Criminal Law Protection of the Ukrainian External Voting to the State Authorities in Post-War Conditions (A Case Study of Poland)

Abstract

Background. The article explores the potential of conducting elections for state authorities of Ukraine in the foreign electoral district (external voting) in the conditions caused by the full-scale invasion of Ukraine by the Russian Federation on 24 February 2022. According to the United Nations High Commissioner for Refugees (UNHCR), with the caveat that the real numbers may be higher due to not all migrants from Ukraine being able to register as refugees, 6.2 million Ukrainians currently reside abroad, with 5.8 million of them situated in Europe. The Republic of Poland hosts the largest number of Ukrainian refugees with temporary protection status, exceeding 1.5 million. Therefore, the research focused on the case of the Republic of Poland, expecting that its findings could be extrapolated to other states where a significant number of Ukrainian citizens reside. Considering that about 20% of Ukrainian citizens reside abroad, including both refugees and those who permanently lived abroad until 24 February 2023, Ukraine must devise effective mechanisms for organising external voting; otherwise, if measures are not taken, less than 0.5% of voters abroad will be able to vote. In particular, it is necessary to develop models ensuring the criminal legal protection of external voting, as election abuses can affect voting outcomes significantly, distort the process, and even lead to the usurpation of power. Methods. Throughout the research, various methods, including logical (analysis, synthesis, generalisation, extrapolation, analogy, modelling, hypothesis), historical, systemic-structural, comparative-legal, and dogmatic methods, have been used. Logical methods played a crucial role in analysing the operation of the Criminal Code of Ukraine, the Code of Ukraine on Administrative Offenses, regarding possible electoral offences committed outside Ukraine during Ukrainian elections held abroad. The historical method was utilised to analyse the experience of the Ukrainian parliamentary elections in 2019. The system-structural method has been applied to formulate proposals for ensuring the legal protection of elections to state authorities outside of Ukraine. The comparative legal method was applied when comparing provisions in the criminal legislation of Ukraine and the Republic of Poland, specifically those pertaining to liability for election offences. The dogmatic method has been used in the interpretation of the norms of the Penal Code of the Republic of Polandestablishing liability for election offences, in the understanding of the norms of the Criminal Code of Ukraine, the Code of Ukraine on Administrative Offenses regarding their application to election offences committed outside Ukraine. The article delves into two primary aspects. Firstly, it examines the jurisdiction under which criminal liability for election offences in Ukrainian external voting is imposed, explicitly identifying the relevant legislation of the involved state. Secondly, it addresses the problems of applying the principles of the operation of the Criminal Code of Ukraine in space concerning the prosecution of electoral criminal offences, including foreigners. Result and conclusions. The authors substantiate the necessity of creating supplementary election precinctswithin the territory of the Republic of Poland, designated for conducting Ukrainian elections beyond the premises of diplomatic institutions of Ukraine and equating them in terms of legal status to the premises of diplomatic institutions of Ukraine. The latter is possible by concluding a bilateral agreement between Ukraine and the Republic of Poland on assistance in conducting Ukrainian external voting on the territory of the Republic of Poland.