IFES Comment on the legal aspects of the registration of Mr. Kliuyev and Mr. Sharii as candidates for the July 2019 early parliamentary elections
On July 2, 2019, the Central Election Commission registered Mr. Andriy Kliuev, former Deputy Chief of the President’s Office under Victor Yanukovych, and blogger Mr. Anatoliy Sharii as candidates in single member constituencies for the July 21 early parliamentary elections. The following day, the CEC cancelled these registration decisions based on new evidence provided to the CEC by the Security Service of Ukraine (SBU) that confirmed that Kliuev and Sharii crossed the border of Ukraine to other states in 2014 and 2012, respectively. There is no evidence that they returned to Ukraine after that. Based on this new evidence, both Kliuev and Sharii lose the right to run for elections as they no longer fulfill one of the eligibility requirements set forth in the Constitution and the Parliamentary Election Law; namely, that to register as MP candidate, a voter must have resided in Ukraine for the last five years before election day.
Civil society activists harshly criticized the CEC decision to register these candidates. They alleged that neither candidate had been residing in Ukraine during the last five years. They also emphasized that both have been under criminal investigation in recent years. Kliuyev was named by the SBU as one of Yanukovych’s henchmen involved in suppressing street protest in the Revolution of Dignity, as well as embezzlement and abuse of power. An international arrest warrant was issued for Kliuev in 2014. The SBU has considered him missing since February 28, 2014. Mr. Anatoliy Sharii has also been under an international arrest warrant since 2012 and has been considered missing since then.
Even though both personalities are controversial public figures, the CEC decision of July 2 to register Sharii and Kliuev fully complied with the provisions of the Parliamentary Election Law. Initially, the CEC rejected their applications for candidate registration. The CEC based its decision on information received from various sources, including the media, which indicated that both had not resided in Ukraine for the last five years. Both challenged the CEC’s refusal at the Sixth Administrative Court of Appeals, which considers complaints against CEC decisions in the first instance. The Court ruled in both cases that the CEC’s denial of candidacy was not properly substantiated, as these denials were entirely based on second-hand information from internet and media reports and not on official information.
During the initial registration on July 2, the official information available was provided by the Border Security Service. According to this information, neither of the two men had left Ukrainian territory during the last five years to move to another state. This meant that the two men could not de jure be considered to have left Ukrainian territory. Participation in TV shows and public events abroad only meant that the person in question was abroad on those specific dates; it did not necessarily mean that the person was abroad permanently over a certain period of time. In the absence of compelling evidence of residence outside Ukraine for the last five years, the Sixth Administrative Court of Appeals ruled that the rejection of their registration was illegal and a restriction on their right to stand for election. In both cases, the CEC filed an appeal to the Supreme Court. However, on June 30, the Supreme Court upheld the decisions of the first instance court and instructed the CEC to reconsider the registration applications.
The Supreme Court decision did de facto allow for the CEC to reject the candidates’ registration if new compelling evidence was presented to the CEC that the candidates do not comply with the residence requirement (or if evidence was presented after they had been registered as candidates – to deregister them). Given that it had not received any such compelling evidence proving that the candidates did not meet registration requirements and the deadlines for registration were expiring, the CEC registered both candidates for the elections. This happened on July 2, after the expiration of the initial June 25 deadline for the CEC to register candidates. In light of the expiring deadlines, the Parliamentary Election Law did not give the CEC any other option but to register both candidates.
On July 3, following the registration of Kliuev and Shariy, the SBU presented the CEC with new evidence testifying that both Kliuev and Sharii had left Ukraine years ago and that they had no information about them entering Ukraine again after that. Specifically, former guards of Victor Yanukovych confirmed in their testimonies that Kliuev had left Ukraine for Russia together with Yanukovych in 2014, while Sharii left Ukraine for Russia in 2012.
It is yet unclear whether the ex-candidates will challenge their de-registration in court and, if they do, whether the court will find the new evidence compelling. However, the new evidence appears much stronger than previous. If the court deems the evidence compelling, the burden of proof will shift. It will then be up to Sharii and Kliuev to prove that they returned to Ukraine after having left the country, and thus still eligible to run for elections.
The OSCE/ODIHR and Venice Commission have repeatedly criticized the five-year residence requirement for candidacy in the Constitution and Parliamentary Election Law for non-compliance with international standards and best practices. Residence requirements should not apply as criteria for standing in parliamentary elections. In addition, the provisions governing the criteria in the Parliamentary Election Law are too vague to be effectively enforced. It is not the first time that the deficiency of these legal provisions has surfaced. It was already an issue during the 2012 and 2014 parliamentary elections, when it was alleged that some candidates did not meet the five-year residence criteria (e.g. soccer player Andriy Shevchenko, former Deputy Chief of Security Service of Ukraine Serhii Satsiuk, incumbent Minister of Interior Avakov, among others). Notably, Mr. Avakov was criminally prosecuted under the Yanukovych regime for political and business reasons and himself forced to leave the country to escape imprisonment. This, however, did not prevent him from running in the 2014 early parliamentary election, as in the case of Kliuev and Sharii in the 2019 elections.
IFES believes that in light of the evidence made available to the CEC at different stages of the process, both its decisions – to register and, subsequently, to de-register Mr. Kliuev and Mr. Sharii – are fully consistent with the Parliamentary Election Law: they were based on the evidence available to the CEC at the time when the respective decisions were adopted. This case suggests that CEC and law enforcement agencies need to cooperate more closely to ensure that the CEC has all available facts and evidence at its disposal about observance of the five-year residence requirement for prospective candidates. It needs to be presented to the CEC in a timely manner so that the Commission is not forced to search for the evidence in media or on the internet. IFES notes that the existing legal provisions governing the residence requirement for MP candidates are vague. This is an issue to be addressed by the Verkhovna Rada in the form of amending the relevant provisions of the Parliamentary Election Law to clearly specify what “residence in Ukraine” means and how the residence period is calculated. In the longer term, the five-year residence requirement should be removed from the Constitution of Ukraine to ensure that all eligibility requirements set forth in election laws are consistent with international standards and best practice.