Kyiv
March 25, 1998 Case No 13/1071-97, 1-22/98

Members (judges) of the Constitutional Court who heard the case:

Ivan Artemovych Tymchenko – presiding judge, Volodymyr Denysovych Vozniuk, Pavlo Borysovych Yevhrafov – reporting judge, Mykola Ivanovych Koziubra, Mykola Ivanovych Korniyenko, Mykhaylo Vasyliovych Kostytsky, Liudmyla Fedorivna Malynnykova, Petro Fedorovych Martynenko, Oleksandr Mykolayovych Myronenko, Vitaliy Ivanovych Rozenko, Mykola Dmytrovych Savenko, Mykola Fedosovych Selivon, Viktor Yehorovych Skomorokha, Volodymyr Pavlovych Tykhy, Liudmyla Panteliyivna Chubar, Volodymyr Mykolayovych Shapoval, Stanislav Serhiyovych Yatsenko.

Petitioners and representatives of the parties to the appeal: The subject of the constitutional appeal (or appellant) was the Central Election Commission (CEC).

On February 26, 1998, the Court issued a ruling on the constitutionality on the Law of Ukraine “On the Election of National Deputies of the Verkhovna Rada of Ukraine.” Two weeks later, on March 10, 1998, the CEC filed an appeal asking that the Court provide an official interpretation of the provisions of parts 11 and 13 of Article 42 of the Election Law (as amended by subsequent legislation), both of which could potentially be effected by the Court’s 2/26 ruling. Because the parliamentary elections were scheduled to take place on March 29, 1998, (less than three weeks later), the Court heard the case on an expedited basis and issued its ruling on March 25, 1998. The CEC was especially concerned with clarification of all aspects of the Court’s ruling because in its decision, the Court placed the responsibility for implementing its decision with the CEC and the Verkhovna Rada.

Background: According to the mixed system of elections established by the Rada, to be elected in a single mandate district a candidate needs to get more votes than any other candidate. To be elected in the multiple mandate nationwide district, the party or party bloc to which the candidates belongs must receive at least four percent of all votes cast. The multiple district mandates are then parceled out among the parties or party blocs depending on the proportion of votes they receive.

Paragraph 11 of Article 42 pertained to candidates for Parliament who were running on the “party (or party bloc) list,” that is, in the nationwide multiple mandate district. Candidates are elected from the party list according to their order (ranking) in the list. According to the Law on the Election of National Deputies, if someone ran for parliament in both the multiple and a single mandate district and was elected in both districts, then they would be considered as elected from the single mandate district and their name would be “passed over” in the party list. For example, if candidate X wins the single district election and at the same time X’s name is Number 2 on the list (slate) of the party or party bloc to which s/he belongs, and his/her party gets more than four percent of the vote and a proportion of votes (vis-а-vis the other parties) sufficient to garner three mandates, then the name of candidate X is removed from the party list and, instead of having party list candidates Numbers 1, 2 and 3 elected to Parliament from the party list, candidates 1, 2 and 4 are elected (presuming that 1, 2 and 4 were not elected from single mandate districts).

The major assumption in this whole process, however, is that it is lawful for a candidate to run for parliament in both a single mandate and the multiple mandate district at the same time. This was precisely one of the provisions of the election law that was appealed as unconstitutional to the Court by a group of national deputies. In the Court’s decision of February 26, 1998, the judges said that allowing someone to run in two districts violates the principle of universal equal electoral rights because it would give candidates running in both districts essentially two chances to be elected whereas candidates running in only one district would have just a single chance. The Court, therefore, found this provision of the National Deputy Election Law to be unconstitutional.

In its resolutions, however, the Court said that its decision does not apply to “legal relations” that arose on the basis of the provisions which it now found to be unconstitutional. In other words, if on any day before the Court issued its decision a candidate decided to run for parliament in two districts, there is nothing that could be done about it at least as far as the March 29 election goes. Presumably this practice will be illegal in parliamentary elections held after March 29, 1998.

This is one reason why the CEC filed its request for an official interpretation of the National Deputy Election Law. It said that prior to the Court’s ruling of February 26, 1998, the CEC was supposed to incorporate paragraph 11 of Article 42 into its formulation of election results. Now that the provision had been found unconstitutional, it was not sure how to proceed.

Paragraph 13 of Article 42 stated that “the number of mandates received by parties and electoral blocs of parties is the result of elections.”

The Constitutional Court’s Ruling:

After hearing the report of judge P.B. Yevhrafov and after studying the materials of the case, the Constitutional Court of Ukraine issued the following ruling:

1 & 2.The CEC stated that after the Court ruled on the Election Law, part 11 of Article 42 became unclear. As mentioned above, this provision had to do with what would happen if a candidate who won a seat in parliament in the single mandate district also won a seat in the multiple mandate district. The CEC said it could not make a decision regarding this point because by doing so it would be making law. According to the Constitution, only the Verkhovna Rada has the authority to make law. It turned out, however, that the Rada passed a law which took effect on March 19, 1998 that resolved this issue. As a result, the Court said there was no longer a need for an official interpretation of part 11 of Article 42 of the Election Law. Unfortunately, I don’t seem to have a copy of this law handy so I’m not sure precisely how the Rada resolved the issue. If anyone has any information about this law (the Law of Ukraine “On the Introduction of Amendments to the Law of Ukraine ‘On the Election of National deputies of Ukraine’” of March 3, 1998) I would be interested to learn what the outcome was. Incidentally, this law only went into effect on March 19 because that is the day it was published in the Rada’s official newspaper Holos Ukrainy.

3.Paragraph 13 of Article 42 stated that the results of the elections in the nationwide multiple mandate district are (equal to) the “number of mandates received by political parties or electoral blocs of parties.” The amount of mandates received has to remain the same until the next regularly scheduled or special election.

Resolutions:

1. Part 13 of Article 42 of the Law of Ukraine “On the Election of National Deputies of Ukraine” should be understood as meaning that the “results of elections in the nationwide multiple mandate district is the quantity of mandates received by candidates for national deputy of Ukraine who are included in lists [slates] of political parties or electoral blocs of parties. From these lists, deputy mandates are distributed in proportion to the amount of electoral votes received by them [the parties in the lists].”

The number of mandates that a party or party bloc receives remains unchanged until the next regularly scheduled or special election.

(The Court did not issue an official interpretation of part 11 of Article 42 because the Rada had already passed a law addressing the relevant issues.)

2. The decision of the Constitutional Court takes effect on the day it is officially made public.

3. The decision of the Constitutional Court of Ukraine is binding on the territory of Ukraine, final and without appeal.

The decision of the Constitutional Court of Ukraine shall be published in the “Herald of the Constitutional Court of Ukraine” as well as in other official publications of Ukraine.

No dissenting opinions to this decision were published in this issue of the Visnyk.

Summary by Victor Lychyk