MP candidates use material incentives to gain support of the voters, and this is the biggest challenge for democratic election of a new Ukrainian parliament. Law enforcement bodies often are not able to efficiently prevent such unfair forms of campaigning, taking into consideration that candidates use legal entities as third parties. However, all the incidents with features of indirect voter bribery, detected by OPORA's observers, can affect free voting process in certain districts.
Electoral "charity", which is traditional for Ukrainian elections, should receive a negative response not only from the law enforcement agencies acting against it, but also from the public, despising such a way of getting parliamentary mandate. Negative practices that were used in previous elections, are also applied during early parliamentary elections in Ukraine. This fact proves once again that it's necessary to improve the legislation guaranteeing punishment for electoral crimes. Thus, Verkhovna Rada of Ukraine should start consideration of Draft Law #8270 on Improvement of the Criminal Code and the Code of Administrative Offenses in the Field of Crimes Against Electoral Rights of Citizens.
According to OPORA's findings, incidents with features of misuse of administrative resources were not systematic or centralized during election process in June 2019. Although it is a positive assessment for current stage of election process, local incidents involving misuse of administrative resources still do bring certain concerns. Officials from a number of local authorities are involved in campaigning efforts of candidates, make public statements and calls in support of electoral subjects. Taking into account wide-scale participation of local political leaders in elections, it can be really hard for the certain electoral districts to prevent the misuse of administrative resources. OPORA emphasizes that public officials should diligently prevent the misuse of budget administrative resource aimed at gaining electoral benefits. This task is particularly related to activities of the current MPs of Ukraine, many of whom participate in public events, dedicated to realization of local development or social protection programs.
OPORA's observers draw attention to the fact that official duties of current MPs and their campaigning efforts as candidates in early parliamentary elections are not separated. As a result, current MPs of Ukraine get noncompetitive advantages in the election process thanks to participation in official events of public authorities, representation in mass media, and financing of hidden advertising from sources other than electoral funds. This problem is not easy to resolve at a legislative level, but requires further expert and parliamentary discussion.
Only OPORA's observers have sent 455 statements and reports on administrative offenses and crimes to the National Police of Ukraine. Thus, according to the frequency of reported issues, electoral subjects usually violated campaigning restrictions. 66% of all statements (301) concerned campaigning without an imprint, 23% (106) concerned violations campaigning rules (Article 212-10 of the Code of Administrative Offenses of Ukraine (CAOU)), including financing from other sources that electoral fund, 5 statements concerned placement of campaign advertising in unauthorized places (Article 212-14 of CAOU), 1 statement concerned violation of city planning rules (Article 152 of CAOU). Observers have also reported 28 crimes: 22 violations of campaign financing rules (Article 159-1 of the Criminal Code of Ukraine (CrCU)), 4 reports on voter bribery (Article 160 CrCU), 2 reports on the incitement of hatred (Article 161 of CrCU).
Taking into consideration that there were some incidents that included damage to the premises of the election headquarters and outdoor advertising of some candidates and parties, OPORA calls on law enforcement bodies of Ukraine to pay special attention to forceful provocations against electoral subjects.
The registration of candidates was realized within time constraints established by the law. However, some decisions of the CEC on denial of candidate or party registration, based on consideration of registration documents, have complicated the realization of some electoral procedures. In particular, activities of the CEC in regard to the repeated approval of the text of ballot paper, while the law doesn't regulate the repeated drawing of lots to determine the sequence of parties in a ballot, were questionable from the legal perspective and have negatively influenced the realization of the principle of equal opportunities.
As of June 28, the CEC registered 5,853 candidates for MPs, including 3,179 (54%) running in 199 single-mandate constituencies, and 2,674 (46%) in the nationawide constituency. It has also registered 21 political parties, which nominated candidates in the nationwide constituency. On June 29, based on decision of the Supreme Court, the CEC registered MP candidates (88 persons) included in the electoral list of the New Forces Movement of Mykhailo Saakashvili Political Party. It has also registered 9 candidates from this political party in single-mandate constituencies.
Thus, 25% of non-party candidates run in a single multi-mandate constituency. Besides that, 307 candidates participating in early parliamentary elections are current Members of Parliament.
Existing financial and political incentives have a positive effect on making the representation of women and men in party electoral lists equal. 13 of 22 political parties that nominated candidates in the nationwide constituency included more than 30% of women in their electoral rolls. However, only 7 political forces included 30% of women in the top 30 candidates in electoral lists. Majoritarian component of the electoral system remains significantly less favorable for the implementation of such incentives. As a result, 25 single-mandate constituencies don't have any female candidates registered.
The Central Election Commission has passed 128 resolutions refusing to register candidates for MPs of Ukraine. Taking into consideration the number of candidates nominated by parties and self-nominated candidates, the number of refusals does not seem to be excessive. However, the controversial refusal to register candidates nominated by the New Forces Movement of Mykhailo Saakashvili shows that the legislation must be improved to establish legal certainty for nomination and registration procedures.
In June 2019, candidates and parties were not very active in campaigning and used only outdoor and media advertising. Only 11 political parties organized campaigning at a regional level. Thus, parties European Solidarity, Ukrainian Strategy of Hroisman and Opposition Platform - For Life have had the most wide-scale public campaigns in regions. Such early campaigning efforts, which are not regulated by the electoral legislation, remain to be the biggest issue at this stage of the election process, resulting in uncontrolled financing of de-facto campaigning.
Results of Registration of MP Candidates
On June 25, 2019, the registration of candidates for Members of Parliament was completed. As of June 28, the Central Election Commission registered 5,853 candidates, including 3,179 (54%) running in 199 single-mandate constituencies, and 2,674 (46%) candidates, nominated by political parties in the nationawide constituency. In total, the number of registered candidates has not become a record-breaking for Ukrainian elections and has not exceeded the number of candidates who participated in 2014 early parliamentary elections (6,627).
21 political parties have registered list of candidates in national constituencies, compared to 29 political parties in 2014. The CEC refused to register three political parties: the Union of Left-Wing Forces, the Communist Party of Ukraine and the New Forces Movement of Mykhailo Saakashvili. However, the latter had successfully appealed against the CEC decision in the Sixth Administrative Court of Appeals in Kyiv. As a result, the Supreme Court supported the decision of the Administrative Court of Appeals on June 29, and obliged the CEC to re-register the New Forces Movement party.
52 political parties have nominated their candidates (1,437 in total) in single-mandate constituencies. This is substantially more than in 2014 early parliamentary elections, but still less than in 2012, when 81 political parties nominated candidates in single-mandate constituencies during parliamentary elections. However, most of registered majoritarian candidates (1,742 persons or 55%) are independent. There are 16 candidates in average, nominated in single-member constituencies, compared to 18 in 2014. District #133, with the center in Odesa, has the largest number of majoritarian candidates - 50. Districts #46 (Bakhmut, Donetsk oblast), #177 (Kupiansk, Kharkiv oblast), #178 (Balaklija, Kharkiv oblast) and #188 (Khmelnytskyi city) have the smallest number of majoritarian candidates - 6 in each. Servant of the People is the only party that has nominated candidates in each single-mandate majoritarian constituency. 34 political parties have submitted lists of candidates that include fewer than ten people. Five parties did not nominate candidates in the national constituency at all, even though they have a significant number of candidates in single-mandate constituencies (Ukrainian Strategy of Hroisman is one of them).
There are no women in the list of candidates in 25 single-mandate constituencies, which are located in 16 oblasts of Ukraine. The largest number of women candidates (10 people) is nominated in district #221 in Kyiv (Pechersk District) and district #95 in Kyiv oblast (city of Irpin).
The largest number of candidates in multi-mandate constituency, (over 200 persons) is in the lists of five political parties - Opposition Bloc, AUU Svoboda, Radical Party, AUU Batkivshchyna and Servant of the People.
OPORA has analyzed that 307 current MPs of Ukraine are running again for parliamentary mandates in these early elections. 115 persons are nominated in the nationwide constituency. 192 MPs will fight for votes in the single-member constituencies (149 of them nominated independently, and others nominated by parties). 18 parties included current MPs in their lists of candidates, nominated in multi-mandate or single-mandate districts. The European Solidarity party has nominated the biggest number of MPs (29 persons, 21 in party lists and 8 in single-mandate districts). AUU Batkivshchyna and the Opposition Platform - For Life nominated 21 and 20 candidates respectively. The following parties have also nominated many current MPs: Opposition Bloc (17 persons), Radical Party (16 persons), Samopomich Union (13 persons), and Ukrainian Strategy of Groisman.
The absolute majority of candidates who run both in the multi-mandate constituency and in majoritarian districts are middle aged (36-59 years old) - 62% and 66% respectively. There is almost three times less elderly candidates (60 and more years) than the candidates from the category "youth" (up to 35 years) - only 9% in multi-mandate constituency and 7% single-mandate districts. Almost one third of parliamentary candidates represent young people up to 35 years: 29% in multi-mandate constituency and 28% in majoritarian districts.
As for employment, only 16% of party-list candidates and candidates in single-member districts are temporarily unemployed. The following parties among those which have registered more than 100 candidates in multi-mandate and single-mandate constituencies have the largest indicator of the temporary unemployment of their candidates: Social Justice (33%) and Svoboda (25%). Parties Holos and Samopomich Union have the smallest indicator ( 4% and 7% respectively).
91% of all registered candidates have higher education, 6% have vocational and technical education or secondary specialist education, and only 3% of candidates have got general secondary education. Party Social Solidarity has the smallest percentage of candidates with higher education among parties that have nominated over a hundred of candidates (87%), and parties AUU Batkivshchyna and the "Syla I Chest" party have the biggest number (97%).
According to Article 8(10) of the Law of Ukraine on Political Parties in Ukraine, every party should determine quotas for minimal representation of women and men in nationwide party lists for parliamentary elections in it's statute, and women representation should be 30% or more.
Out of the 21 political parties registered as of June, 28, over 30% of women was included into the lists of 13 political actors. The largest number of women are found in the lists of the parties “Social Justice” (44%, or 68 women), “Power of the People” (43%, or 20 persons), and the Radical Party (41%, or 90 persons). It is only 17% of women included into the lists of AU “Svoboda,” and 19% of women on the lists of the “Patriot” party. The number of women on the lists of other political powers amounts from 22% to 29%. Upon the whole, women make 30.6% out of total number of candidates running by party lists. It shows steady progress in getting closer to the gender balance of candidates on party electoral lists. At the same time, the situation is not that optimistic, taking into account the fact that the top part of the electoral list (the most likely to get through) men still prevail. Out of 21 political parties, only 7 political powers have a share of women under 30% in the top 30 of candidates. Those are the parties “Social Justice” (16 women in the top 30 of the list), “European Solidarity” (12 women), “Power of the People” and the Green Party of Ukraine (11 women each), AU “Fakel”, “Samopomich” and “Holos” (10 women in each). While other parties had a much lower number. In fact, the parties reach the minimum gender balance due to including women on the positions that are least winning. For example, the party list of “Opposition Platform – For Life” includes 60 women. However, only 3 of them are included into the top 30. Among the top 30 candidates of the “Civic Position,” there only 3 women (the total number of women on the list is 39), “Opposition Block” – 4 women (85 in total), AU “Batkivshchyna” – 5 women (61 in total), Radical Party – 5 women (90 in total), “Servant of the People” – 6 women (66 in total). A common practice for Ukrainian voters is to include into party electoral lists persons who are formally non-affiliated and do not belong to parties nominating them. At this election, 25% non-affiliated candidates are running on a single multi-mandate constituency (at the 2014 parliamentary election, there were 40% of them). Half of the parties (12) that nominated candidates in a multi-mandate constituency have over 30% of the non-affiliated deputies on their lists. The record high numbers of the non-affiliated candidates on electoral lists are found with the “Shariy Party” (69% non-affiliated), “Servant of the People” (57%) and AU “Fakel” (54%). On the other hand, there are no non-affiliated candidates in the electoral list of the “Power of the People” and only 1% of non-affiliated candidates on the list of the “Oppositional Platform – For Life.”
It is partially due to the lack of regulatory options to create electoral blocks of parties which candidates decided to become part of informal associations of electoral lists and had to terminate their membership in their party, or any other party. Therefore, a large number of candidates of such united party teams invalidated their membership in their parties that have not been officially registered as participants of electoral process. Another reason for this situation is the fact that new political parties are compiled mostly by virtue of non-affiliated persons, due their short existence.
Analysis of Rejections to Register Candidates and Parties
In total, the CEC adopted 128 resolutions on rejection to register candidates for peoples’ deputies, such as n the following grounds:
- Failure to comply with requirements on residence over the last preceding years – 10 CEC resolutions on 11 potential candidates for peoples’ deputies.
- Failure to comply with requirements on paying a monetary deposit – 20 resolutions of the CEC on 21 potential candidate and 1 political party “Union of Left Forces.”
- Lacking autobiography or its mandatory elements provided by the Law of – 41 resolutions of the CEC on 56 potential candidates. In the 3 resolutions, the CEC also reported to the National Police on the formal elements of crime provided by Art. 157 of the CCU on possible abuse of the principle of free elections (the “twin” technique when they cloning the name of the party).
- Failure to comply with requirements to filing the application with the duty to withdraw from the representative mandate or terminate activities incompatible with the deputy mandate, or consent for publication of biographical data – 16 resolutions of the CEC on 24 potential candidates. In 1 resolution, the CEC also reported to the National Police on the formal elements of crime provided by Art. 157 of the CCU on the possible violation of the principle of free elections (the “twin” technique).
- Incompliance with the age limits – 2 resolutions of the CEC.
- Failure to comply with requirements on no criminal record for intended crime – 1 resolution of the CEC.
- Failure to comply with the requirements on running as candidates only in one constituency – 1 resolution of the CEC.
- Failure to comply with the requirements on nominating candidates for deputies by a party – 1 resolution of the CEC on a political party “Movement of New Forces of Mikhail Saakashvili.”
- Failure to comply with the requirements on nominating candidates for deputies from the party communicating propaganda of the Communist and/or National-Socialist (Nazi) totalitarian regimes or their symbols – 1 resolution of the CEC on the Communist Party of Ukraine.
- In total on incompliance:
- on incompliance with requirements on residence and payment of monetary deposits – 1 resolution of the CEC on 1 potential candidate;
- on incompliance with requirements on residence and lack of data to be mandatory included into autobiographies – 2 resolutions of the CEC on 2 potential candidates;
- on incompliance with requirements on paying monetary deposits and lack of data in autobiographies of the above mentioned requirements – 9 resolutions of the CEC on 14 potential candidates, failure to comply with the requirements, and lack obligation to withdraw from the representation mandate in the application for registration – 2 resolutions of the CEC on 3 potential candidates;
- on incompliance with requirements in the autobiography and lacking statement on obligation to withdraw from the deputy mandate – 3 resolutions of the CEC on 3 potential candidates.
To enforce the decision of the Supreme Court and pursuant to the opinions of the court, the CEC registered candidates for people’s deputies of Ukraine Yatsenko M.V., Minko S.A., Koval V.D., Nasedkin P.A., Martiyan S.M., Molodtsov O.V., Barvinenko V.M., Ivoylov A.A. and Kozakov Ye.Yu. who are running in the one-mandate constituencies No 25, No 80, No 169, No 78, No 98, No 134, No 141, No 153 and No 153, respectively, as self-nominated candidates at the early parliamentary elections in Ukraine.
Moreover, to enforce the decision of the Supreme Court, and upon consideration of the relevant documents, and taking into account the protocol of the special convention of a political party “Movment of New Forces of Mikhail Saakashvili” dated June, 10, 2019, submitted by the political party to enforce resolutions of the Supreme Court as corrected version, in accordance with the opinions of this Court, the CEC registered 88 candidates for people’s deputies of Ukraine included into electoral lists of a “Movement of New Forces of Mikhail Saakashvili”, on a national multi-mandate constituency at the early parliamentary elections in Ukraine on July, 21, 2019. In addition, it was registered 9 candidates for people’s deputies of Ukraine nominated by the political party in one-mandate constituencies at the early parliamentary elections in Ukraine.
Campaigning Activities of Candidates
Despite the early elections of the people’s deputies of Ukraine, the de facto election campaign started before the official launch of electoral process. The most notable activities were shown by potential majoritarian candidates in one-mandate constituencies, while political parties were less active. Upon the whole, the early election activism of parties and candidates during the first month of campaign was not saturated with events or activities on the regional level. The least encountered segment of campaigning on the part of all potential electoral subjects was direct work with voters. An exception is with the current people’s deputies who activated their direct work with citizens in a format of reporting on their performance in the parliament. What is more, the reporting was exercised not only by organizing meetings with voters but also by using media, street campaigning and advertising on outdoor carriers. Public activities of a large number of potential majoritarian candidates focused on charities and initiatives related to various projects funded from the state budget. In most cases, such activities were not accompanied by direct campaigning slogans.
Financial costs on various kinds of campaigning by potential electoral subjects were large, but the early type of campaigning does not provide for due declaration and makes it impossible to exert control over de facto electoral costs. In legal terms, the fact of pre-election campaigning arises from the moment of registration of candidates and parties, and is reduced to official timeline for the electoral process. In practice, public activities of potential participants of the race focus on motivating voters to vote in favour or not to vote for certain candidate (party) precede the moment of official registration.
49% of candidates for one-mandate majoritarian constituencies were registered with the CEC in the last two days assigned by the Law to complete this stage. Therefore, it is no wonder that from the moment of launching the electoral process, much ore intense activity was exercised by potential election participants (parties and candidates), but not the officially registered electoral subjects. Campaigning activities of potential electoral subjects were concentrated mostly in region centers and big cities, while small settlements only experienced sporadic activities by candidates in the first weeks of June. The most dynamic early election campaign of potential candidates unfolded in Kyiv and Lviv regions. On the other hand, Donetsk and Luhansk regions have a low intensity of campaigning.
As of the end of June, 11 parties may be identified that used campaigning activities on the regional level, such as: “European Solidarity,” “Ukrainian Strategy,” “Opposition Platform – For Life,” AU “Svoboda,” “Holos,” Agrarian Party of Ukraine, AU “Batkivshchyna,” Radical Party of Oleh Liashko, “Samopomich” Union, “Servant of the People” and “Opposition Block.”
The most intense and largest scale early campaigning was that of the “European Solidarity” party. OPORA observers recorded multiple manifestations of party campaigning in all regions of Ukraine (including also outside the region centers). The same large scale in terms of territory covered in May and June 2019 was the campaigning of the party “Ukrainian Strategy of Groysman”. Leaders in campaigning activities also include the party “Opposition Platform – For Life”. Their political advertising was recorded in most regions of Ukraine. Early campaigning of the parties “Holos” and AU “Svoboda” was recorded in half of regions of Ukraine. Other political forces were less active in terms of different forms of early campaigning activities. At the same time, political advertising of the parties AU “Batkivshchyna”, Agrarian Party of Ukraine, Radical Party, and the “Samopomich” Union was sufficiently notable only in one third of regions in Ukraine.
In June, 2019, outside and media advertising were the most typical forms of campaigning activities among potential and actual participants of electoral process. Campaigning on outside advertising media (billboards, city-lights, posters) was most intensely used by political parties, not by individual candidates. According to observers’ estimates, the largest scale territorial coverage and the highest quantitative indicators were typical for the outside advertising of the “European Solidarity” that unfolded the campaigning immediately after rebranding (billboards and city lights with a motto “Choose NATO and EU! Join in!”, “The most important thing is not to lose the country!”). A slightly less visible was the outside campaigning of parties “Ukrainian Strategy of Groysman”, “Holos” and “Opposition Platform – For Life.” It must be mentioned that some parties (such as “Holos”, “Servant of the People”) started to massively present printed campaigning materials only in the end of June, upon completion of the registration stage.
Among the parties, political advertising in regional media was most often than others used by “European Solidarity”, “Ukrainian Strategy of Groysman”, “Servant of the People”, “Holos”, Radical Party of Oleh Liashko, AU “Svoboda”, AU “Batkivshchyna”, and the “Samopomich” Union. At the same time, the media advertising on the regional level was more intensely used by majoritarian candidates, especially the current people’s deputies. Social media was most intensely used for campaigning, according to OPORA observers, by political parties “Servant of the People” and the “Holos”.
In terms of the format of campaigning activities, a very popular type among potential candidates were festive events and celebrations in the places they visited. Moreover, current people’s deputies have become much more active in informing voters on the budget funds engaged into constituency, such as part of subventions for social economic development of communities. During meetings with voters that had signs of campaigning, potential candidates mostly informed them about repairs or opening of infrastructure facilities, upgrading of street lights, procurement of vehicles, machinery and equipment. Legal classification and assessment of such activities is controversial. Under current circumstances, standing people’s deputies refer to the Law “On the Status of a People’s Deputy” while often ignoring the requirements of election law on procedures for pre-election campaigning.
Among the political parties, direct work with voters in a format of mass events was most actively exercised by the “Holos” party. In particular, they opened “Co-workings of Changes” – platforms for communication of activists, and conducted numerous regional public events as part of the “Tour of Change.” “European Solidarity”, in their turn, promoted a format of open offices to hold regular meetings with voters. Street campaigning methods were often used by the political parties “Civic Position”, AU “Batkivshchyna” and AU “Svoboda,” They traditionally disseminate their own printed campaigning materials (newspapers and flyers) through the street tents.
Organizational support of election campaigns by local teams and political party branches at the equator of electoral process is still very low. Election offices of political forces or candidates have not actually shown any public activities, except for search and recruitment of candidates for the polling station election commissions. The political forces that used to have a multidivisional network of regional offices at the recent presidential elections (AU “Batkivshchyna”, “European Solidarity”) maintain and actively use their organizational capacity for communication with voters. At the same time, no political party developed a full-fledged network on the grounds (on the level of regions and districts) to organize the election campaign. Majoritarian candidates nominated by political parties for the most part provide for financial and organizational support of their election campaigns on their own.
OPORA observers confirm the partial internal party conflicts on the grounds accompanying the process of early campaigning and nomination of candidates. One of the reasons for the conflicts is in uncoordinated positions of local party branches on the one hand, and the central or regional party branch management, on the other hand, on specific candidates for constituency.
Breaking Election Law and Democratic Standards
Early campaigning, funding of election campaigning other than from election funds, other violations of campaigning rules
Political parties, potential and CEC registered candidates for people’s deputies of Ukraine have been rather active in the pre-election campaigning before their own official registration and/or opening of accounts of election funds (political parties or candidates cannot open accounts of their election funds prior to registration with the CEC).
According to OPORA observation, key forms of such indecent campaigning was the posting of political advertising on the outside advertising media, dissemination of printed campaigning materials without due source data, and conducting mass events to support parties or candidates prior to their registration or opening of election funds. The practice of early campaigning or campaigning without using the money of election funds is not a unique phenomenon for national and local elections in Ukraine. However, it pointed another time to the problems in providing transparency and accountability of funding sources for electoral political activities. At the early parliamentary elections in Ukraine, observers recorded a number of cases when NGOs were responsible for posting political advertising in favour of a political party (there were nationwide cases when the same name NGO as the “Opposition Block” party was responsible for publishing materials with signs of campaigning).
Pursuant to the current law, parties and candidates have a right to start the pre-election campaigning on the next day after CEC adopts a decision on their registration. Within ten days, political parties and candidates in one-mandate constituencies must open an account for election fund. At the same time, the Law clearly states that funding of pre-election campaigning can be possible only at the cost of election funds (par. 4, Part three of Article 3 of the Law of Ukraine “On Election of People’s Deputies of Ukraine”). On the other hand, it must be highlighted that the Law of Ukraine prohibits the use of the own money of parties, candidates for deputies, or funds from other sources to run campaigning, including also as initiated by voters.
Current version of the Law “On Election of the People’s Deputies of Ukraine” established the maximum size for election fund of a party or a candidate (90 thousand the size of minimum wages for a party, and 4 thousand the size of minimum wages for a candidate in one-mandate constituency). The provision emphasizes the intention of legislators to restrict the impact of money on election process by establishing the maximum size of election fund. Large-scale expenses on de facto campaigning prior to registration of candidates for people’s deputies of Ukraine or on running the campaign other than from election funds could undo the set limits for the size of the fund of a party or a candidate.
It must be noted that it remains unclear for electoral subjects how to treat the possibility for a party nominating a candidate on one-mandate constituency to transfer money into his/her election fund. Under part 1 of Article 50 of the Law on election of people’s deputies, the election fund of a candidate for a deputy in one-mandate constituency shall be formed at the cost of the candidate’s own money and donations of persons who shall be entitled by the Law of Ukraine “On Political Parties in Ukraine” to make donations to support parties. On the list set by the Law “On Political Parties in Ukraine,” there is a ban for transferring donations only by “another party.” The provisions were developed for funding of political parties and they do not account for peculiarities of feeding election funds of majoritarian candidates. Instead, the Law on Election of People’s Deputies does not include any provisions that are available in the Law of Ukraine “On Election of the President of Ukraine”, in particular, providing that the election fund of a candidate for the position of the President of Ukraine shall be formed at his own cost, cost of a party nominating the candidate, and at the cost of donations from persons entitled by the Law of Ukraine “On Political Parties in Ukraine” to make donations to support parties (part 1 of Art. 43 of the Law “On Election of the President of Ukraine”). As of today, there is no official clarification of the CEC and the NAZK (National Agency on Corruption Prevention) on the matter. In order to get the clarification, Civil Network OPORA submitted a request to the CEC; activists of the “CHESNO” movement have submitted a similar request before, too.
OPORA observers actively interacted with the territorial branches of the National Police of Ukraine on documenting and legal judgement of cases of having candidates and representatives of political parties run campaigning prior to acquiring the status of electoral subjects and official opening of accounts of election funds, and other cases of breaking legal requirements for pre-election campaigning.
Since the start of electoral process, OPORA representatives alone have submitted to the National Police 455 reports and notifications on administrative offense and crime. Most of them – 66% (301 reports) were about campaigning without the source data (Art. 212-13 of the CUoAO), 23% (106 reports) – breaking the rules for campaigning (Art. 212-10 of the CUoAO), including also the funding other than from election funds, 5 reports on posting campaigning in unauthorized places (Art. 212-14 of the CUoAO), 1 report on posting campaign advertising against the rules of landscaping (Art. 152 of the CUoAO). In addition, 28 reports committing crimes: 22 reports on breaking the rules for funding election campaigns (Art. 159-1 of the CC), 4 reports on vote buying (Art. 160 of the CC), 2 reports on incitement to hatred (Art. 161 of the CC).
The largest number of violations was revealed by observers of the Civil Network OPORA in Zaporizhzhia region (125 facts of violations, under which 77 reports were submitted to the National Police, the largest number of violations was revealed in the constituency No 76 (34 reports: 16 reports on posting campaigning advertisements by candidates from the political party “Opposition Block” and a candidate nominated by this party Volodymyr Buriak; 2 – from the “Ukrainian Strategy of Volodymyr Groysman”), in Kharkiv region (115 facts of violations recorded, the largest number of cases in the region was revealed in constituency No 170 – 34 violations, of them 30 – on posting materials with signs of campaigning on behalf of the “Opposition Block” NGO), in Kirovohrad region (34 facts of violations recorded, the largest number of cases was revealed in constituency No 99 – 23 violations (10 of them related to posting advertisements without the source data and with signs of campaigning by the party “Opposition Platform – For Life”, 6 – fromt he party “Ukrainian Strategy of Volodymyr Groysman”), 5 – from the “Radical Party”, 3 – from a people’s deputy Oleksandr Horbunov).
The facts of direct vote buying officially reported to police in 4 cases under Art. 160 of the CC of Ukraine were revealed by observers in constituency No 60 (Donetsk region). Thus, in the city of Volnovakha, it was installed 10 benches on behalf of the candidate (standing people’s deputy) Dmytro Lubinets. In constituency No 137 (Odesa region), a candidate for people’s deputy Klimov L.M. organized a teenage football cup. During the event, they resented printed materials with the candidate’s name, while the candidate personally presented to representatives of each football teams 2 packages with football uniforms and 5 footballs for each; constituency No 129 (Mykolayiv region) registered a candidate Volodymyr Tymoshyn forwarded on behalf of the lawyers association “Tymoshyn and Partners” 5 cardiographs to Halytsynove outpatient clinic. Report on the present was posted on the website of a news agency and on personal Facebook profile of the candidate; constituency No 100 (Kirovohrad region) - candidate Luchkov Ye.P. forwarded to Bobrynets post office of “Ukrposhta” six new bicycles for the needs of postmen.
In constituencies No 134, 135 of Odesa region, observers submitted reports under Art. 161 of the CC (incitement to ethnic, racial, or religious hatred). Thus, it was revealed campaigning materials in favour of a political party “Opposition Platform – For Life” with images of candidates from this force Vadym Rabinovich and Illya Kyva. They contained slogans calling for violence, infringement of rights and freedoms of citizens, such as: “If I had it my way, I would shoot away the buses Donetsk-Kyiv and Kyiv-Donetsk” and “How did I feel when I was killing the enemies? I’ll be frank – it was excitement!”. At the same time, the “Opposition Platform – For Life” classified the billboards as black PR against them.
According to the organization estimates, the staff of the National Police of Ukraine usually duly responded to the reports on violations of campaigning rules. On the other hand, intensity of violations of regulations for campaigning at the parliamentary elections might be higher as compared to the regular 2019 Presidential elections in Ukraine. It is related to the incommensurately higher number of candidates possibly interested in gaining competitive advantages by breaking the rules for pre-election campaigning.
Actual campaigning activities of standing people’s deputies of Ukraine
In the first campaigning month, OPORA observers noted the lack of clear distinction between campaigning activities and activities under official duties of deputies performed by candidates with the acting representative mandate. In fact, the candidates, current members of parliament, de facto used the process of performing their official deputy duties for campaigning purposes which goes against the democratic standards for equality of rights and opportunities of election participants.
The problem is especially keenly manifested in terms of prevention of execution of direct or indirect vote buying by candidates who are current MPs, under disguise of executing their official duties of deputies in the area of social protection of citizens, implementation of infrastructure or charity projects. Deputies of various levels, especially the people’s deputies of Ukraine, have access to public and local programs. Therefore, the concealed forms of financial incentives for voters are often used at the cost of state budget funds or the funds of local hromadas.
It is no less important to prevent the non-competitive coverage of election campaigns in the media for the standing people’s deputies who are running for candidacy. During the reporting period, OPORA took record in different constituencies of massive publication of formal information materials on activities of people’s deputies of Ukraine that de facto focused to cover their political and program advantages in the election process. Similar practices were applied also during the dissemination of printed materials on activities of people’s deputies of Ukraine that at the same time are the candidates for the early elections. Such materials (reports of deputies, invitations to meetings, informing on achievements and plans of deputies) could be produced not at the expense of election funds since they formally pertain to the current execution of a deputy’s official duties.
With account for the massive participation of standing people’s deputies of Ukraine in the early elections to the Supreme Council of Ukraine, OPORA regional representatives requested from the CEC to present an explanation on the problematic aspects of participation of the standing people’s deputies of Ukraine in the election process. The reply of a CEC member dated 29.06.2019, states that the Central Election Commission is not authorized to clarify the aspects of application of the Law of Ukraine “On the Status of People’s Deputies of Ukraine.” Thereat, the reply separately pointed to part four of Article 68 of the Law of Ukraine “On Election of People’s Deputies of Ukraine.” Under this section of the Law, official reports on candidates, public authorities, and local self-government bodies performing their official duties, while in parallel running for candidacy, shall not be part of pre-election campaigning. Pursuant to the law, such reports shall not include any campaigning-like comments, or videos, audio recordings, films, photo illustrations on the acts of the persons in their capacity of candidates for deputies.
According to OPORA, the current model regulating pre-election campaigning disables efficient prevention of abuse and non-competitive advantages in the electoral process for the standing people’s deputies of Ukraine. Development of mechanisms for efficient exercise of equal rights and opportunities of candidates shall be an element of the future reform of election law.
Abuse of Administrative Resources at the Elections
The Law of Ukraine “On Election of People’s Deputies of Ukraine” sets the guarantees for equal and unprejudiced treatment of public authorities and local self-government towards candidates for deputies, and parties as electoral subjects. In particular, the law prohibits to executive authorities and local self-government bodies, to law-enforcement bodies, and to courts to engage into campaigning. Public officials and civil servants of such authorities are forbidden to campaign during their working hours (except for cases when a public official is a candidate for people’s deputies of Ukraine). Principles of political neutrality of public administration are also stipulated in other Laws of Ukraine, such as in the law on public service. On the other hand, international standards of democratic elections emphasize the need for equal and unprejudiced treatment pf public officials to electoral subjects. Activities of public officials in favour of parties and candidates are classified as abuse of administrative resources during elections. Abuse of administrative resources is the situation when certain parties or candidates have non-competitive advantages to influence the election results by means of taking advantage of their official positions or relations with the government. Such abuse might include the use of human resources of public authorities, official events, budget funds, capacity of law-enforcement bodies in for electoral benefits.
According to observation findings at the early elections of the people’s deputies of Ukraine, OPORA can state the lack of signs of centralized abuse of the vertical of power in favour of one political party or a limited group of political parties. It might be explained by the fact, among other things, that election campaign unfolds in a situation of no shaped vertical of executive power where one party or a limited list of political forces would dominate. However, such evaluation of the current status of electoral process does not imply that the problem of abuse of administrative resources at elections in Ukraine have been overcome. On the level of specific constituencies or in local hromadas, cases are still recorded of violating the standards of political neutrality and equal treatment to candidates for people’s deputies of Ukraine and political parties.
In June, OPORA observers took record of a number of local incidents with signs of abuse of administrative resources for electoral benefits. In the first place, it is about engagement of public officials into the process of campaigning in favour of candidates for deputies. Some of the cases did not have any signs of direct violation of the law on election of people’s deputies of Ukraine. However, practices of public officials went against the standards of unprejudiced attitude of public administration. It is especially complicated to legally interpret the cases when public officials indirectly campaigned for the candidates who are the current people’s deputies. Public authorities and their officials are obliged to interact with the MPs, which does justify their engagement in the covert forms of campaigning in favour of the current deputies. According to the facts mentioned above, OPORA stated that the future parliament would rather be more specific on the regulating peculiarities of having people’s deputies of Ukraine execute their powers in electoral context.
According to observers, some public officials from local self-government gave been engaged into unfolding of pre-election campaigning in favour of potential or officially registered candidates for people’s deputies of Ukraine. For instance, a city mayor of Khmelnytskyi Oleksandr Symchyshyn took part in public introduction of the candidate nominated by the AU “Svoboda” in the one-mandate constituency No 187 (Khmelnytskyi region). In Kharkiv, city mayor Hennadiy Kernes and a peoples’ deputy of Ukraine, a self-nominated candidate Oleksandr Hranovskyi in one-mandate constituency No 169 (Kharkiv region) conducted a meeting with citizens of the district of Pivnichna Saltivka during the reporting period. In fact, before the current convocation, Oleksandr Hranovskyi was elected not in this constituency but on an electoral list of a political party “Block of Petro Poroshenko “Solidarnist”. These are only some illustrative cases, while the full list and description of the cases can be found at OPORA website.
One of the forms of public engagement of officials in the de facto election campaign, the same as at the regular presidential election, is still the posting in the media or in social media of direct or covert statements of public officials in support of the candidates for people’s deputies of Ukraine. The practices especially pertain to having public officials present achievements of the current people’s deputies of Ukraine who are also running for candidacy (or are the potential candidates prior to their official registration). For example, during a visit to Kolomyia (one-mandate constituency No 88), Minister of Justice of Ukraine Pavlo Petrenko expressed gratitude on his personal Facebook profile to a people’s deputy Andriy Ivanchuk for his support of the network of open offices, while he is running within this constituency. According to OPORA, public officials of executive authorities of different levels should avoid any direct or indirect support of candidates in order to show a true political neutrality.
During the reporting period, OPORA observers revealed several cases with signs of using official events of authorities to attract attention to candidates for people’s deputies of Ukraine or of engaging the staff of the budget institutions to the de facto campaigning in their favour. In particular, in the one-mandate constituency No 133 (Odesa region), a self-nominated candidate Dmytro Tantsiura conducted meetings with parents and teachers of secondary schools still prior to his official registration. In particular, during a meeting in the secondary school No 84, a headmistress of the school declared the intentions of Dmytro Tantsiura to run for the parliament, and also ran the voting among the attendees of the meeting to nominate him a candidate. Such actions of administration of an educational establishment include signs of incompliance with the requirements of the law on education on political neutrality of educational process. On the other hand, in the one-mandate constituency No 49 (Donetsk region), during the dance and song festival “Druzhkivka-Kostiantynvka Constellations of Talent”, a secretary of Druzhkivka town council Iryna Buchuk informed about the joint event to identify the agenda for the constituency engaging a town mayor, a candidate from the party “Opposition Platform – For Life” Valeriy Hnatenko together with the leader of electoral list of this party Yuriy Boyko. OPORA observers also recorded a number of cases when during activities in budget organizations, there was some indirect campaigning in favour of the standing people’s deputies of Ukraine who are running for the early parliamentary elections in Ukraine. It must be emphasized that these examples are not exceptional but they are provided for illustration of the revealed practices.
At the early parliamentary elections in Ukraine, it was only recorded cases of using public and local budget programs to attract attention to candidates. This trend rather relates to the current people’s deputies of Ukraine but the it is also typical of pre-election campaigning of other parliamentary candidates. Such activities of registered or potential candidates contains signs of abusing budget administrative resources, and places election participants in unequal conditions, as some of them do not have access to such resources.
For example, on June, 9, the event when representatives of Novodnistrovska, Zastavnivska, and Stavchanska hromada were receiving into their ownership agricultural lands, was attended by Maksym Burbak, a self-nominated candidate in one-mandated constituency No 204 (Chernivtsi region) not yet registered at the moment. On the other hand, in Mykolayiv, a self-nominated candidate in constituency No 127 Ihor Dyatlov used the program of energy upgrade of multistoried buildings and educational establishments “Warm House” to draw attention of voters to his political activities.
Cases with Signs of Vote Buying. Electoral "Charity"
In June, OPORA observers registered a rather large scale of activities of potential and/or registered candidates with signs of indirect vote buying. Participants of election campaign or the related charities offered to voters the free of charge of preferential goods and services, as well as implemented infrastructural or social projects in their constituencies.
Instead, the Law of Ukraine “On Election of People’s Deputies of Ukraine” prohibits to run pre-election campaigning accompanied by offering to voters, institutions, and organizations any funds or free or preferential goods (except for goods that contain visual representations of a name, symbols, flag of a party, provided the cost of such goods does not exceed three per cent of the minimum wage), services, works, securities, loans, lottery tickets, and other valuable assets. This kind of pre-election campaigning or granting to voters, institutions, establishments, and organizations the funds, or free or preferential goods, services, works, securities, loans, lottery tickets, other valuable assets accompanied by calls or offers to vote in favour or not to vote for a certain party or a candidate, or such that mention a name of a party or a candidate, shall be an indirect vote buying.
According to OPORA, the focus of activities of a number of candidates on financial incentives to voters could jeopardize the conditions for free expression of will of citizens. Law-enforcement bodies of Ukraine have legal tools to counteract both direct and indirect vote buying, and the organization observers actively interact with them to prevent the spread of negative cases in electoral process.
Some examples of electoral “charity” (provided to illustrate key practices, and the list is not exhaustive):
- In May and June, citizens of Luhansk region massively received a charitable aid in the form of sacks of sugar on behalf of a people’s deputy of Ukraine, a self-nominated candidate in one-mandate constituency No 114 Serhiy Shakhov, his team, and a charitable foundation. The free of charge aid was handed out in the form of 5-kg packs of sugar on behalf of the charitable organization of Luhansk Regional Charitable Foundation “Luhansk Area is Our Land,” and on behalf of the people’s deputy of Ukraine Serhiy Shakhov.
- In one-mandate constituency No 71 (Transcarpathian region), in the outpatient facility of the village of Ruske Pole (Tiachiv district), in one of the medical offices of the center, OPORA observers registered printed campaigning materials supporting a self-nominated candidate, a people’s deputy of Ukraine Valeriy Lunchenko. In their commentary to OPORA, the staff of the village outpatient facility informed that citizens could receive free of charge glasses on the basis of vision examination by a guest ophthalmologist. The organization observers requested a commentary from Valeriy Lunchenko but no answer has been received at the moment of publishing the report.
- In one-mandate constituency No 94 (Kyiv region), a charity “Kyivska Rus” of the candidate for people’s deputies Larysa Ilyenko (AU “Batkivshchyna”) conducted a free of charge medical examination of citizens. Persons who used the services were given packages with the logo of the charity and a picture of the candidate.
- A candidate nominated by the party “Opposition Platform – For Life” in one-mandate constituency No 185 (Kherson region) Pavlo Filipchuk donated to hospitals of the village of Ivanivka and a township of Nyzhni Sirohozy certificates to purchase air-conditioners at the cost allocated by the “Charitable Foundation of Pavlo Filipchuk.”
- In one-mandate constituency No 144 (Poltava region), it was registered a donation of stuffed toys to children of participants of the campaigning concert in support of a self-nominated candidate Oleksandr Mamay.
- According to local media reports, a candidate nominated by the “Opposition Block” party in one-mandate constituency No 129 Volodymyr Tymoshyn presented to Halytsynove outpatient clinic 5 cardiographs on behalf of the lawyers association “Tymoshyn and Partenrs.”
- In some regions of Ukraine, it was handed out a newspaper of the “Ukrainian Strategy of Groysman.” The readers were offered to fill in a questionnaire to take part in a lottery of wall clocks, modern domestic appliances, tours to Kyiv, etc.
During the reporting period, candidates for people’s deputies of Ukraine initiated in constituencies different infrastructure projects. In particular, a self-nominated candidate in one-mandate constituency No 201 (Chernivtsi region), a people’s deputy of Ukraine Oksana Prodan initiated repairs of the road surface on one of the street in the region capital. According to a commentary of the Chernivtsi city mayor Oleksiy Kaspruk, the road repairs was done not at the cost of local budget but on the grounds of the letter from the peoples’ deputy on the self-organized effort to recover the road surface. For instance, another case of allocating one’s own money for the repairs of village roads was allocated by a self-nominated candidate in one-mandate constituency No 70 (Transcarpathia region) Vasyl Shchur.
OPORA requested from the law-enforcement bodies to check and give legal evaluation for this and other facts with signs of financial incentives to voters. Observers of the organization call for candidates for people’s deputies of Ukraine to avoid any forms of direct or indirect vote buying but focus on the discussion of their election programs and their own political advantages.
Obstruction to Activities of Electoral Subjects
In June, OPORA observers found out about several cases of obstruction to activities of candidates and political parties that were manifested in damaging facilities of local offices of political parties and the outdoor advertising posted by electoral subjects. In particular, representatives of a local organization of a political party “Opposition Platform – For Life” reported on multiple attacks of unidentified persons on the public reception office of the political party in Kharkiv. OPORA observers also registered intentional damage to the outside political advertising of political parties and candidates. According to provisional data, most often such actions addressed the outside advertisements of the parties “European Solidarity” and “Opposition Platform – For Life.” OPORA calls for the state to provide for free conditions for running pre-election campaign by all electoral subjects, without exceptions.
Cases on the legal status of observers
On the case of OPORA’s lawsuit No 160/5727/19 to deem illegal and invalidate resolutions of the DEC on postponing registration of official observers , Dnipropetrovsk district administrative court satisfied the lawsuit in part, with regard to the fact that the acting law does not provide for the DEC to adopt decisions on “postponing” registration of official observers.
Cases on specifying voters’ lists
Moreover, the courts consider cases on specifying voters’ lists during electoral process at the elections of the people’s deputies of Ukraine. So far, such lawsuits are filed by voters less actively than in the period prior to the election day. In total, from June, 1 to 30, 2019, the court register published 6 decisions on 4 cases where consideration took place on the merits of the claim.
Thus, in the case No 215/3406/19(2-а/215/241/19), the court rejected to satisfy the lawsuit due to the fact that the claimant who did not have any registration of residence failed to present any due evidence on his residence address (such as a document confirming the ownership right for the housing, including also an agreement of purchase and sale; a gift agreement, a certificate on inheritance tights; tenancy agreement, rent contract; reference certificate from a housing management company or the condominium association; written consent of the housing owner, etc.). Therefore, the court stated the lack of legal grounds to satisfy the lawsuit and enter the claimant to the voters’ list of the respective DEC. Similar grounds for rejection to satisfy a lawsuit from a voter were found in the case No 215/3576/19. At the same time, in cases No 127/17041/19, No 127/17042/19, the court satisfied lawsuits of voters who did not have registration addresses, on the grounds of presenting to the court reference certificates on residing at a certain address without registration .
Civil Network OPORA calls for the Supreme Court of Ukraine to generalize the court practices, and change the approach stated in the Resolution of the Plenary of the Supreme Administrative Court of Ukraine dated September, 12, 2014 No 9 “On generalizing practices for administrative courts to resolve disputes on change of voting address and voting places, on specifying voters lists that were used at the regular presidential elections in Ukraine and elections of local council deputies and heads of villages, townships, and cities” to the availability of the place of registration used as a basis to determine the voting address as one of the preconditions to implement one’s voting rights. Civil Network OPORA believes that dependence of the possibility to exercise one’s voting right on the place of registration violates a principle of free voting rights, therefore, legal reasoning of the SACU shall be revised by the Supreme Court.
Cases appealing against decisions, actions, inaction of the CEC
On the issues of compiling the membership of district election commissions, a political party “Internet Party of Ukraine” filed a lawsuit against the CEC to declare illegal inaction on failure to consider a petition to replace a DEC member and deem illegal the CEC decision on terminating the office of DEC members from this party due to refusal to take the oath (case No 855/156/19). In that case, the court adopted a decision to reject the satisfaction of the claim. The grounds for rejection was proving in a court the fact that the documents confirming absence at the meeting and failure to take the oath by the respective members arrived to the CEC earlier than an application from the party on replacement. The court decision highlights that neither the Law, nor the Procedures for Distributing Managerial Positions in District Election Commissions at elections of the people’s deputies of Ukraine between candidate nominating subjects cfor the commissions adopted by the resolution of the Commission dated April, 18, 2013, No 79 (with changes) does not contain any mechanism (algorithm) to explain how the principle of proportionate distribution of managerial positions could be followed (kept) in case of introducing changes to the managerial staff of district election commissions during the entire electoral process.
On the case No 855/145/19, an appeal was filed against the inaction of the CEC on failure to establish one-mandate constituencies for the early elections on July, 21, 2019, on the territory of the AR Crimea and the city of Sevastopol. Sixth Administrative Court of Appeals referred to the Law of Ukraine “On Providing for Rights and Freedoms of Citizens and a Legal Status on the Temporary Occupied Territories of Ukraine” that the dry land of the AR Crimea and the city of Sevastopol is a temporary occupied territory covered by a special legal status to run elections and referenda. Therefore, voting at the early parliamentary elections in Ukraine on July, 21, 2019, does not have to be organized and conducted on the entire territory of AR Crimea and the city of Sevastopol. Citizens of Ukraine residing on the temporary occupied territory shall be entitled to exercise their voting rights at this election by changing their coting places without changing voting address.
Cases on appealing against rejections to register candidates
Since a defendant on this category of cases is the Central Election Commission, cases of the first instances were considered by the Sixth Administrative Court of Appeals, with the Supreme Court as the appeal body (Cassation Administrative Court).
In total, according to the data published as of June, 30, on merits, 16 cases within this category have been considered:
1. On the case No 855/147/19, it appealed against rejection to register a candidate for people’s deputies of Ukraine Pichuhin D.S. self-nominated in one-mandate constituency No 211. With a decision of the Sixth Administrative Court of Appeals dated 07.06.2019 ((http://www.reyestr.court.gov.ua/Review/82261000?fbclid=IwAR3Vp_a3Vhk4dYWjtCPUgi6idMDtIi6iwn6xtOJYGwrvc7fdoRXdTIzqdRs#), a potential candidate was rejected in satisfying the claim, by approval of the Cassation Administrative Court of the Supreme Court dated 14.06.2019 (http://www.reyestr.court.gov.ua/Review/82406465), the complaint was left without consideration due to overdue deadlines. A dispute arose due to failure to comply with requirements by a potential candidate to reside on the territory of Ukraine during the last 5 years.
2. On the case No 855/150/19, a potential candidate for people’s deputies Koval V.D. was rejected of registration due to lack of obligation in the candidate’s application to withdraw from the representational office or terminate activities incompatible with the deputy mandate. By the Resolution of the Cassation Administrative Court of the Supreme Court dated 18.06.2019 (http://www.reyestr.court.gov.ua/Review/82472876), it was invalidated the decision of the Sixth Administrative Court of Appeals, and the CEC was obliged to repeatedly consider application for registration. On this case, the Supreme Court formed a legal reasoning that incompliance with certain requirements on filing the documents shall be the grounds for introducing correction thereto, and shall not be the grounds for adopting decision on the lack of such document, and consequently, rejection of registration. At the same time, the court emphasized the legal reasoning on no authority of the court to oblige the CEC to register a candidate. Therefore, the court can only oblige the CEC to repeatedly consider the issue on candidate’s registration. CEC executed the decision by adopting a Resolution No 1242 dated 24.06.2019 On Execution of Resolutions of the Supreme Court dated June, 18, 2019, on the case No 855/150/19, and registered Koval V.D.
3. Case No 855/152/19 on rejection to register a potential candidate Onyshchenko O.R. due to incompliance with the residence requirement. Decision of the Sixth Administrative Court of Appeals dated 22.06.2019 (http://www.reyestr.court.gov.ua/Review/82540714) obliged the CEC to register the candidate. However, Resolution of the Cassation Administrative Court of the Supreme Court dated 25.06.2019 (http://www.reyestr.court.gov.ua/Review/82654397) invalidated the first instance decision. The court established that in order to confirm the residence requirements, undue evidence was used (thus, letters of the “All-Ukrainian Federation of Horseback Riding of Ukraine’ NGO shall not qualify as a document confirming the status of a member of official delegation of the national team to participate in the competition). Moreover, the Supreme Court emphasized that the first instance court exceeded its authority by obliging the CEC to register the candidate.
4. On the case No 855/153/19, it was appealed against the rejection to register a candidate for people’s deputies of Ukraine Fedurets V.V. self-nominated in one-mandate constituency No 72, by the decision of the Sixth Administrative Court of Appeals dated 21.06.2019 (http://www.reyestr.court.gov.ua/Review/82541439) and by the Resolution of the Cassation Administrative Court of the Supreme Court dated 25.06.2019 (http://www.reyestr.court.gov.ua/Review/82618579), the decision of the CEC remained in force since the claimant claimed that to confirm the residence requirements, undue evidence was used on compliance with the residence requirements over the last 5 years on the territory of Ukraine. Thus, letters of Tiachiv district state administration /Tiachiv district and Transcarpathian regional councils do not contain any evidence and specific dates on the trip abroad, thus not refuting the circumstances stated in the CEC resolution.
5. On the case No 855/154/19 on rejection to register a candidate for people’s deputies of Ukraine Plastun Ye.Yu. self-nominated on one-mandate constituency No 46, the decision of the Sixth Administrative Court of Appeals dated 22.06.2019 (http://www.reyestr.court.gov.ua/Review/82540720) was issued in favour of the candidate, but invalidated on June, 26, 2019, by the Resolution of the Cassation Administrative Court of the Supreme Court dated (http://www.reyestr.court.gov.ua/Review/82654523). Supreme Court defined its legal reasoning, under which in case a document misses a character or a word, uses an inapt or inexact term, phrase, or not identical sentence, and it does not present an obstacle to understand the content of the presented data, the presented information intends to enforce the provision, such inaccuracy can be considered a mistake to be corrected or clarified. In case a document is unduly arranged, i.e. it has not all the necessary and important data that shall be indicated, or it lacks a signature, a stamp, or other required details – the document shall be considered as absent. Placement of funds to the special account by a person other than a candidate shall not be considered a mistake or inaccuracy to be corrected. A similar reasoning was used by the courts on the case of rejecting registration to Volodymyr Parasiuk (as of today, the decision on the case has not been published).
6. On the case No 855/155/19 on rejection to register a candidate for people’s deputies of Ukraine Pshybelskyi R.B. self-nominated on one-mandate constituency No 191, a dispute arose due to failure to indicate the required data in the autobiography on citizenship stating the period of residence on the territory of Ukraine, public work (including also on elected positions), and a contact telephone number. The Decision of the Sixth Administrative Court of Appeals dated 22.06.2019 (http://www.reyestr.court.gov.ua/Review/82541800) kept in force the CEC resolution, since, in the opinion of the court, in case of some lacking data in the autobiography, it shall be considered as absent. By the Resolution of the Cassation Administrative Court of the Supreme Court dated 26.06.2019 (http://www.reyestr.court.gov.ua/Review/82654514) the appealing proceedings were closed since the appeal petition was signed by a lawyer (a person with no administrative procedural capacity, or signed by a person not entitled to sign it).
7. On the case No 855/157/19 on rejection to register a self-nominated candidate for people’s deputies of Ukraine Minko S.A., a dispute arose due to failure to indicate the required data in the autobiography, such as the data on public work (including also on elected positions). The Sixth Administrative Court of Appeals (http://www.reyestr.court.gov.ua/Review/82611471) rejected to satisfy the lawsuit concluding that in case of failure to recognize certain data in the autobiography it shall be considered as absent. By the resolution of the Supreme Court dated June, 28, 2019, the first instance court decision was invalidated, deemed illegal and it also invalidated a resolution of the Central Election Commission dated June, 22, 2019, No 1164 in terms of rejection of registration to a candidate for people’s deputies of Ukraine Minko S.A., and also obliged the Commission to register Minko S.A. (which goes against the practices of the Supreme Court on a case No 855/150/19 ). By the resolution dated June, 29, 2019, No 1380, the CEC registered the candidate.
8. On the case No 855/163/19 on rejection to register a candidate for people’s deputies Barvinenko V.M., a dispute arose due to placement of monetary deposit by another person. By the Decision of the Sixth Administrative Court of Appeals dated 25.06.2019 (http://www.reyestr.court.gov.ua/Review/82612324), the court rejected to satisfy the lawsuit. Resolution of the Supreme Court of June, 28, invalidated the CEC resolution. CEC resolution dated June, 30, registered the candidate.
9. On the case No o9901/347/19 on rejection to register a candidate for people’s deputies of Ukraine Martiyan S.M. self-nominated in constituency No 98, a dispute arose due to failure to indicate the required data in the autobiography. The Sixth Administrative Court of Appeals (http://www.reyestr.court.gov.ua/Review/82612436) rejected to satisfy the lawsuit. Resolution of the Supreme Court of June, 28, invalidated the CEC resolution. CEC resolution dated June, 30, registered the candidate.
10. On the case No 855/158/19 on rejection to register a candidate for people’s deputies of Ukraine Yatsenko M.V. self-nominated in constituency No 25, Decision of the Sixth Administrative Court of Appeals dated June, 26, 2019, on a case No 855/158/19 rejected to satisfy the lawsuit of Yatsenko M.V. Resolution of the Supreme Court dated June, 28, 2019, on a case No 855/158/19, invalidated the decision of the Sixth Administrative Court of Appeals, and obliged the Central Election Commission to repeatedly consider documents on the registration of Yatsenko M.V. as a candidate for people’s deputies of Ukraine at the early parliamentary elections in Ukraine on July, 21, 2019, and to take a decision to register him as a candidate for people’s deputies of Ukraine (obligation for registration goes against the practice of the Supreme Court on a case No 855/150/19). With the resolution dated June, 29, 2019, No 1381, the CEC registered the candidate.
11. On the case No 855/168/19 on rejection to register a candidate for people’s deputies of Ukraine from a political party “Movement of New Forces of Mikhail Saakashvili” on a national multi-mandate constituency and one-mandate constituencies, Resolution of the Supreme Court dated June, 29, 2019, invalidated the resolution rejecting to register candidates for people’s deputies of Ukraine from a political party “Movement of New Forces of Mikhail Saakashvili.” CEC, taking into account the minutes of the extraordinary Convention of the Political party “Movement of New Forces of Mikhail Saakashvili” of June, 10, 2019, as corrected in accordance with the conclusions of the Supreme Court, registered the candidates on June, 29, 2019, with the resolution No 1382.
12. On the case No 855/161/19 on rejection to register a candidate for people’s deputies of Ukraine Nasedkin P.A. self-nominated in a constituency No 78, a dispute arose due to failure to indicate the required data in the autobiography, such as the lack of data on work experience, residence address and a contact telephone number. The Decision of the Sixth Administrative Court of Appeals dated June, 25, 2019, rejected to register a candidate but the Resolution of the Supreme Court dated June, 29, 2019, invalidated the CEC decision and obliged to register the candidate. CEC resolution dated June, 30, registered the candidate.
13. On the case No 855/176/19 on rejection to register a candidate for people’s deputies of Ukraine Polin Yu.M. self-nominated in a constituency No 79, a dispute arose due to lack of data in the autobiography on public work (including also on elected positions). Resolution of the Supreme Court dated June, 29, invalidated the CEC resolution. Resolution of the CEC dated June, 30, registered the candidate.
14. On the case No 855/185/19 on rejection to register a candidate for people’s deputies of Ukraine Ivoylova A.A. self-nominated in a constituency No 153, a dispute arose due to lack of obligation in the self-nominating application to withdraw from activities incompatible with the mandate of a people’s deputy of Ukraine under the acting law and the Constitution of Ukraine, in case of being elected as a people’s deputy Resolution of the Supreme Court dated June, 29, invalidated the CEC resolution. CEC resolution of June, 30, registered the candidate.
15. On the case No 855/173/19 on rejection to register a candidate for people’s deputies of Ukraine Kozakov Ye.Yu., self-nominated in a constituency No 153, a dispute arose due to lack of data in the autobiography about the period of residence on the territory of Ukraine, data on residence address, and a contact telephone number. Resolution of the Supreme Court invalidates the CEC resolution on June, 29. CEC resolution dated June, 30, registered the candidate.
16. On the case No 855/159/19 on rejection to register a candidate for people’s deputies of Ukraine Molodtsova O.V. self-nominated in a constituency No134, a dispute arose due to the fact that payment for the election deposit was made from a commercial account of an Individual Entrepreneur Molodtsova Olena Viktorivna. Resolution of the Supreme Court of June, 28, invalidated the CEC resolution. Resolution of the CEC dated June, 30, registered the candidate.
In addition, on one of case No 855/151/19 on appealing against the rejection to register a candidate Vyviurka S.V., the lawsuit was left without consideration due to overdue deadlines for the appeal (http://www.reyestr.court.gov.ua/Review/82446405); on the case of № 855/180/19 the lawsuit was left without action (http://www.reyestr.court.gov.ua/Review/82611499#); on the case No 855/165/19 (http://www.reyestr.court.gov.ua/Review/82612314) on appeal from the Kherson regional branch of the political party “Opposition Platform – For Life,” on nominating as number one on a multi-mandatory constituency Yuriy Boyko, the lawsuit was returned to the claimant due to the fact that the lawsuit was submitted by a person with no administrative procedural capacity, not signed, or signed by a person not entitled to do so, or a person with no official position indicated.
Upon the whole, it must be noted that the CEC and the Sixth Administrative Court of Appeals followed more formal requirements to the documentation submitted by candidates for registration. In most cases, such decisions were invalidated by the Supreme Court of Ukraine. Reasoning of the Supreme Court on cases rejecting registration complies with the practices of the European Human Rights Court (“Krasnov and Skuratov vs Russian Federation” dated July, 19, 2007), where the European Court defined the concept of “excessive formalism” when a document lacks some name or details authorities do not consider it a mistake (inaccuracy) but absence of the document as such. Unlike in 2014, when different benches of the Higher Administrative Court expressed crucially different positions as to formal grounds for rejections to register candidates, the Cassation administrative court showed a consolidated position. At the same time, the Supreme Court took a committed position on inacceptable payment of election deposit by a person other than the candidate, and the need for steadfast compliance with the requirements to stay in Ukraine over the last five years.
Positive aspects of Supreme Court practices include:
- an established legal reasoning to distinguish between “mistakes” and “lack of documents required for registration” (case No 855/154/19);
- in most proceedings, the reasoning was confirmed that the administrative court cannot substitute another public authority and assume powers to resolve issues assigned by the law to the competence of this authority (case No 855/150/19).
The negative aspects shall include non-uniform practices of interpreting the failure to include certain data to the autobiography by the Sixth Court of Appeals and the Supreme Court of Ukraine, as well as the cases where Supreme Court in similar cases either obliged the CEC to register candidates (No 855/158/19, 855/157/19) or to repeatedly consider documents for registration (No 855/150/19).
Along with the practices of specialized courts, one should pay attention to the decision of Pechersk district court dated June, 21, 2019, on the case No 757/31612/19-ц, that recognized the fact of uninterrupted residence on legal grounds of M. Saakashvili on the territory of Ukraine from February, 23, 2014, until June, 06, 2019 (http://www.reyestr.court.gov.ua/Review/82555004?fbclid=IwAR2Wi2ahGxMuRVOjsqJQAMD77gIVczYRh90vXfAJ-bz6a_G3tX9wFHjpVno).
Cases considered by courts on investigation of criminal proceedings
Cases No 296/6136/19 (http://www.reyestr.court.gov.ua/Review/82636513), No 296/6137/19 (http://www.reyestr.court.gov.ua/Review/82636672) are related to assignment of temporary access to CEC documents on the registration of twin candidates in one-mandate constituency No 64, under criminal proceedings No 12019060000000198 (part 4 Art. 160 of the CC of Ukraine – vote buying). The proceedings were initiated on the basis of the report from candidate Pashynskyi S.V. on a group of persons acting upon prior collusion on the territory of Korosten district, and was searching for voters who were offered financial reward for submitting of documents to the CEC to be registered as candidates for people’s deputies as candidates with the same last names, in order to distort objective voting results.
Cases on bringing to administrative responsibility
In the first month of election campaign, one case was considered on bringing to administrative responsibility. Thus, on the case No 659/525/19, district court of Nyzhni Sirohozy of Kherson region closed the proceedings due to the fact that the materials of the case failed to prove the relation of the person drawn in the protocol to dissemination of campaigning materials, such as a billboard without the source data. Explanations attached to the protocol by a person brought to responsibility negated his connection to posting the print-outs, and informed that he did not have any information on who was in charge of disseminating the materials.
Cases where decisions have not yet been published n the Unified State Register of Court Decisions but they have high social relevance
District administrative court initiated a consideration of the case No 640/9401/19 on inaction of the CEC as to failure to adopt explanations and recommendations on allocating accessible facilities for polling stations and creating accessible conditions for voting of persons with disabilities. OPORA will keep track of the consideration of the case in terms of the fact that access to polling stations is part of the monitoring focus.
On the case No 200/8038/19-а, proceedings were begun on the lawsuit from a voter against a candidate on the content of an advertising structure of the candidate with the text “Opposition Platform – For Life.” We shall resume relations with Russia – and bring back peace to Donbas.” According to the claimant, the statement includes calls to liquidate independence.
- to avoid the covert campaigning exercised by participation in implementation of national or local official events;
People’s deputies of Ukraine running for candidacy at the early parliamentary elections in Ukraine, shall not allow changes in the Constitutional status by violent methods, infringe on sovereignty and territorial integrity of the state, undermine its security, illegal seizure of state power, propaganda of war.
Civil Network OPORA will continue the monitoring of court decisions related to electoral process for the early elections of the people’s deputies of Ukraine on July, 21, 2019.
to the Verkhovna Rada of Ukraine
- to provide for consideration and adoption of draft laws No 8270 (on providing the inescapable punishment for electoral fraud) and No 6240 (on providing for voting rights to internally displaced persons and internal labour migrants).
to the National Police of Ukraine
- to pay special attention to prevention and investigation of attempts of forceful obstruction to activities of electoral subjects.
- to enhance response rate to cases of indirect vote buying, which number keeps growing, according to OPORA observation findings.
to the Central Election Commission
- to enhance control over compliance of electoral subjects with the legal provisions of the funding of election campaigning, and specifically, over turnover of funds of the candidates’ election funds.
- to provide for timely and exhaustive publication of information on the facts of opening accounts of election funds by all electoral subjects.
to electoral subjects
- to fully avoid organization of activities accompanied by providing goods and services to voters by people’s deputies of Ukraine.
- to clearly distinguish the process of performing one’s official duties and running campaigning activities in one’s favour.