In May 2019, OPORA has started to monitor pre-electoral situation in the regions of Ukraine and preparations to early parliamentary elections. The monitoring covered formation of district election commissions, party congresses, and nomination of candidates, as well as activities of the CEC and electoral violations. Election observation of the Civil Network OPORA is a network activity, aimed at impartial assessment of the preparation and conduct of an election process. Observation goal is to identify key problems in the election process, create an evidence base and prevent violations through civic oversight not only during elections, but also during pre-election period.
Based on the Presidential Decree on Early Termination of Powers of the Verkhovna Rada of Ukraine and the Appointment of Early Election, which was published on 23 May 2019, the early parliamentary elections in Ukraine have officially launched on 24 May 2019. In accordance with the Law on Election of People's Deputies of Ukraine, the Central Election Commission has started organization of early parliamentary elections, scheduled for 21 July 2019, promptly after the publication of Decree.
The election process has began in a constant expectation of the Constitutional Court's decision concerning the legitimacy of the Presidential Decree on dissolution of the Verkhovna Rada. On June 11, 2019, the Grand Chamber of the Constitutional Court has began oral hearing aimed to consider a motion signed by 62 MPs concerning the constitutionality of the Presidential Decree on the dissolution of the Verkhovna Rada. On June 20, the Constitutional Court recognized the Presidential Decree on Parliament's dissolution to be in line with the Constitution of Ukraine (constitutional). According to the Court, the current situation is a constitutional conflict between the President and the Parliament, which doesn't have a legal solution. Thus, it has ruled that it is in line with the Article 5.2 of the Constitution of Ukraine to resolve this conflict by calling an early election to the Verkhovna Rada of Ukraine. The decision of Constitutional Court was quite unpredictable, and all the stakeholders feared it might be politically motivated. As a result, potential electoral subjects were disoriented, and took these facts as a reason to put in question the legitimacy of the whole process.
Constitutional Court's decision will partially help to restore confidence in the election process, but it may lead to another round of political confrontation. OPORA urges all political players to refrain from any public statements discrediting state institutions for electoral, party or political purposes.
As for the legal side, the key problem of early elections is non-reformed electoral legislation, particularly the current electoral system for parliamentary elections. The Parliament had refused on its 22 May extraordinary meeting to consider a hastily prepared draft law on making amendments to current law on parliamentary elections, which was submitted by the President and suggested cancelation of majoritarian system and shift to proportional system with closed lists. Parliamentary political forces also do not show any interest in a high-quality and effective refinement of the draft Election Code, which is currently being considered in the second reading.
This electoral process has an extremely rapid pace (in fact, only 58 days are given for the campaign). As a result, all subjects of the election process - election administrators, candidates and parties - are being put under additional pressure. Thus, the CEC faced the problem of adhering to the legal deadlines for public procurement in the context of a speedy electoral process. The Parliament, for its part, is ignoring the need to settle this problem through legislation. Despite discrepancies in public statements of the Government (Ministry of Economic Development and Trade) and the CEC, they have managed to temporarily resolve the problem through the adoption of a separate by-law. The Ministry of Economic Development has allowed in its order #898 on Making Amendments to the Procedure Determining Procurement Objects to divide large purchases into smaller lots to avoid complex and lengthy tendering procedures.
Despite the shorter time frame of the electoral process, the CEC has organized formation of district election commissions in time, in line with the procedures and in a transparent manner. All commissions are formed with the maximum membership (18 persons). The total number of nominees submitted to DECs by parties (5,756 persons) was slightly higher than in 2014 early parliamentary elections (5,471 persons). Such parliamentary parties (factions) as Petro Poroshenko Bloc "Solidarity", Radical Party Oleh Liashko," People's Front, Batkivshchyna and Opposition Bloc received the largest representation. Thus, they have representatives in all 199 DECs, two representatives in half of DECs. Samopomich has a slightly smaller representation in DECs (184 DECs covered, two persons in 53 of them). Based on the drawing of lots, "Vidrodzhennia" party (114 persons) and the Party "5.10" (114 persons) received the largest representation in DECs, the smallest representation - Syla Liudei (47 persons). 25 nominating entities are represented in DECs in total. Taking into consideration the distribution of managerial positions, we may say that district election commissions were formed in a politically balanced and pluralistic manner. However, there is still a problem of technical representation of parties in DECs.
OPORA has also determined that more than a third part of members in newly formed DECs (38% or 1,356 persons) are experienced and were members of district election commissions in 2019 presidential election. In particular, 172 of 309 current members of DECs, delegated by the PPB "Solidarity", represented Petro Poroshenko, Juliia Lytvynenko and Volodymyr Petrov in DECs during the last presidential elections. At the same time, 147 of 290 current members of DECs representing "Zastup", "Yedyna Rodyna" and Ukraine of the Future, were deployed to commissions by Volodymyr Zelenskyi in the last national election.
Party congresses (meetings, conferences), dedicated to the nomination of candidates for early parliamentary elections, took place in a relatively transparent manner. However, selective announcement of nominees, changes in the lists and replacement of candidates immediately after a public part of congresses, all indicate violation of legal requirements. OPORA agrees with the Venice Commission and other international institutions regarding the inadmissibility of excessive state interference in internal party processes, provided that parties effectively control the implementation of statute requirements during congresses and the nomination of candidates.
NGOs are showing significant interest in these elections. 170 of them have appealed to the CEC asking for permission to deploy official observers. The number of organizations that received such permission is even larger than in 2019 presidential election (163 against 138). Unfortunately, OPORA continues to detect signs of the connections between civic organizations and candidates or parties. This undermines confidence in non-party observation and discredits such form of citizen watch.
During the election process, OPORA observers have filed 41 reports om administrative offense under Article 212(13) of the Code of Administrative Offenses of Ukraine (campaigning materials without an imprint). The largest number of such violations was noticed in Kharkiv oblast. The National Police of Ukraine, for its part, has opened 19 criminal proceedings in May into violation of electoral rights of citizens. Thus, 11 criminal proceedings were initiated from 1 to 20 June, and 7 materials on election-related administrative violations were filed.
Activities of the Central Election Commission
Public procurement of goods and services necessary for organizing and holding early parliamentary elections in Ukraine became the key challenge for the CEC. On the first day of the election process, the CEC appealed to the President of Ukraine, the Verkhovna Rada of Ukraine, and the Ministry of Economic Development and Trade, asking to promptly resolve issues of public procurement in a speedy electoral process. Legislative time frames and forms of public procurement, deadlines for challenging any realized procurement, do not correspond to the stages of election process. It is stated in this appeal of the CEC that the previous composition of the CEC had already started improvement of public procurement for elections. However, the Parliament and the Ministry of Economic Development and Trade haven't resolved the problem yet.
The President of Ukraine Volodymyr Zelensky had submitted draft law #10217 to the Verkhovna Rada yet before the election process began. This draft law suggests amendment of the Law of Ukraine on Public Procurement to ensure election administration process. According to the Presidential draft law, the Law of Ukraine on Public Procurement does not cover the production and delivery of ballot papers, publication of materials on election administration and the provision of airtime, the purchase of telecommunication services, as well as goods and services for activities of district election commissions, etc. The draft law also suggested that consideration of motions shall not stop the procurement procedure, electronic tendering and deadlines for these procurements. Unfortunately, the Parliament did not support the adoption of this draft law on its extraordinary meeting on May 22, 2019.
As long as the Parliament has failed to resolve the problem with procurements during elections, the Government and the CEC took the initiative to find a solution for the problem through a by-law. Thus, on May 29, the Cabinet of Ministers of Ukraine held an interagency meeting on public procurement issues to guarantee the organization and holding of early parliamentary elections in Ukraine on July 21, 2019.
Despite discrepancies in public statements of the CEC and the Ministry of Economic Development and Trade, they have managed to resolve the problem through a by-law. The Ministry of Economic Development and Trade has prepared and registered Order #898 on Making Amendments to the Procedure Determining Procurement Objects (Access Mode: https://zakon.rada.gov.ua/laws/show/z0569-19) This order allows to divide large purchases into smaller lots to avoid complex public tendering procedures. However, this order of the Ministry is a temporary measure and such simplified procedures will not be effective at the next elections. Thus, thanks to the efforts of the Government, the CEC and the Ministry of Economic Development and Trade, public procurement issues do not hazard the organization and holding of early parliamentary elections in Ukraine.
In general, the CEC has adopted 198 resolutions since May 24, 2019. Most of them are related to the registration of candidates, trustees of candidates, and substitution of members in district election commissions. Resolutions of the Central Election Commission concerned the following issues: approval of a calendar plan for major organizational measures aimed at the preparation and holding of early parliamentary elections; cost estimates; amendments to a number of resolutions, particularly printing of informational posters; requirements for DEC facilities; procedure for making changes in membership of election commissions. Besides that, the CEC appealed to Donetsk and Luhansk military and civilian administrations for an opinion on whether it's possible to organize and hold early parliamentary elections in Ukraine on July 21, 2019 on the certain territories.
The CEC adopted three interpretations of the electoral law. In particular, Resolution #900 of May 24, 2019, which clarifies the procedure for granting NGOs permission to have official observers during early parliamentary elections in Ukraine, establishes additional requirements to those included in the Law, concerning the petition for permission to observe elections by NGOs (in particular, a requirement to indicate the status of an organization in an observation area).
Resolution #909 of May 29, 2019 resolved the problem of providing copies of the first and second pages of passport during the registration of candidates for MPs of Ukraine, allowing to provide the corresponding copies of this document in the form of ID card. The above mentioned resolution contains a provision, requiring broader information about a candidate (indication of all names and surnames if they have been changed before the nomination). This information allows to check information about convictions and the period of stay on Ukrainian territory for individuals, who have changed their names. Regulation #1008 of June 14, 2019 concerns the possibility of obtaining an election ballot on the basis of a passport in the form of ID card.
The CEC amended 13 effective regulations. We should particularly note a positive change in Resolution #893 of September 13, 2012 on the Temporary Change of Voting Location Without Changing of and Election Address. Thus, this change has deleted a requirement to submit supporting documents proving the need to temporarily change a voting location. The resolution on requirements for DEC premises during parliamentary elections in Ukraine was supplemented with a requirement for internet access in DECs.
During the election process, the CEC has passed a resolution concerning one complaint. The complaint from the Internet Party of Ukraine against one resolution of the CEC was left without substantive consideration. The reason was the fact that the CEC considers only complaints related to inactivity of DECs. Besides that, the Internet Party of Ukraine did not confirm the nomination of its candidates and, therefore, it is an inappropriate subject of appeal.
Establishment of the District Election Commissions
Establishment of election commissions is one of the key stages of electoral process. Central Election Commission managed to establish all 199 district election commissions for the election of people’s deputies of Ukraine for the early parliamentary elections on July, 21, 2019, within the term stipulated by the law (before May, 31, 2019).
Main competence of DECs includes establishing voting results within a one-mandate election district, creation of special polling stations on a temporary basis, registration of official observers, recognizing the voting invalid at a polling station (in certain cases).
For the early parliamentary elections, there is a special procedure stipulated for compiling the membership of district election commissions. It reduced the circle of subjects nominating candidates for commission members (Art. 107 of the Law). The candidates for DECs could be nominated by political parties that have their deputy factions in the Verkhovna Rada of current convocation, as well as political parties which people’s candidates were registered in a national constituency at the last parliamentary elections (in 2014). All of them were eligible to submit only one candidate for the membership of each district election commission. Candidates from parties with available parliamentary factions were included into district election commissions automatically. Candidates from other subjects were included into DECs by the draw procedure. Therefore, parliamentary parties (factions) could qualify for getting 2 persons as members of certain DECs.
The right to submit their candidates to DEC membership was used by all 6 parties that have their parliamentary factions, as well as by 25 out of 29 parties that nominated the lists of candidates in a national multi-mandatory constituency at the early parliamentary elections of Ukraine on October, 26, 2014.
Total number of candidates nominated for DEC members is 5,756 persons. Of them, 1,179 persons had to be mandatory included (as submitted by parties that have available factions in the Rada), and 4,577 persons were nominated by political parties for the draw procedure. Thus, the 2,403 vacancies in election commissions were claimed by 4,577 persons. To compare, the total number of candidates submitted by parties to the DECs at the previous 2014 early parliamentary elections was lower and amounted to 5,471 persons.
Vacancies were distributed in accordance with the draw procedure stipulated by the CEC Resolution No 87 dated April, 25, 2013 (with changes), with the help of the Unified Information Analytical System “Elections”.
All district election commissions were established in their maximum composition (18 persons), while the total of members included into DECs is 3,582 persons (including 59% women). In gender terms, the lowest number of women was delegated to DECs by the parties “Syla I Chest” (Power and Dignity) (37%), “Right Sector” (42%), and “Svoboda” AU (42%). On the other hand, the highest number of women was nominated to the DECs by the “Solidarity of Women of Ukraine” party (70%). A major age group of the DEC members covers persons aged from 31 to 50 (they are almost 50%); while the category of persons aged from 51 to 70 years is slightly smaller (35%).
Five out of six parliamentary parties (factions) delegated their candidates to the maximum possible number of DECs (199). It was only “Samopomich” (Self-Reliance) who nominated their candidates for 184 DECs (out of 199). In total, the highest number of candidates for DEC membership (according to the draw, and on the basis of faction quotas) was delegated by the “Petro Poroshenko Block “Solidarity” (“European Solidarity”), (309 persons to 199 commissions), Radical Party of Oleh Liashko (307 persons), “Popular Front” (305 persons), “Batkivshchyna” (300 persons), and “Opposition Block” (290 persons). The four parties received two persons each in the membership of about half of the established DECs. As determined by the draw, the highest representation in the DEC membership has been gained by “Vidrodzhennia” (114 persons) and the party “5.10” (114 persons); the lowest number – is with the “Syla Liudey” (Power of the People) (47 persons).
When distributing managerial positions at district election commissions, the CEC provided for each DEC candidate submitting subject a proportionate share of managerial positions (on average - 17%) against the total number of persons included from this subject to the membership of district election commissions. In addition, it was observed the principle of provisional equality of territorial distribution of positions obtained by each DEC candidates submitting subject.
According to OPORA, over one third of members (38%) of the newly established DECs have been members of district election commissions at the 2019 presidential elections. The largest number of persons included into the newly established DECs at the recent presidential elections worked in district election commissions as submitted by Volodymyr Zelenskyi (193 persons) and Petro Poroshenko (182 persons). Moreover, a large number of standing DEC members at the presidential elections were delegated from Yuliya Tymoshenko (95 persons), Andriy Sadovyi (93 persons), Oleh Liashko (90 persons), Oleksandr Vilkul (79 persons).
In addition, OPORA analyzed representation and transitions of commission members earlier represented in DECs at the regular 2019 presidential elections to DECs at the 2019 early parliamentary elections. Thus, parties “All-Ukrainian Agrarian Association “Zastup”, “All-Ukrainian Political Association “Yedyna Rodyna”, “Ukraine of the Future” and the “Green Party of Ukraine” were the key recipients of members of district election commissions who used to represent Volodymyr Zelenskyi at the Presidential elections. “Block of Petro Poroshenko “Solidarity” (“European Solidarity”) received commission members who used to represent at the presidential elections Petro Poroshenko, Yuliya Lytvynenko, and Volodymyr Petrov. The largest share of commission members who used to represent in the DECs Oleksandr Vilkul and Yuriy Boyko at the Presidential elections, at the early parliamentary elections were delegated to DECs as nominated by “Opposition Block.” AU “Batkivshchyna” became a recipient of DEC members who represented Yuliya Tymoshenko, Mykola Haber, and Andriy Novak at the presidential elections. Radical Party of Oleh Liashko mostly received former DEC members from Oleh Liasko and Ruslan Ryhovanov.
Nomination and Registration of Candidates for the People’s Deputies of Ukraine
The Law of Ukraine “On Elections of People’s Deputies of Ukraine” provides for a number of procedures to nominate, register, and cancel the registration of candidates for people’s deputies of Ukraine.
Nomination of candidates from political parties started on the first day of electoral process (May, 24) and completed 40 days before the election day (until June, 10, inclusive). During this short term, political parties had an opportunity to nominate candidates for people’s deputies, both on the national constituency and in one-mandate districts. From June, 10, until June, 20, political parties submitted documents to the CEC to register their candidates on national and on one-mandate constituencies. Self-nominated candidates nominated themselves and presented documents to the CEC from May, 4, until June, 20. Before June, 25, the CEC shall have completed the process of registering candidates for people’s deputies of Ukraine.
The law on parliamentary elections does not include any detailed procedures to nominate candidates of political parties, while the procedure is established by the parties themselves. In fact, the only requirement to parties is to nominate their candidates during the party conventions (meeting, conference) which conduct is regulated by statutory documents. In particular, the law is not directly binding political parties to provide for open conventions for media and NGOs; it does not set any minimum number of delegates at the meeting to nominate candidates, or any duty to make public the list of candidates before the documents are submitted to the CEC. Moreover, the Law sets the deadline for holding conventions of political parties to nominate candidates (June, 10, inclusive).
Lack of comprehensive legal regulation for the nomination process for political parties is justified, taking into account international standards of party activities and recommendations of the Venice Commission on the previous versions of election law in Ukraine. The point is in the importance of avoiding excessive interference of the state into party affairs and efficient provision of autonomy of political parties. In particular, the Opinion of the Venice Commission on the Law of Ukraine “On Election of People’s Deputies of Ukraine” regulating the regular elections in 2016 mentions the high level of interference of the state into internal party processes.
According to the Commission, excessive interference into internal party processes manifested itself by introducing requirements for minimum number of delegates for a party convention, notifying the CEC and media about such conventions, presenting data on the candidates (data on educational background, occupation, etc.). As the Venice Commission stated, within the environment of free competitive party system, parties are interested to inform the public on their activities, while interference of the state shall not be that high (Opinion of the Venice Commission dated 02.03.2006 available at: https://zakon.rada.gov.ua/laws/show/en/994_749). The position was also supported in the common opinion of the Council for Democratic Elections and the Venice Commission in 2001 on the draft Law of Ukraine “On Election of People’s Deputies of Ukraine” drafted in line with the Decree of the President of Ukraine “On the Working Group on Improving the Election Law” dated 02.11.2010. The Opinion positively assesses the fact that the provisions of the Law do not any longer include any procedure for compiling and approving the party list. Instead, the document stated that a party shall run the process in accordance with the procedures stipulated in the statute (Available at: https://zakon.rada.gov.ua/laws/show/994_a54).
Despite the justification of guarantees for autonomy of political parties, OPORA calls attention to the signs of abuse of legal provisions on nominating candidates of political parties for the early parliamentary elections in Ukraine.
A number of political parties notified the media on excluding certain candidates from the earlier approved electoral lists due to their alleged integrity or refusal to run for candidacy coming from the person himself/herself (parties “Servant of the People,” “European Solidarity,” “Holos” (The Voice)). Moreover, the public and the media found out the facts of including candidates into party lists shortly after nominating party conventions even though they have not been announced before (Oleksandr Yefremov on a list of “Opposition Block” at No 10, while another candidate used to be listed there). The reports were coming to observers and the media after June, 10, when the parties had no right to hold conventions to nominate their candidates. In addition, certain parties held conventions during several days, with breaks, which could pose obstacles for all delegates from the regions of Ukraine (“The Voice”, “Servant of the People”).
Another illustration of the nomination of candidates was the prevailing practice among political parties not to make public the full lists of candidates both on a national and on one-mandate constituencies. The fact aggravates the suspicion of journalists and observers on holding rotations on the lists of candidates without holding party conventions, and beyond the term set by the law.
The CEC does not have any authority to assess the compliance of parties in their statutory requirements when organizing events to nominate candidates. Even in case of introducing changes to the party list without having the party convention, the CEC shall have no clear grounds to reject the registration of candidates. However, according to OPORA, in the process of reforming the election law, it is important to find an efficient balance between the autonomy of parties and the possibility to prevent cases of excluding delegates of party conventions from the process of nominating candidates.
As of the last day of submitting documents for registration (June, 20), the Central Election Commission registered 1,913 candidates for people’s deputies, of which 1,021 persons were nominated by political party lists in a national constituency, and 892 candidates were nominated in one-mandate constituencies (including 744 self-nominated candidates and 148 party candidates). Even though the CEC is still considering the documents presented by candidates and parties, it may be expected that the number of persons willing to run for candidacy is going to be lower than at the 2014 early elections (3,379 candidates for people’s deputies).
The right to nominate candidates in a national constituency (as of June, 19) was used by 14 parties (at the 2014 early parliamentary elections, 31 parties nominated their candidates on a national constituency). The longest lists of candidates were submitted by the AU “Svoboda” (224 persons) and a Radical Party of Oleh Liashko (217 persons). As of June, 20, 6 parties had their candidate lists registered on a national constituency (out of 14 who submitted the documents for registration of the election list).
Providing for Gender Equality in Voting Lists of Political Parties
Acting law on political parties does not establish any obligation for political parties to provide for equal representation of men and women in the election lists of candidates. OPORA and other organizations have multiple times highlighted this shortcoming of the election law that the Parliament of Ukraine failed to eliminate. Political parties applied certain effort themselves to provide for gender balance in candidate lists. However, in the future, the state shall establish legal guarantees for equal representation of men and women in electoral process.
Non-affiliated Observation at the Ukrainian Parliamentary Elections
On June, 3, the Central Election Commission completed the process of registering NGOs at the early parliamentary elections. The right to obtain the permit for observation over elections was granted to NGOs registered under the law which statutory activities list aspects related to electoral process and observation therefor.
In general, the Central Election Commission, on May, 24 – 31, received applications to have official observers from 170 NGOs. Out of them, 163 NGOs were granted permits for observation. The number is higher than at the recent presidential elections, when the official right for observation was granted to 138 NGOs.
OPORA analyzed the list of NGOs in terms of election observation experience, links to political parties/candidates, etc. Out of 163 NGOs, 95 (58%) had had previous experience of election observation. However, most of them have done it only once, at the 2019 regular Presidential elections. For other 68 organizations, this electoral process is a virgin experience as most of them have been established shortly before the elections.
Over 25% of all the registered NGOs running the observation over electoral process were founded shortly before the 2019 elections. Six NGOs were registered by the Ministry of Justice after the start of election campaign. They include, among others, three organizations with a similar name to one political party:
- NGO “FOR THE SERVANT OF PEOPLE”;
- NGO “SERVANTS POPULAR”;
- NGO “A POPULAR SERVANT”.
Links of NGOs to political parties directly go against the most important principles of civic non-party observation, such as keeping a politically neutral position of the NGO and providing for equal attitude to all electoral actors. However, some NGOs do not hide their links to political parties, which can be deduced even from the organization’s name. For example:
- NGO “UKRAINIAN STUDENT FREEDOM”;
- Khmelnytskyi regional civil society organization “For concise actions”;
- All-Ukrainian NGO “Women of Batkivshchyna” // “Women of the Homeland”;
- NGO “UDAR (Ukrainian Democratic Alliance for Reforms) of Vitali Klitschko”;
- NGO “FUND OF OLEKSANDR VILKUL “UKRAINIAN PERSPECTIVE”;
- NGO “ZE TEAM”;
- NGO “SERVANTS OF THE PEOPLE”;
- NGO “Batkivshchyna Moloda” // Young Batkivshchyna;
- NGO “ALL-UKRAINIAN ASSOCIATION “NASHI” // “OURS”;
- NGO “VOLIA!”;
- NGO “All-Ukrainian association “Spilna Sprava” // “Common Goal”.
In the situation when the law allows for official observation by the parties and candidates, observation activities of politically affiliated NGOs discredits the institute of non-party observation and poses risks for politically motivated interference into the course of election process, in particular, on election day.
Breaking Election Law and Legal Proceedings
Breaking Election Law
According to data from the National Police of Ukraine:
- From May, 21 to 31, police initiated 19 criminal proceedings on violations in the fields of voting rights of citizens: eight of them under Article 158 of the CC (falsification of election documentation), seven – under Article 160 of the CC (vote buying), three – under Article 157 of the CC (obstacles for voting rights), one – under Article 158-1 of the CC.
- From June, 1 to 20, National Police bodies:
- initiated 11 criminal cases on election related violations (one for each under part 3 of Article 175 of the CC (obstacles to voting rights), under part 2 of Article 158 of the CC, under part 4 of Article 158 of the CC (falsification of election documentation), under part 3 of Article 160 of the CC (indirect vote buying); two times for each of the part 1 of Article 159-1 of the CC (breaking the funding procedures for parties and election campaigns), and under part 2 of Article 160 of the CC (offering an illegitimate benefit to a voter); three proceedings under part 1 of Article 160 of the CC (accepting an illegitimate benefit by a voter);
- 7 materials drafted on administrative offense – one under part 1 of Article 212-14 of the AC (posting campaigning materials in unauthorized places), six files under Article 212-13 of the AC (campaigning without the source data).
During the election process, OPORA observers submitted 41 reports on administrative offenses under Art. 212-13 of the AC (campaigning without the source data) on over 100 facts of electoral fraud. The reports covered 27 electoral subjects in 12 regions of Ukraine.
The biggest number of reports was registered by OPORA observers in the Kharkiv region. They include cases of posting outdoor advertising without the source data for the candidate Kostiantyn Nemichev (registered on constituency 170 but he posted his campaigning materials also in other election districts).
The table on reports submitted by OPORA observers to the National Police on committing administrative offense against citizen voting rights
The parliamentary elections keep the trend of taking record of administrative offense committed, such as outdoor advertising placement as such documentation is easiest in terms of evidence base. At the same time, the tasks of checking commissioners and producers of such products, investigating the origin of funds for possible bringing to justice for the breaking of funding procedures for election campaign remain to be backbreaking for the National police.
During the election process, the courts considered four administrative cases. Of them, two were related to the appeal against the CEC decision to reject registration of candidates for people’s deputies.
On a case No 855/147/19, a rejection for registration was issued to Pichuhin D.S., due to impossibility to confirm that he was permanently residing on the territory of Ukraine in the eye of the Law of Ukraine “On Citizenship of Ukraine” (the information on crossing the state border of Ukraine was confirmed by the reference certificate issued by the State Border Guard Service of Ukraine). The court also took into account the data of the State Register of Voters offered by the CEC on the citizen’s withdrawal from the voting address in Ukraine. Moreover, the candidate autobiography did not mention any details on his residence address, family members, position, and place of work. Therefore, the court considered the candidate’s autobiography as not submitted. Thus, the 6th administrative court of appeals rejected to satisfy the lawsuit No 855/147/19.
On a case No 855/150/19, a prospective candidate Koval V.D. was rejected of registration since in the CEC’s opinion (who found the confirmation in the decision of the 6th administrative court of appeals), the fact that the candidate failed to include in the application for self-nomination the obligations to withdraw from the representative mandate in case of being elected as a people’s deputy of Ukraine, cannot be considered as a mistake or an inaccuracy in the presented documents, but proves the fact of absence of application as such. However, the Supreme Court canceled the first instance decision, recognized illegitimate and canceled the CEC resolution on rejection of registration. In the legal proceedings, it was found out that the person used a template from the CEC Website when filing the application. The template stated in case of person’s not having any other representative mandate, the warning shall be mentioned that “I hereby state that I do not have any other representative mandate incompatible with the mandate of the people’s deputy of Ukraine.” Further, on June, 4, 2019, the template of this application form on the CEC website was replaced for another one that did not contain the statement. Besides, the CEC rejected the registration of the prospective candidate who had downloaded the template from the website before. The Administrative court of cassation reached a conclusion important for the law-enforcement practice that a missing character, or a word, the use of inopportune or inaccurate term, expression, or not identical sentence shall not be an obstacle to understanding the content of the presented data, and shall be considered a mistake to be corrected or clarified.
It must be emphasized that the OECD/ODIHR report on observation over the early parliamentary elections on October, 26, 2014, stated that the CEC had a negative practice in 2014 to reject candidates’ registration for technical reasons due to minor omissions or mistakes, often without any notification to candidates thereon, and without offering any opportunity for them to correct it. OECD/ODIHR recommended to the CEC to develop templates of application documentation and introduce efficient mechanisms of notifications for prospective candidates on identified mistakes, which would allow them to correct such inaccuracies.
Decision on the case No 855/150/19 illustrates that concerns of the monitoring mission have not been taken into account in full. That is why OPORA calls the CEC to avoid rejections for registration for candidates on the grounds of formal mistakes or inaccuracies.
On the case No 855/145/19, it was appealed against the inaction of the CEC on failure to create one-mandate election districts for the early parliamentary elections on July, 21, 2019, on the territory of the AR of Crimea and the city of Sevastopol. The 6th administrative court of appeals referred to the Law of Ukraine “On Providing for Rights and Freedoms of Citizens and the Legal Regime on the Temporary Occupied Territory of Ukraine” and established that the dry land territory of the AR of Crimea and the city of Sevastopol was a temporary occupied territory covered by a special legal regime to conduct elections and referenda. Therefore, voting at the early parliamentary elections in Ukraine on July, 21, 2019, shall not be organized and conducted on the entire territory of AR of Crimea and the city of Sevastopol, which creates the grounds not to implement any activities there as to organization of preparation and conduct of early parliamentary elections. Citizens of Ukraine residing on the temporary occupied territories are entitled to exercise their voting rights during such elections by means of changing their voting places without changing their voting addresses.
On the case No 9901/278/19, to recognize illegitimate and invalid the Decree of the President of Ukraine No 303/2019 “On Early Termination of Office of the Verkhovna Rada of Ukraine and Appointment of the Early Elections” dated 21.05.2019, it was rejected to open proceedings under administrative law, since the Presidential Decree acts to exercise his powers in the field of constitutional legal relations but not under exercise of his administrative functions. That is why it falls under jurisdiction of the Constitutional Court of Ukraine, but not under administrative proceedings.
to the Verkhovna Rada of Ukraine:
- to provide for efficient process for consideration of amendments to the draft Election Code, and facilitate the approval of the document that takes into account the suggestions of the sectoral Working Group.
- to facilitate the approval of draft law No 8270 on providing for irreversible nature of punishment for electoral fraud in order to enhance opportunities to prevent electoral fraud.
to Central Election Commission:
- to provide for due informing of parties and enhance control over compliance with the electoral process of the statutory documents of potential electoral subjects in terms of holding conventions (meetings, conferences) with the nomination of candidates to participate in elections.
- to enhance control over compliance of electoral subjects with provisions of the law on the funding of campaigning, and specifically, in the turnover of costs of election funds of candidates.
to Law-Enforcement Bodies of Ukraine:
- to continue practices of holding activities and programs to raise the general competence levels of law-enforcement officers in identifying, taking record, and responding to electoral fraud.
to Electoral Subjects:
- to independently publish information on the sources and structure of revenues and expenses to fund election campaigning activities.
- to avoid unjustified statements or actions that might discredit activities of independent state institutions and undermine trust to electoral process.