Oct. 17, 2015, 3 a.m.
(PHOTO: Intent)
Local elections will be held this fall, but not all Ukrainian citizens will be able to participate due to the Soviet tradition of a passport stamp
The new law on local elections, adopted on July 14, 2015, does not take into account the realities of today and disenfranchises some citizens: internally displaced persons (IDPs) are unable to choose the people who will govern their new "home".
The Constitution of Ukraine guarantees everyone an equal right to access to government. In particular, this right is realized through elections. According to Article 71 of the Constitution of Ukraine, local elections are free and shall be held on the basis of universal, equal and direct suffrage by secret ballot.
Article 70 of the Constitution of Ukraine provides that citizens of Ukraine who have reached the age of eighteen on the day of elections and referendums, except for citizens who have been declared incapacitated by a court, have the right to vote in elections and referendums.
On July 14, 2015, the Law of Ukraine "On Local Elections" (the "Law") was adopted, which defines the basic principles, organization and procedure for the election of deputies to the Verkhovna Rada of the Autonomous Republic of Crimea, regional, district, city, district in cities, village and settlement councils, village, settlement and city mayors and starostas.
Article 3 of the Law provides for three main conditions for participation in local elections: eligibility to vote in accordance with Article 70 of the Constitution of Ukraine, membership in the relevant territorial community and residence within the relevant electoral district.
According to Article 1 of the Law of Ukraine "On Local Self-Government in Ukraine," a territorial community is a group of residents united by permanent residence within a village, town, or city that is an independent administrative unit, or a voluntary association of residents of several villages that have a single administrative center. Thus, a citizen's affiliation with a respective territorial community is determined by the fact of his or her permanent residence on its territory.
In the new law on local elections adopted in 2015, the legislator limited the interpretation of "belonging to the relevant territorial community" and "residence within the relevant electoral district" by narrowing them to the registered place of residence of the person.
Article 3 of the Law of Ukraine "On Freedom of Movement and Free Choice of Place of Residence in Ukraine" (hereinafter - the "Law on Freedom of Movement") defines a place of residence as a dwelling located on the territory of an administrative-territorial unit where a person resides permanently or temporarily. The same article stipulates that documents containing information about a person's place of residence include, among other things, a certificate of registration of an internally displaced person.
A voter in the relevant local elections may use his/her vote only at one polling station where he/she is included in the voter list. According to the Civil Code of Ukraine, an individual may have several places of residence (Article 29(6)). If a person has several places of residence, he or she must choose at which polling station he or she wants to exercise his or her right to vote.
However, the Law refers not only to the place of residence, but also to the registered place of residence. The Law "On Freedom of Movement" provides for the possibility of registering a place of residence (Articles 3, 6, 10). Registration is the entry of information into the Unified State Demographic Register and into a passport document about a person's place of residence or place of stay, indicating the address of the dwelling. Thus, a person's place of residence becomes registered after the address is entered into the Unified State Demographic Register and the passport document.
Thus, the registered place of residence is only the place of residence, the information about which is entered in the person's passport.
According to the Law of Ukraine "On Ensuring the Rights and Freedoms of Internally Displaced Persons", an IDP is a citizen of Ukraine permanently residing in Ukraine who was forced or who left his/her place of residence as a result of or in order to avoid the negative consequences of an armed conflict, temporary occupation, widespread violence, massive human rights violations and natural or man-made emergencies.
According to Article 8 of the Law, IDPs exercise their right to vote in the elections of the President of Ukraine, people's deputies of Ukraine, local elections and referendums by changing their voting place without changing their electoral address in accordance with part three of Article 7 of the Law of Ukraine "On the State Register of Voters". At the same time, the Law provides in Article 30 that the provisions of part three of Article 7 of the Law of Ukraine "On the State Register of Voters" do not apply to local elections. Thus, we are faced with a conflict, and the application of this or that provision will be decided in a particular case by the court.
According to the Letter of the Ministry of Justice of Ukraine "On the Practice of Application of Legal Norms in Case of Conflict" of 26.12.2008, in case of inconsistency between the norms issued by the same law-making body, the act issued later shall be applied, even if the earlier act has not lost its validity.
The UN Guiding Principles on Internal Displacement stipulate that IDPs shall not be discriminated against on account of their displacement in the exercise of their right to vote and to participate in public and public affairs, including the right of access to the means necessary for the exercise of this right, and the right to participate on an equal basis in community affairs (principle 22 d).
According to the Law, IDPs are deprived of the right to participate in local elections. They cannot be included in the voter lists at the address of their actual place of residence. They are also deprived of the opportunity to exercise their right to vote on the territory of the Autonomous Republic of Crimea and the city of Sevastopol, parts of Luhansk and Donetsk regions not controlled by the Ukrainian authorities, as local elections to Ukrainian authorities will not be held on these territories.
As a result of the restrictions imposed by the legislator, IDPs are effectively deprived of the opportunity to participate in local elections. At the same time, their lives depend to a large extent on decisions made by these bodies, such as the quality of roads, urban infrastructure, development and financing of kindergartens, schools and hospitals, etc. Due to the current legislation, IDPs can neither exercise their right to vote nor stand for election to local authorities
As a result of displacement, IDPs become not "guests" of a particular territorial community, but its full members. Their responsibilities towards the community are no different from those whose place of residence is registered in a particular electoral district and who have the appropriate stamp in their passports. IDPs pay taxes and fees at the place of their actual residence and participate in public hearings.
While the majority of IDPs have been living in the "new" place for almost a year and a half and are safely members of the territorial community at their actual place of residence. The only reason for the difference in their treatment is the absence of a stamp in their passports that turns their actual place of residence into a registered place of residence.
Despite the fact that the actual place of residence of IDPs is not registered in their passports, they still have a document established by law that confirms their place of residence. This document is a certificate of registration of an internally displaced person.
The state does not provide any explanation as to why it is expedient to restrict the voting rights of IDPs.
The Guiding Principles on Internal Displacement provide for the general protection of IDPs from discrimination on the grounds of displacement (principles 1, 2, 4, 22).
The Law "On Ensuring the Rights and Freedoms of Internally Displaced Persons" prohibits discrimination in the exercise of any rights and freedoms on the basis of being an IDP.
The Law "On Freedom of Movement" provides that registration of a person's place of residence or place of stay, or its absence, cannot be a condition for the exercise of rights and freedoms provided for by the Constitution, laws or international treaties of Ukraine, or a ground for their restriction.
In addition, there are a large number of people in Ukraine who do not actually live at their registered place of residence. This group of persons is also deprived of the opportunity to influence the management of the territorial community in which they actually reside. According to Article 30 of the Law, a voter who is outside the settlement in which he or she resides on election day does not participate in local elections, thus, these people are also deprived of the opportunity to elect managers in the community where they are registered.
The Constitution of Ukraine provides all citizens with the right to access to government, including through participation in local elections. Article 1 of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms provides for a general prohibition of discrimination: "The exercise of any right provided for by law shall be ensured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, membership of a national minority, property, birth or other status." Thus, such a discriminatory approach of the legislator, which restricts the right of a certain group of persons on the basis of their registered place of residence, may constitute a violation of Article 1 of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
Most European countries set the fact of permanent residence in the territory of the respective electoral district as the main condition for participation in local elections as a voter.
Some countries, such as Estonia and Finland, allow non-citizens to participate in local elections, but they must be permanent residents of the municipality or commune. For example, in Finland, a non-citizen can vote in local elections if he or she has lived in the commune for at least 51 days before the election day. If the voter is not a citizen of an EU country, Norway or Iceland, an additional condition is set - continuous residence in Finland for two years. In Estonia, the right to participate in local elections is granted to all Estonian citizens and citizens of other EU member states who are residents of the relevant municipality.
According to the French electoral law, a person may be included in one of the lists of local voters at his/her request if he/she (1) has a real residence in the commune or has lived there for at least 6 months; or (2) does not live in the commune, but has paid direct taxes to the commune budget five times a year (the second spouse may also be included in the lists on this basis); or (3) is forced to live in the commune due to his/her public service.
Thus, in accordance with the requirements of European legislation, the main condition for participation in local elections is the fact that a person resides in the relevant territory, not the registration of residence.
Let us analyze the differences relevant to the subject matter of the article between the Law of Ukraine "On Elections of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, Local Councils and Villages, Town and City Mayors" (law of 10.07.2010, expired on 08.08.2015) and the Law "On Local Elections" (law of 14.07.2015).
As mentioned above, a registered place of residence is a place of residence, information about which was entered in a person's passport and the Unified State Demographic Register.
The Law "On Freedom of Movement" stipulates that registration of a place of residence at the request of a person can only be carried out with the simultaneous deregistration of the previous place of residence.
Thus, if IDPs choose to participate in local elections, they must give up their registered place of residence in the occupied territory.
Thus, for IDPs, the previous law was much more successful, as it provided that a citizen's affiliation with the relevant territorial community is determined by his or her place of residence, which can now be easily confirmed by a certificate of registration of an internally displaced person. The law was adopted in the summer of 2015. The occupation of the Crimean peninsula by the Russian Federation took place in the spring of 2014. Since then, the first IDPs began to appear in Ukraine.
In a year and a half, their number reached one million people. They were forced to leave their homes and change their permanent place of residence.
When the law was being adopted, the authorities could not but know about the large number of people who actually did not live at the place of residence registered in their passports. However, the legislator's ignoring this fact led to an unconscious restriction of voting rights and discrimination against a large segment of the population.
A legislative solution to this problem will restore and protect the rights not only of IDPs, but also of a large number of people who do not actually live at the address of their registered residence.
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