Polchshykov Igor

Yaroslav The Wise National Law Academy of Ukraine

Question of Legal Status of Election Committees Members from Local Board Elections

On the threshold of next coming elections of village, settlement and city heads a live question on perfection of electoral legislation has been raised. In particular, in our opinion, one should pay attention to such a subject of electoral process as an election committee. The election committee deserves peculiar attention as a collective organ which will directly organize realization of citizens’ active vote during a polling day. In particular, efficiency of commission work relies on the personnel– its members. Legal status and requirements to the members of election committees who carry out organization and preparation of local elections, their rights and duties, the grounds for pre-term expiration of the term of office are allocated in the Law of Ukraine “About elections of deputies of Verhovna Rada of the Autonomous Republic of Crimea, of local board and village, settlement, city heads” (hereinafter referred to as the Law), which, in our opinion, is to answer the Law regulations “About elections of people’s deputies of Ukraine”. By far there have been some disagreements in the legal adjusting of status of election committees members by the given laws.

In particular, as opposed to the Law “About elections of people’s deputies of Ukraine”, the Law does not imply taking an oath by a member of an election committee, though taking the oath is a reason for the proper committee member to acquire procuracy and violation of which is a reason for pre-term expiration of the term of office of the election committee member. The grounds for pre-term expiration of the term of office of an election committee member are also different. Thus, if the Law “About elections of people’s deputies of Ukraine” envisages the grounds for pre-term expiration of the term of office of an election committee member to be a repeated or single gross violation of election Law of Ukraine that is fixed by adjudication or by an election committee of a higher level, whereas according to the Law the grounds for pre-term expiration of the term of office of an election committee member can be any violation of city election Law of Ukraine that is fixed by adjudication. The Law, as opposed to the Law “About elections of people’s deputies of Ukraine”, does not give a clear answer to the question what subject has a right for pre-term expiration of the term of office of a single election committee member, thus in part three of an article 28 only subjects who have a right for pre-term expiration of the term of office of a whole election committee is stated but not its separate members and not only an organ that has created the committee belongs to the subjects but also a court.

Part five of article 28 of the Law deserves a negative mark. The part implies that in case of pre-term expiration of the term of office of an election committee member a new election committee member can be appointed only in case when the number of a committee becomes less than minimum. Part five of article 28 of the Law also does not give a clear answer to the question what is a process of a new member annexation in place of a retired one to an election committee, is the process of annexation started either by a head of rayon board, village, settlement and city heads on the grounds of a corresponding proposal made by local party organizations (blocks) foreseen by article 21 of the Law, or proposed by local party organizations (blocks) foreseen by part 5 of article 28 of the Law?

The Law does not determine the moment when procuracy of an election committee member is considered pre-term expired (either from the moment of ascertainment or appearance of the grounds or from the moment of the appropriate decision made), as well as does not charge the organ, which has made the decision to make the committee, the duty of simultaneous with pre-term expiration of the term of office of an election committee member making a decision to annex to the election committee a representative from the applying subject that has proposed the election committee member candidate whose procuracy has been pre-term expired (in case when the decision about pre-term expiration of the term of office is made a day before a polling day).

Part eight of article 28 of the Law foresees that if an election committee head, deputy head or secretary systematically does not fulfill assumed responsibilities, the appropriate territory or local election committee can appeal to the organ that has created it with a motivated application about its substitution, if this has been voted affirmatively by 2/3 of the committee. But the Law does not determine the process of substitution of an election committee head, deputy head or secretary by the organ that has created the committee, whether it is carried out with ballot procedure foreseen by articles 21 and 23of the Law accordingly (that is quite logical), or without ballot procedure that is by proposing from the local party organization (block) that has been represented by the election committee head, deputy head or secretary.

Thus, the Law regulations that determine a status of an election committee member require essential improvement concerning unification with the corresponding regulations of the Law “About elections of people’s deputies of Ukraine”, as an election committee member is a person who directly takes juridically significant actions which have consequences that together with the actions of other members of other election committees in general influence the result of citizens’ will declaration of a certain territory community.