agreement, the recommendations of international organizations (PACE Resolution No. 1549 (2007), PACE Resolution No. 1755 (2010), Opinion of the Venice Commission CDL-AD (2011) 037 dated October 17, 2011), duly protects the rights of internally displaced persons and Ukrainians living abroad, allows the election of the constitutional composition of the Verkhovna Rada of Ukraine.

At the same time, the Draft Law has weaknesses concerning the introduction of a rigid gender quota, the lack of restrictions on the size of the party’s election fund and restrictions on political advertising on television and radio. In case of the rejection of the draft Election Code, we recommend to support this draft law in the first reading under condition of its further elaboration.