It has been almost six years since the adoption of the Declaration in support of a set of measures to implement the Minsk agreements, the deadline for their implementation has arrived, but the situation in some parts of Donetsk and Lugansk regions remains permanently tense. The people are dying, enormous resources are being spent for war purposes—they could have been used for the country’s development.
Recently we have been increasingly facing the question why there is no dynamics in peace settlement of the conflict in eastern Ukraine and who is guilty?
Those, who actually started the conflict and try to prevent its fastest settlement by all possible means, accused the Ukrainian side in an unwillingness to make difficult and unpopular political decisions and fulfill the Minsk agreements.
At the same time, periodically Ukraine is "gently" offered a "brotherly" assistance in the form of inefficient bills, "roadmaps" for a political settlement of the conflict and other advices.
In this situation, Ukraine reminds Troy (Ilion), which heroically repulsed the invasion of Greeks (in our situation these are represented by the illegal armed groups along with Russian stray militaries, who, armed with modern military technology and in full ammunition are present on the territory of our country in the "long-term—perhaps, maternity?—leave" and cannot find a way to return to their homes.
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"Trojan horse" under the guise of "unobtrusive assistance", which is a potential danger to the territorial integrity and independence of Ukraine is being offered to us not only by the aggressor country and its satellites—lickspittles but also by some of our "Western friends."
While combining their efforts, they cynically disregard the fact that the political mechanisms of peaceful conflict settlement in the eastern part of Ukraine can not be applied in full, until the basic conditions of the Minsk agreements are met: namely the ceasefire, the withdrawal of heavy weapons, effective monitoring of these processes by the OSCE, the release and the exchange of all hostages and illegally detained persons, based on the principle "all for all".
On the 6th of October, 2015 the Parliament of Ukraine in its Address to the partner states (democratic countries of the world) and international organizations on the intentions of the leaders of so-called "DNR", "LNR" to hold illegal elections in some parts of Donetsk and Lugansk regions, said that Ukraine stands for the holding of free, democratic and transparent elections to the local authorities in some parts of Donetsk and Lugansk regions.
However, these elections, according to Ukrainian parliamentarians, must take place in accordance with the Ukrainian legislation and the international standards in the electoral law.
This fully meets the requirements embodied in a set of measures to implement of Minsk agreements.
Let us try to understand what exactly prevents from holding the local elections in some parts of Donetsk and Lugansk regions? Who is so eager to adopt a new separate law and what for, if for the implementation of the Minsk agreements we need just a single condition—to restore in full the Ukrainian jurisdiction over the territory.
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But, no—it is evident, that the occupants are not going to recover Ukrainian jurisdiction. They want the occupied territory to be a part of Ukraine, but under a condition that it is guided by the individual (read—its own) laws ... Dear compatriots, what do you think about such a hybrid?
To implement this plan the aggressor urgently needs the local elections that would legalize the leaders of the local terrorist groups. They do not care that either Ukrainian legislation—which in recent years they have been increasingly appealing to but they are not guided by it—nor the international standards in the electoral law do not foresee the possibility of free and democratic elections in hostile conditions or during the occupation of the territory in which they should be conducted.
In order to accommodate all the peculiarities of the current situation (which significantly differs from the situation in peacetime) in some parts of Donetsk and Lugansk regions, different laws for the organization and holding of the local elections are being offered. The local elections are foreseen by the Minsk agreements, but, currently, the most famous of these is the Project on the modalities of the local elections in some parts of Donetsk and Lugansk regions, authored by Pierre Jean Louis Achille Morel (he is also called the Coordinator).
The authors of this publication propose to consider the most controversial provisions of the Project through the prism of compliance with the legislation of Ukraine and with the international standards in the field of electoral rights of people.
However, it should be noted that the author of the Project (we will call it "Morel’s Plan") notes that the seven key issues, that require legislative regulation, still have fundamental differences that were not overcome during lengthy negotiations. Possible solutions were not identified as well.
"Morel’s Plan" in its latest edition (working translation is dated by the 31.05.2016) has an introductory part and 12 points, including:
• Agreed definition of administrative units;
• Election system;
• The right to vote / eligibility criteria;
• Administration of elections;
• Registration of voters and candidates;
• Formation of election commissions;
• Campaign financing;
• Civilian and international observers;
• The election complaints and appeals;
• Principles of law and order;
• The final positions.
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In the Introduction to this document, the Coordinator says that the local elections in eastern Ukraine will be held in 2016 in accordance with the national law. However, in his opinion, their procedures have to be written in a special Law.
From that very moment, significant differences in the development of conceptual approaches to the legal regulation of the local elections in some parts of Donetsk and Lugansk regions began to appear.
As it seems, the main reason for these differences is that the vast majority of the provisions of the future law, proposed by the Coordinator, are contrary to the Constitution and the laws of Ukraine and do not meet existing international standards in the field of implementation of the election law.
For example, the Project could limit the right to elect and be elected for those citizens of Ukraine who were forced to relocate to other regions of Ukraine.
At the same time, there is the option of the vote outside Ukraine, which does not meet the generally accepted principles of the local elections.
There are some other positions of the Project, which are not acceptable for Ukraine, as they violate the principles of free participation of the media, political pluralism and a multiparty system as well as the equality of rights and opportunities to participate in the electoral process.Donbas militants have got 702 tanks, 1,000 artillery systems - Expert
Here are some examples regarding the nature of the Morel Project’s controversial issues.
Thus, according to the Coordinator, the right to vote during the local elections in some parts of Donetsk and Lugansk regions must belong to the citizens of Ukraine, whose voting address belongs to the respective territorial units.
He believes, that temporarily displaced persons and refugees, whose residence is registered in some parts of Donetsk and Lugansk regions—if not re-registered in other administrative units—should have the right to vote.
Thus, the citizens of Ukraine who, because of fierce fighting in the east of the State, were forced to leave their places of residence and—in accordance with the Article 6 of the Law of Ukraine "On freedom of movement and choice of residence in Ukraine"—after the relocation had been registered at the new place of residence, will not be able to participate in the local elections in some parts of Donetsk and Lugansk regions.
On the formal side, it is supposedly correct: these people are no longer the members of respective local communities and therefore have no right to participate in the local elections at the place of the previous residence.
But, by offering to regulate the issue of the local elections in some parts of Donetsk and Lugansk regions, the Coordinator appeals to the special circumstances that lead to the adoption of a special electoral law.
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However, when it comes to electoral rights of the internally displaced persons, he strongly "forgets" about these extraordinary circumstances which forced people to relocate!
Moreover, many of these migrants intend to return to their homes after the conflict and once again become the members of the respective communities.
As for the abovementioned category of citizens of Ukraine, "Morel’s Plan" contains only a few sentences. In particular, that "...the measures will be taken to facilitate their return to their usual place of residence. Those who will not be able to return will be allowed to exercise their right to vote in mutually agreed areas both in Ukraine and abroad !!!
In our view, the Coordinator’s position on this issue has no clarity of formulation. Some proposals, made by the Coordinator, regard the solution of problems which by no means are regulated by electoral law norms.
The desire of Monsieur Morel to organize the vote during the local elections at the polling stations, is, to put it mildly, illogical.
It is not difficult to guess, what country will gladly agree to give its "brotherly assistance" to the local elections, moreover, if it is "in accordance with the national legislation of Ukraine and the adherence to the international standards in the field of public relations" ... One can easily anticipate the extremely active voters in these election centers, as well as the actual outcome of these elections, which, taken together, allow us to predefine the "favorites" or even the "victors" of the race! But Monsieur Coordinator is not too worried about it...
The attention should also be paid to the fact, that by offering to organize voting during the local elections at polling stations, Monsieur Morel does not consider it necessary to take care of ensuring the rights of the election’s participants to judicial review of decisions.
In this regard, there is one rightly question: which court will whey apply for protection? Waiting for the response, we would like to remind Mr. Coordinator of the course of the trial concerning "the Kremlin’s prisoners"’ cases—Nadija Savchenko, Oleg Sentsov, Olexandr Kolchenko, Mykolai Karpyuk, Stanislaw Klyh, and Sergei Litvinov.
Should we wait for impartiality and fairness of the judicial procedures in such courts?
Monsieur Morel bypasses the issue of feasibility of active electoral rights of internally displaced persons as well. Although in settling this issue, he does not need to ask for help from the northern neighbor.
It is enough to provide additional polling centers in the areas where such persons live now and to create appropriate conditions for the formation and updating of voters’ lists, campaigning, voting process, counting, complaints and so on.
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In addition, in our opinion, there should be a proper differentiation and legislative strengthening for the implementation of active electoral rights of the internally displaced persons and the refugees, living in the territories of the other countries, mostly in Russia).
It is clear, that the citizenship of the internally displaced persons in the territory and under the jurisdiction of Ukraine is obvious. As for the refugees, staying in Russia, their status in the context of local elections in some areas of Donetsk and Lugansk regions appears at least doubtful.
It's no secret that the majority of them received the Russian citizenship. In this regard, it should be noted that according to the UN Convention on the Status of Refugees, a person with a dual nationality, who lives in one of the States whose nationality he (she) has, can not be considered a refugee. But this provision of the international legal document is completely ignored by Mr. Coordinator!
It should also be noted that now the competent authorities of Ukraine do not know for certain, how many Ukrainian citizens went to Russia and received the Russian citizenship.
Given the fact that Russia—which, in our opinion, is a party to the conflict—is accounting the refugees, Ukraine should have to verify the numbers’ authenticity, but, unfortunately, as of today, there is no such possibility.
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However, the refugees who are in Russia, have not been on consular registration in the consular offices of Ukraine and do not support (or perhaps are unwilling to support) the contacts with the official representatives of our country.
It should also be borne in mind, that in terms of implementation of the Minsk agreements (the cessation of hostilities, withdrawal of weapons and setting up the peace process, without which there can be no possibility of any elections in these areas), there should be provisions for the creation of conditions for the return of the refugees to their residence place in Ukraine.
If under such conditions these people are not willing to return, it will indicate their intention to continue to reside in Russia.
It is clear, that in this case, they can not participate in the local elections under any circumstances. But here, Monsieur Morel has his own vision of the situation, which, to put it mildly, does not coincide with the interests of Ukraine, about which he allegedly is really concerned...
It seems appropriate to draw attention to the fact, that the Article 141 of the Constitution of Ukraine provides for the participation in the local elections, only to the citizens of Ukraine, who live (or have housing) in the relevant territorial community. The Law of Ukraine "On freedom of movement and choice of residence" defines as a residence "home, located in the administrative unit in which a person lives permanently or temporarily."
Having taken this into account, it is obvious is that people who for a long time (for about two years) have been living in another State, can not be considered as residing in their houses in the respective village, town, city in Ukraine, and thus, according to the Constitution of Ukraine, they have no right to vote in the local elections.
This applies not only to a special category of refugees but also to all citizens of Ukraine, who at the time of the local elections are abroad (including employees of diplomatic missions of Ukraine abroad).
However, Morel’s Plan does not take into account these provisions of the Ukrainian legislation and the factual circumstances as for the participants in the upcoming local elections in some areas of Donetsk and Lugansk regions.
In view of the foregoing, there is no to wonder that it will not be possible to reach a compromise on this issue.
The issue of ensuring the implementation of passive suffrage also remains unresolved. For its solution the Coordinator prompted so-called "limit of sedentary", the essence of which is as follows.
For those who will wish to be elected "... the head off the territorial unit the requirement will be applied—the requirement of residing in the territory for five years, including two years before the election."
The conditions, proposed by Monsieur Morel, seem to make it impossible to be elected for those, who had to leave their local communities and move to other regions of the country because of their loyalty to Ukraine.
Instead, the introduction of two-year obligatory residency on the eve of the elections provides an opportunity to be elected for those, who left Ukraine, but subsequently returned to the territory uncontrolled by the country's legitimate authority.
It is obvious, that the Ukrainian side should not agree with this proposal. Therefore, the attempts to reach a consensus on this issue have failed so far.
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Equally fundamental are also the disagreements on elections’ administration. For the organization of elections in some areas of Donetsk and Lugansk regions, the Coordinator proposed a Special Coordination Committees (hereinafter—SCC), composed of the representatives appointed by the Central Election Commission (hereinafter—CEC).
In our view, there is no need in the creation of the SCC at all. In accordance with the current Ukrainian legislation that body, even if established, can have only an advisory function and should not have any impact on the local elections.
As for the issue of inclusion the members of the CEC to the SCC, we consider it necessary to note the following. In accordance with the Ukrainian laws, CEC is a permanent collegial public body which operates under the Constitution of Ukraine, a special law and other legislative acts of Ukraine.
The Article 19 of the Constitution of Ukraine stipulates that public authorities and their officials are obliged to act only on the basis, within the powers and in the manner, envisaged by the Constitution and the laws of Ukraine.
Thus, the powers of the CEC and its members are established by the laws of Ukraine, including the Special Law of Ukraine "On the Central Election Commission."
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This document defines the establishment, legal status, basic principles of the CEC, the responsibility of which concerns the provision of elections’ and referenda organization and conduction in Ukraine, as well as ensuring the implementation and protection of electoral rights of Ukrainian citizens.
According to paragraph 3 of the Article 7 of this Law, a member of the Central Election Commission "... shall not be a people's deputy of Ukraine, or have another representative mandate, or be a member of the other election commissions or other commissions on referenda..."
Thus, considering the provisions of the law, even in the case of SCC creation, no member of the CEC may be included in its composition, much less fulfill the SCC functions.
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Then Monsieur Coordinator continued "the extravaganza of wonderful suggestions ..." In his view, the basis for the issuance of ballots during the local elections in some areas of Donetsk and Lugansk regions should be "... a passport or other document with a photograph, used for personal identification, issued by the state authorities of Ukraine."
We hope that by the word "passport" Monsieur Morel meant the passport of a citizen of Ukraine and not the passport of any other country.
According to the Coordinator, in the absence of such a document, in order to obtain a ballot,a person can present any other one, if only it issued by the government and including a photo of its holder.
Thus, Monsieur Morel did not seem to mind the current requirements of the paragraph 7 of the Article 77 of the Law of Ukraine "On Local Elections", which establishes that in order to have the possibility of voting at a polling station, a voter has to present one of his (her) documents referred to in part 2 of the Article 3 hereof.
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The abovementioned provision states that the document which a) identifies the person; b) is a proof of citizenship; c) confirms the place of residence of a voter during the local elections can be: 1) a passport of s citizen of Ukraine; 2) a temporary certificate of a citizen of Ukraine (for persons who recently accepted the Ukrainian citizenship).
Thus, a voter is given a ballot only when a member of the polling station will ensure and control: 1) the personality of the voter; 2) the presence of his (her) Ukrainian citizenship; 3) that a person who came to the polling station to vote, is a member of the territorial community.
By providing a ballot to a person who is not entitled to receive it, a member of the polling station is responsible for by the Article 158-1 of the Criminal Code of Ukraine, which provides for punishment by imprisonment for a term from five to seven years with the disqualification to hold certain positions or to be engaged in certain activities for a term from two to three years.
But Monsieur Morel does not care for that! As they say, saving the drowning is his personal problem... But there is no need to create yet additional problems to the drowning poor person!
In this publication, we stopped only on certain points of legislative support to the local elections in some areas of Donetsk and Lugansk regions, which have the most obvious fundamental differences in their solving process.
In fact, the number of problems, in solving which no consensus has been reached, is much bigger.
In particular, these are the following issues: the definition of the electoral system, under which these elections take place; the nomination and the registration of candidates for elective office; the participation of political parties in the electoral process; the formation of election commissions; the mass medias’ coverage of the electoral process; the funding of elections and election campaigns; the access given to international observers in order to monitor the election process, the summing the results of voting and many other issues.
Of course, restoring the functioning of the communities in some areas of Donetsk and Lugansk regions and the creation of appropriate conditions for the exercise of powers of the local self-government to the full requires among other conditions, the local elections in these areas.
However, according to our deep conviction, these elections shall be conducted in accordance with the international standards in the electoral law and the principles enshrined in the current legislation of Ukraine.
In the introduction part of the Project, Monsieur Morel draws a special attention to the modalities of the local elections in some areas of Donetsk and Lugansk regions.
However, in this document, there is a significant number of provisions that blatantly contradict the international standards on election law and the legislative acts of Ukraine governing this relationship.
So, Monsieur Morel reveals his inconsistency in the matters of legislative regulation of the local elections in some parts of Donetsk and Lugansk areas and stubbornly imposes his "Trojan horse" to Ukraine.
We believe that the implementation of the proposals of this good monsieur will promote the legalization in local government entities those people, who provoked the conflict in eastern Ukraine and still continue to escalate the situation.
The approach, proposed by the Coordinator to the problem’s solving, is categorically unacceptable for Ukraine.
Therefore, we consider it necessary to draw the attention of the Ukrainian society to problems of legal regulation of the local elections in some areas of Donetsk and Lugansk regions. We invite people to jointly express their disagreement with the Project on modalities of these elections, proposed by Monsieur Morel.
We are deeply convinced that Ukrainian people are able to figure this undoubtedly complicated issue out—without the help of "sincere friends," without "unobtrusive assistance" which really resemble the infamous "Trojan horse."
It should be noted that the draft law on the local elections in some areas of Donetsk and Lugansk regions (by Morel’ authorship or written by anyone else) could be proposed for public comment or even be submitted to the Verkhovna Rada of Ukraine in due course.
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But in order to ensure that such a law is backed by the majority of deputies, not to mention the fact that it should be accepted by the Ukrainian society without causing the wave of protests all across Ukraine, it must clearly identify the conditions under which these elections may occur.
And these are as follows:
• stable and long-term (at least 3 months) cessation of hostilities;
• withdrawal of heavy weapons;
• ensuring of effective monitoring of these processes by the OSCE, including the observers unimpeded access throughout the conflict zone, including temporarily uncontrolled borderline between Ukraine and Russia in the conflict zone;
• the release and exchange of all hostages and illegally detained persons based on the principle "all for all";
• withdrawal of Russian Armed Forces, military equipment, mercenaries from Ukrainian territory under the supervision of the OSCE, disarmament and disbandment of the illegal armed groups, including the 1st and the 2nd Army Corps;
• introduction in Ukraine of the Armed International Police Mission that will provide control over the site of Ukraine's border with Russia in the conflict zone, as well as the safety of the local elections in some areas of Donetsk and Lugansk regions on the stages before, during and after the local elections.
All these facts should receive appropriate documentary evidence, made by trilateral contact group with participation of the OSCE or by an authorized international organization.
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Essentially, this means the implementation of the Minsk agreements. According to their logic and according to the practice of international peace and security, the first step (always a peace settlement and the resolution of political issues) is directly proportional to its success.
It should also be noted that together with the draft law on the local elections in some areas of Donetsk and Lugansk regions (even better—before its approval by the Supreme Council of Ukraine) we must legally resolve the issue of preventing the prosecution of persons, involved in the events in eastern Ukraine, and elimination mechanism of participation in the elections of persons whose behavior has caused substantial damage to the vital interests of Ukraine (who voluntarily served in foreign armed forces, including in breakaway republics) or who voluntarily acquired the citizenship of another country (including the self-proclaimed ones).
In particular, such a mechanism may provide for a procedure of deprivation of the Ukrainian citizenship in accordance with international law (primarily, the European Convention on Nationality, 1997).
We are not very hopeful that Monsieur Morel will be acquainted with this publication and will cease implementing his pseudo pro-Ukrainian plans.
However, we are confident that the Ukrainian society can hinder the implementation of his shiftless approaches to solving the conflict in the Eastern Ukraine. If this gentleman and other "true friends" Ukraine are not satisfied with the options for a political settlement based on the principles of Ukrainian and international law, we can offer the referendum, during which Ukrainian people will express their attitude to the "hybrid" future of their country.Vladimir Timoshenko,
Doctor of Law, ProfessorOlga Reznikova,
Head of Department of National Security of the
National Institute for Strategic Studies,
Ph.D. in EconomicsSergey Driomov,
Leading Researcher of
Department of National Security of the
National Institute for Strategic Studies,
Doctor of Law