JURIST Guest Columnist Olga Synoverska is an LL.M. candidate from the University of Pittsburgh School of Law Class of 2013, and has interned at OMP Law Offices in Kyiv Ukraine while studying for her law degree. Synoverska discusses a recent change to the laws of Ukraine regarding the commonplace practice of Members of Parliament entering votes for their colleagues...
n February 22, 2013, the Verkhovna Rada
of Ukraine (the Parliament) amended Part 3, Article 47, of the Law of Ukraine on the Rules of Procedure of the Verkhovna Rada of Ukraine
. The new changes were made to ensure each member of Parliament personally votes instead of having a deputy or another member of Parliament do it for him. The Parliament hopes to accomplish this by implementing a system of tracking violations of new personal voting rule. The changes constitute a compromise between the majority and opposition in Parliament, ending a standoff since February 5, 2013, the date the second session of Parliament opened. The opposition blocked any work in Parliament until a change was made to the old electronic vote-counting system of voting in Parliament. The rampant problem of violation of the personal voting rule has long been a heated source of contention in Ukraine. Under Article 47 of the above-mentioned law, members of Parliament are obligated to vote in person using the electronic vote-counting system at the session of the Parliament or at location specifically designated for secret voting near the plenary hall.
The electronic vote-counting system, named "Rada-3," was created in 2002 to ensure voting by each parliamentarian in person by using specific personal electronic cards. To vote, the member of Parliament must put his personal card into the vote-counting system and to press one of the three buttons "for," "against" or "abstention" within ten seconds. However, such procedure of personal voting turned out to be ineffective. There were numerous cases of members of Parliament giving their personal voting cards to their colleagues, who would use them to vote for the absent Member. Such members became well known throughout Ukrainian society as "button pushers".
Under the newly adopted system of vote-tracking, if a violation of the personal voting rule is believed to have occurred by a member of Parliament, the work of Parliament shall be stopped on his demand. The chairman shall determine whether the deputy whose card was used for voting is present. In case of his/her absence, the voting card of an absent deputy shall be forfeited and the voting for a proposal shall be conducted again. The new amendments to the personal voting rule are not the first attempt to change the unethical practice of voting by members of Parliament. In December 2012, the Parliament amended Article 26 of the Law of Ukraine on the Rules of Procedure of the Verkhovna Rada of Ukraine to require personal registration of each Member of Parliament before a plenary meeting using the identification card and signature through the electronic system. From the legal standpoint voting for other deputies constitutes a direct violation of the Constitution of Ukraine, Article 84 of which stipulates that voting at the meetings of the Parliament of Ukraine shall be performed by a people's deputy of Ukraine in person.
In 1998, the Constitutional Court of Ukraine, which is authorized to give official interpretation of the Constitution and laws of Ukraine, held that Article 84 of the Constitution of Ukraine precluded the use by one member of Parliament of another member of Parliament's card to vote for him. The Constitutional Court stated that such action contradicts the nature of the constitutional mandate of the elected member of Parliament who shall act as an authorized representative of the Ukrainian nation in Parliament. The Constitutional Court mentioned that the practice of voting for another deputy has no legal grounds. Moreover, the Constitutional Court emphasized that according to Article 152 of the Constitution of Ukraine, any law or other legal act by the government shall be deemed unconstitutional if there was a procedural violation in the process of reviewing and adopting said law or other legal act.
The European Court of Human Rights (the ECHR) also addressed the problem of personal voting rule violation by Members of the Ukrainian Parliament) in the case Volkov v. Ukraine, decided on January 9, 2013. Oleksandr Volkov, a judge on the Supreme Court of Ukraine, was dismissed from his for "breach of oath." Volkov claimed that the Parliament abused the electronic voting system when it dismissed him as a judge. He argued that members of Parliament used voting cards of their colleagues who were not present at the plenary meeting when voting for his dismissal. To support his complaint, Volkov provided written statements of four Members of Parliament and video record of the plenary meeting when his dismissal vote occurred. The ECHR found that Volkov's dismissal violated the Constitution and the current laws of Ukraine that require personal voting by members of Parliament. Furthermore, the ECHR found such actions by the members of Parliament violated the principle of legal certainty, which constitutes a breach of Article 6, Section 1 of the European Convention on Human Rights.
Since the passage of the amendments to the personal voting rule, politicians are discussing the necessity of creating a new electronic system to replace "Rada-3," which will make it impossible for any Member of Parliament to vote for another. The largest challenge for Ukrainian parliamentarians will be introduction of liability for those deputies who violate the personal voting rule. Even though liability for similar violations is common in other countries, the concept is uncommon in Ukrainian law and will be a difficult change to bring to fruition.
Olga Synoverska received her bachelor's and post-graduate degrees in law with honors from the National University of Kyiv-Mohyla Academy in Ukraine. She is the recipient of World Wide Studies Scholarship and CILE/ALCOA Scholarship.
Suggested citation: Olga Synoverska, Fair Decision-Making in Ukraine: Ensuring Personal Voting in Parliament, JURIST - Dateline, Apr. 25, 2013, http://jurist.org/dateline/2013/04/olga-synoverska-ukraine-voting.php.
This article was prepared for publication by Michael Micsky, an associate editor for JURIST's student commentary service. Please direct any questions or comments to him at email@example.com