Statistically, the most prevalent cases recorded by OPORA observers in September were related to illegal campaigning. However, the most alarming cases, with the gravest consequences and their negative impact on the democracy of election process, are those that include elements of abusing the administrative resource, and material incentives for voters. It was shared by representatives of the Civil Network OPORA at the press conference on October, 2, in Kyiv.
An indispensable part of the proper preparation for elections is the clearly established sources and scope of funding for the anti-epidemic measures, currently unavailable. The stability of the election process is also affected by the pending discussions on the possibility to introduce more changes to the Electoral Code (draft laws No 3971 and No 4117) in order to regulate certain electoral procedures, such as about the grounds to accept or to consider invalid the ballot papers under proportional system. Therefore, the parliament failed to secure any sufficient legal certainty for the election process when approving the final version of the Electoral Code, and in the discussions on its further improvements.
OPORA hereby notes the due professional level of the Central Election Commission in exercising its powers in the field of local elections; and commends the Commission’s efforts to inform voters and to secure the voting rights for citizens. According to Olga Aivazovska, chair of the board at the Civil Network OPORA, in the period from July, 1, to September, 10, 2020, about 100,000 took the opportunity to change their voting addresses in order to vote at their actual place of stay. However, there is still an unresolved challenge to secure the inescapable punishment for electoral fraud, since there is a suspiciously high growth of voters at certain polling stations. OPORA plans to organize a closer watch over the polling stations, and calls upon the law-enforcement bodies to pay more attention to them.
The imperfections of certain provisions in the Electoral Code makes the CEC to additionally explain election procedures. In some cases, the explanations of the higher election administration body are excessive, such as in part of indirect voter bribery and in approving the form of a ballot paper (on the format of having numerical order of candidates). Thus, at elections conducted under the proportional system, the ballots have candidates from the party organizations in the territorial lists listed in the 1–12 format, without having a “0” digit before the numbers from 1 to 9, including. It contradicts the previous notifications to voters about the voting manner, including in the awareness campaigns run by the CEC.
"As of today, the ballot template has been adopted, but it is at odds with the election campaign run by candidates who have not been informed about the differences in numbers to be included in the section of the ballot paper where you have to insert the candidate’s number on the territorial list of a political party nominating the list in the constituency. If you take a closer look at campaigning materials, you can see that most candidates are promoting their numbers in the format of 01, 02, 03, whereas the final version of the ballot paper is going to have the numbers without any zero digits in the front, configured as 1 to 9, as a prime number, followed by 10, 11, 12. We believe there is a certain risk about it, as certain chaos was introduced into the campaigning process and voter awareness by the candidates themselves, when they specified which number to support in the ballot paper. At the same time, it is possible that a box with two slots for numbers (when one of the slots is obviously going to be empty) might be fit for the technology of adding the number. That is why, should a voter support a candidate No 1, and mark it in the first slot of the two-digit box, then a 0, 1 or 2 may be added. It offers three options for different voting, which will certainly impact the final results," – states Olga Aivazovska.
The CEC granted a permission to have observers for 116 non-governmental organizations, and rejected such requests for 6 NGOs. Specifically, 4 NGOs were rejected for breaking the deadline to apply with a request; and in 2 cases the NGO statutory activities did not cover any election or observation related aspects. The same as during the recent national and local elections, the CEC mandates to have official observers were received by NGOs related to political parties and candidates, among others. Public links of certain non-governmental organizations to political parties pose risks for the non-partisan observation process, and for politically biased conclusions of the observations.
Due to the established impossibility to have local elections in 18 local communities of Donetsk and Luhansk Oblasts, there was a problematic situation with electing district councils in the districts they are parts of. The decision not to conduct local elections in the hromadas concerns the 475,000 voters, and largely affects the possibility to provide for representation of common interests of territorial hromadas on the district level. At the same time, elections of deputies to district councils in the government-controlled territories of Donetsk and Luhansk Oblasts are going to take place. OPORA has multiple times highlighted the lack of clear justifications for decisions of the civil-military administrations or the criteria for their drafting, even though the CEC had to establish it impossible to have the first elections in 18 hromadas.
According to Oleksandr Kliuzhev, a senior analyst at OPORA, one key event of the election process is the nomination of candidates at local elections. Oblast party organizations enjoy the priority in this procedure, whereas other party organizations (on the level of a town, village, or township) may use this right only in case an oblast party organization does not have any any candidate nominated. Such “centralization” of the candidate nomination process at local election resulted from the interest of the key parliamentary parties that usually do not have a broadly ramified network of local centers. Therefore, the candidate nomination process included certain issues with allowing journalists and observers to nomination conferences, with low motivation of political parties to provide transparency and openness of certain events.
"OPORA observers paid special attention to party conference. Why is this so important? Firstly, an internal party democracy shall be further enhanced. On the other hand, cases shall be prevented when candidates in the election lists are replaced after their final approval. Regretfully, but the candidate nomination and registration process presented such cases when there were due grounds to believe that certain rotation was taking place in the party lists, without any conference mechanism behind. They intended to shift the positions of leaders to maintain the gender balance on the lists. What are the key issues we identified on the stage of candidate nomination? In the first place, parties have low interest in openness and transparency of their conferences for journalists and observers. The quarantine restrictions would often be used as a formal argument not to let the journalists or observers in, to attend the conferences. However, our representatives had due grounds to believe that the key intention was to have the conferences behind the closed doors, especially if we take into account the experience of introducing rotations to the submitted candidate lists. Moreover, there is a number of party organizations who failed to meet the requirement to notify the TEC about having a conference. It is a breach of the general procedures for candidates at local elections, and it may serve as a ground to reject the candidate’s registration. Very many parties failed to notify the mass media about the scheduled conferences, but only posted as little as the announcements on their official websites, which were difficult to locate. According to our estimates, 50% of the 226 conferences attended by our observers have not had any prior notifications in the mass media that they had scheduled, or about the venues, and how to get there," - says Kliuzhev.
According to OPORA observers, a key challenge for territorial election commissions and candidates on the registration stage was the application of a new electoral law in practice, since they did not have enough time to study it properly. Incomplete awareness of electoral subject and the ambiguity of certain provisions of the Electoral Code caused some mistakes made by local party organizations and candidates, and the controversial decisions of TECs. In some cases, the observers recorded conflicts between the candidates and the TECs, with elements of politically motivated actions taken by TECs. Similar to the previous elections, there were some issues with the non-uniform application of the law by election commissions in the similar situations. In particular, as to the registration and rejection of registration for party lists compiled against the gender quota rules, in breach of procedure for placing a monetary deposit, for including other party members into the party lists, for non-notifying about having the party conference, etc.
According to Oleksandr Kliuzhev, the candidate registration process was also undermined by cases of registering the so-called clone candidates, with the personal data identical to the actual electoral participants, such as in Dnipropetrovsk, Transcarpathia, Kyiv, Luhansk, Odesa, Kherson, and Chernihiv Oblasts. Because of the technology, voters would be confused and mix up a popular leader with the “technical” candidates. It may distort the final voting results and violate the passive voting rights of the actual participants of the pre-election campaign.
Campaigning, Administrative Resources, and Electoral Charity
According to Oleksandr Neberykut, OPORA's analyst, any campaigning should begin after the registration of candidates and the opening of the relevant election funds, which lasted from September 15 to 24. However, OPORA observers have noted active campaigning by 73 political parties before that date. At the same time, there have been many more mayoral candidates and deputies to various councils who independently launched their early campaigns. The peculiarity of campaigning in the context of public positioning of its participants is that many potential candidates for local mayors campaigned as self-nominated candidates only formally, claiming to be “independent” of political parties, while still enjoying public support from individual parties. The most typical violations in the context of campaigning were: placement of campaign materials without any source data; posting them in places prohibited by law and in violation of landscaping rules, as well as early placement of campaign materials before registration and opening of election funds by parties and candidates.
“There are many such cases, but we understand that this is an administrative responsibility, so the risks for electoral subjects are reduced to minimum. Even if they do it knowingly (since some do it for reasons of ignorance of the law), they do understand that it is not risky for them to pay that fine. Fortunately, the police have a quick response to such situations. It is the third campaign after the presidential and parliamentary elections when there is a proper response and documentation of such things. However, we must understand that the number of such cases is so large that it is virtually unrealistic to record all of them. Therefore, we must state that this is just the tip of the iceberg. What impact will it produce? The key impact is that all this unmarked advertising is essentially not accounted within the election fund, so a huge amount of money is spent on it (and if it is recorded there is no source data), and we can talk about the “shadowing” of this form of campaigning,” says Oleksandr Neberykut.
A to the scale of campaigning activity in the regions, 5 political parties take the lead: “Servant of the People,” “For the Future,” “European Solidarity,” “Batkivshchyna” AU, and “Nash Kray.” They conducted full-fledged national campaigns in all regions of Ukraine. In addition, 3 parties (“Opposition Platform - For Life,” “Proposition,” and “Palchevsky Victory”) are represented by campaigning events in most regions of Ukraine. 10 other political parties are actively campaigning in many regions of Ukraine, rather than on a national scale. The remaining active participants in the local elections (over 50 parties) concentrated their campaigning activities within specific oblasts. As to campaigns by candidates for local mayors in district and regional centers, the most prominent are representatives of the “Servant of the People” (active in 73 districts and in 15 Oblast centers). The parties “For the Future” and the “Batkivshchyna” All-Ukrainian Union have a relatively smaller number of potential candidates for the position of local mayors of district and Oblast cities, who were actively running campaigning activities. However, the numbers are still significant, on the Ukraine’s scale.
“In the situation of official development of the election process and completion of the candidate registration stage, the charitable activity of electoral subjects may be regarded as voter bribery, in legal terms. In this context, activities of charitable foundations are particularly threatening. The charities are considered by unscrupulous candidates as a semi-legal tool to offer financial assistance to voters for electoral purposes (such funds are most active in Kyiv, Volyn, Ivano-Frankivsk, Sumy, Vinnytsia, Odessa, Luhansk, Ternopil, Kharkiv, and Poltava Oblasts). Given that the law formally prohibits charitable organizations from participating in election campaigning, in practice such activities are covert and are not positioned as the de jure campaigning,” says Neberykut.
Major number of recorded incidents is related to the beginning of the new school year and the organization of public campaigning events directly targeting the audience of schools and institutions of higher education (teachers, parents, students, and lecturers). Most often, this form of campaigning was found in regional centers and in large cities - both exercised by candidates for deputies and mayoral candidates (mostly self-nominated). Some local political party organizations that occasionally resorted to pre-election charity events in August (including “Batkivshchyna,” “European Solidarity,” “Opposition Platform – For Life,” “Svoboda,” and “Servant of the People”), continued this common practice in the first half of September. First of all, we are talking about various entertainment events for children and youth, football, chess, athletics tournaments, celebrations of city days (villages, towns), accompanied by a large number of party symbols, gifts to children, socially vulnerable groups, socially oriented institutions (schools, kindergartens, boarding houses, hospitals, etc.). At the end of September, the scale of pre-election philanthropy decreased due to the completion of the candidate registration process and the risk of prosecuting electoral subjects for voter bribery.
According to Oleksandr Neberykut, a separate form of indirect bribery that is gaining more ground is the promise of material benefits or other socio-economic benefits to voters, in exchange for support and on condition of the candidate’s election. The danger and negative consequences of such abuses increase when the election promise concerns the expenditure of public resources, which can be further classified as misuse of budgetary administrative resources. In addition, the importance of the COVID-19 epidemic problem also encourages candidates to use the topic not only for campaigning and voter mobilization, but as an additional incentive to provide material benefits (such as free tests for coronavirus antibodies), which includes elements of voter bribery.
In September, in addition to an increased number of cases of using various forms of administrative resources (staff, facilities, budget), there was also a growth of officials and civil servants who resorted to this type of abuse or misconduct. While in August, the sporadic law-breakers were mostly heads of regional state administrations, in September, the level of involvement in campaigning activities of heads of district councils and administrations, as well as city mayors, increased. Officials who have registered as candidates for local mayors not only continue to be in office during the campaign, but have intensified their public activities, using their status and reputation to mobilize voters for their support. In accordance with the requirements of the civil service legislation, the ethics of an official presupposes the obligation to observe political independence and neutrality in the performance of their official duties. According to OPORA observation, officials who are subject to electoral process rarely succeed in complying with the legal requirement of political neutrality in the workplace in the context of the electoral process, but such situations show signs of conflict of interest, and may undermine trust for the integrity of the electoral process, or for the activities of public administration bodies.
Some examples of violations of the law, which have been increasingly recorded by OPORA observers, are the unauthorized collection of personal data of voters during campaigning by electoral subjects. In particular, this is done under the guise of a questionnaire or through the recording of contact details of participants in public events organized by parties and candidates (Vinnytsia, Lviv and other Oblasts). The increase in the intensity of campaigning is accompanied by an increase in the conflict between the election process and public confrontations between parties and candidates, which often use discrediting methods, black PR, damage to property, and competitors pose obstacles for campaigning.
Moreover, legal uncertainty on campaigning in social media and no possibility to pay for political ads in social media directly from election fund pose big risks for moving election costs into shadow. It also creates unequal conditions for electoral subjects. In September, OPORA held a monitoring for parties and candidates using political ads in the social media of Facebook. According to the Political Ads Library, over 36,000 ads with political content were posted on Facebook, for the total amount from USD 1,150,000 to USD 1,400,000 (to compare, in August, 20,000 posts were published on Facebook, for the total amount of USD 400,000). The tool of Facebook political ads was used by 35 political parties. In total, they spent for the publication of posts almost USD 400,000. As to mayoral candidates, there was an especially high campaigning activity manifested by the candidates for mayors of Kyiv and Lviv.
“If we talk about the political forces, the “For the Future” party takes the lead. They spent USD 103,291, and shared 3,728 posts with elements of political ads, on 30 pages. Next follows the “Nash Kray” who started actively spending on that in September. In total, in September, the party spent over USD 64,000. Third highest spender is the “Servant of the People” – USD 42,000, followed by the “European Solidarity” – USD 35,000. There’s also the “Palchevsky Victory” with the USD 28,000,” says Olga Aivazovska.
Police and Courts
OPORA calls on the National Police of Ukraine and other law enforcement agencies to actively respond to allegations and reports of voter bribery and other illegal technologies, as well as to promptly inform the public about the interim results of relevant investigations.
According to the National Police, as of October, 1, some 1,808 election related reports and notifications have been registered. The total number of protocols on administrative offense filed by the police is 271. 150 criminal proceedings were initiated, of which 83 cases are directly related to the violation of electoral law. There are 5 charge papers served on criminal proceedings, 10 criminal proceedings closed, and there are 137 criminal proceedings under investigation.
Due to the excessively tight deadlines of the election process, there is a problem with the possibility of judicial appeal of procedural violations by the territorial election commissions. Thus, appeals against violations of many procedures were complicated by the lack of registered candidates and political parties. Potential candidates and parties had the opportunity to challenge the decisions, actions, and inactions of TECs only as voters whose rights to appeal were limited to the violation of their personal rights alone. In 5 court proceedings, the inaction of the Central Election Commission was appealed; in all cases the decisions confirmed the validity of the CEC’s legal position. 13 lawsuits concerned appeals against decisions of territorial election commissions on the division of constituencies.
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