Jurisdiction of Liquidated Out-of-Country Polling Stations in the Russian Federation Was Transferred to Other Stations in Georgia, the Republic of Kazakhstan and the Republic of Finland

The Resolution of the Central Election Commission (hereinafter – CEC) of Ukraine on the liquidation of five polling stations on the territory of the Russian Federation and the transfer of their jurisdiction to three other out-of-country polling stations in Georgia, the Republic of Kazakhstan and the Republic of Finland (whose jurisdictions due to this situation were changed) was issued in accordance with rights of citizens of Ukraine in order to ensure their security. The decision of the CEC was adopted on the grounds of Item 5.4 of the Procedure of the Establishment of Common, Out-of-Country and Special Polling Stations on an Ongoing Basis (approved by the Resolution of the CEC No. 11 of 24 January 2012).

Panel of judges of the Administrative Cassation Court within the Supreme Court issued such opinion having examined materials of appellate complaint in the case under the claim against the Central Election Commission on the recognition of the Resolution of the CEC No. 274 of 31 December 2018 “On Amending the Resolution of the CEC No. 67 of 12 April 2012” as unlawful and invalid.

By the noted resolution, the CEC amended the list of out-of-country polling stations established on an ongoing basis; particularly, polling stations Nos. 900075, 900077, 900078, 900117 and 900118 (situated on the territory of the Russian Federation) were liquidated; at the same time, jurisdictions of polling stations No. 900018 (Georgia), No. 900035 (Republic of Kazakhstan) and No. 900101 (Republic of Finland), to which the jurisdiction of the liquidated polling stations had been transferred, was changed. The grounds for the adoption of such a decision of the CEC were represented by the submission of the Ministry of Foreign Affairs of Ukraine No. 71/ВДР/17-505/3-547 of 19 December 2018 motivated by the existence of risks and threats to holding elections on the out-of-country polling stations in the Russian Federation, as well as the necessity of ensuring the security of Ukrainian citizens.

Pursuant to the claim, it appears, that CEC adopted the resolution beyond its authority in violation of Articles 19 and 20 of the Law of Ukraine “On the Election of the President of Ukraine” stipulating, in the claimant’s opinion, the possibility of applying only previously established out-of-country polling stations and determining the time limits for disclosure of their list (before the beginning of the election process).

Besides, the claimant stated that the appealed resolution of the CEC violated the principle of common electoral law and his personal right to vote on the election of the President of Ukraine, since by this resolution the out-of-country polling station No. 900078 in Saint Petersburg had been liquidated, where he would be on the election day, as evidenced by booking and partial payment for airline travel.

The Supreme Court remarked that pursuant to the Procedure No. 11, a polling station existing on an ongoing basis may be liquidated, particularly, under the submission of the Ministry of Foreign Affairs of Ukraine.

As for the claimant’s arguments regarding the violation of time limits for publishing the appealed resolution of the CEC by the respondent, the panel of judges noted that pursuant to Part 1 of Article 20 of the Law of Ukraine “On the Election of the President of Ukraine”, Article 22 of the Law of Ukraine “On the Election of People’s Deputies” and the Procedure No. 11, out-of-country polling stations are referred to a separate independent type of polling stations covered by special legal order.

The Supreme Court supported the opinion of court of the first instance and underlined that the laws “On the Election of the President of Ukraine” and “On the Election of People’s Deputies” prevent changing jurisdictions and centers of single-seat electoral districts while electoral process; at the same time the noted Laws do not include the prohibition of liquidation or changing the jurisdiction of out-of-country polling stations.

The Supreme Court also noted that jurisdictions of the liquidated out-of-country polling stations had been transferred to other polling stations situated in Georgia, the Republic of Kazakhstan and the Republic of Finland. Thus, the claimant’s reference to the violation of his electoral interest is not justified. The claimant, as a person, who is assigned to polling station at the place of residence pursuant to the State Register of Voters (in other words, on the territory of Ukraine), shall be authorized to exercise his right to vote either by means of voting on the territory of Ukraine, or, in case of travel abroad, in an out-of-country polling station established by the CEC provided by the registration of changing the place of voting by him pursuant to the Procedure of Temporary Transfer of Voting Address of Voter without Changing His Electoral Address (approved by the Resolution of the CEC No. 893 of 13 September 2012).

Therefore, the panel of judges dismissed the appellate complaint of the claimant.

Resolution of the Supreme Court No. 855/4/19 of 10 January 2019 - http://www.reyestr.court.gov.ua/.