OSCE International Election Observation Mission: Preliminary Conclusions
In the 21 July early parliamentary elections in Ukraine fundamental rights and freedoms were overall respected and the campaign was competitive, despite numerous malpractices, particularly in the majoritarian races. Generally, the electoral administration was competent and effective despite short time available to prepare the elections, which were seen as an opportunity to consolidate reforms and changes in politics that Ukrainian voters are hoping for. In sharp contrast, the campaign was marked by wide-spread vote-buying, misuse of incumbency, and the practice of exploiting all possible legislative loopholes, skewing equality of opportunity for contestants. Intertwined business and political interests dictate media coverage of elections and allow for the misuse of political finance, including at the local level. Election day was overall peaceful, with observers of the International Election Observation Mission (IEOM) assessing opening and voting positively in the overwhelming majority of polling stations observed, but procedural shortcomings were noted in the counting and tabulation.
The elections took place in the context of ongoing armed conflict and other hostilities in the east of the country and the illegal annexation of the Crimean peninsula by the Russian Federation. As a consequence, the elections could not be organized in Crimea and certain parts of Donetsk and Luhansk oblasts that are controlled by illegal armed groups.
The Ukrainian Constitution guarantees rights and freedoms that underpin democratic elections. The legal framework remains largely unchanged since the last parliamentary elections, with the exception of the 2015 campaign finance reform. Although overly detailed and convoluted, it provides a sound basis for the conduct of democratic elections, if implemented in good faith. Some restrictions on the freedom of association and on candidacy rights remain despite prior ODIHR recommendations. A number of other ODIHR recommendations remain unaddressed, including on voter registration, composition of election commissions and simplification of dispute resolution process.
Parliament is elected for a five-year term. Half of the members are elected on the basis of a proportional system with closed party lists in one single nationwide constituency. Parties must receive at least five per cent of all votes cast in order to participate in the distribution of mandates. The other half of the members are elected in single mandate districts (SMDs) in a single round. This component was systematically criticized by many IEOM interlocutors as subject to corruption and fraud by powerful local interests. If the electoral code adopted on 11 July enters into force, the electoral system will be changed to a fully proportional one with multi-member districts and open party lists.
Despite a narrow timeframe, the Central Election Commission (CEC) administered the early elections in a technically efficient manner, approved the main procedural rules within the legal deadlines and overcame challenges created by the procurement rules and deadlines. While its sessions were open, the long standing practice of holding preparatory meetings prior to sessions and the resulting lack of substantive discussions in the sessions themselves decreased the transparency of the CEC’s work.
District Election Commissions (DECs) and Precinct Election Commissions (PECs) were formed on time and performed in an overall professional manner. A significant number of members, including in executive positions, were replaced by parties who had nominated them until as late as election day. Large scale replacements undermined the stability and efficiency of the work of lower level commissions and diminished the value of the training they received. Several “technical” contestants were registered in order to provide their positions in election commissions to other contenders. This practice does not ensure a balanced composition and proportional representation of contestants envisaged by the law and international good practice.
The State Voter Register includes some 35.6 million voters. Despite the exclusion of approximately one million voters without a registered address, the vast majority of interlocutors expressed confidence in the accuracy of the voter register. In a welcome development, the previously simplified procedure for internally displaced persons (IDPs) to change their voting address, has now been extended to all voters. Outreach and voter education activities to explain this change were limited; only some 47,000 IDPs changed their address. The blanket denial of voting rights of persons recognized by a court to lack legal capacity on the grounds of mental disability is at odds with international obligations.
Overall, candidate registration resulted in a diverse field of candidates with the registration of 22 political parties for the nationwide race, and over 3,000 candidates for the SMDs. However, disproportionate limitations on the right to stand based on a non-expunged criminal record for an intentional crime, regardless of its severity, and residency requirements, and restrictive interpretation of candidate registration rules negatively impacted the inclusiveness of the process.
Thirteen out of 22 party lists complied with the 30 per cent requirement for women candidates, and there is no enforcement mechanism. Of the total number of registered candidates, 23 per cent are female. While women representation in the nationwide constituency lists is at 31per cent, only 16 per cent of SMD candidates were women. During the campaign, women candidates were less visible in the media than men. Women are underrepresented in public office, holding only 12 per cent of seats in the outgoing parliament. Women were well-represented at all levels of election administration. The majority of the CEC members are women, including the Chair and Secretary.
Overall, contestants were able to freely convey their messages to the electorate and fundamental freedoms of expression and assembly were respected. The campaign was competitive with a range of candidates representing a wide spectrum of political options. The misappropriation of one party’s brand name by several self-nominated candidates characterized these elections, and more than 46 investigations were opened into “clone” candidates. Vote-buying was widespread in these elections as evidenced by more than 125 criminal investigations. Misuse of incumbency did not ensure equality of opportunity for contestants.
Campaign finance amendments adopted in 2015 partly addressed some prior ODIHR and Council of Europe Venice Commission recommendations to increase transparency and accountability. However, the implementation of the regulatory framework does not ensure transparency of campaign finances and continues to allow for influence of patronage networks and big donors on politics, and undue influence of campaign spending on the will of voters. Existing sanctions are neither proportionate nor dissuasive. As required by law all parties opened dedicated bank accounts while some 25 per cent of majoritarian candidates failed to do so.
The Constitution guarantees freedom of expression and prohibits censorship, and the legal framework provides for general media freedom. The overall media market is diverse, but largely divided along political lines, and ownership is highly concentrated. The editorial policy and political agenda promoted by private media outlets exclusively serve the interests of their owners, which undermines media autonomy and public trust. Journalists’ safety remains a major concern. The public broadcaster UA:PBC is severely underfunded, which affects its ability to fully perform its public-service role required by the law. The media regulatory body chose not to exercise its powers to effectively respond to media violations.
ODIHR media monitoring results showed that provisions for balanced and unbiased coverage of the campaign and candidates were frequently violated by the monitored private TV channels. Broadcasters widely covered the contestants through the format of political debates. Paid advertisement was used extensively by the main parties. A high number of unmarked promotional materials were noted in prime-time news of most monitored private TV channels, a practice that violates the law, misleads voters and does not provide genuine information. In line with the law, UA:PBC provided all 22 parties with free airtime.
The Constitution provides for full political, civil and social rights for national minorities. However, the legal framework pertaining to national minorities is fragmented and outdated. Several interlocutors expressed concern that the SMD delimitation is not favourable to national minority representation. Candidates were able to use minority languages in campaign materials and while campaigning.
The right to seek effective legal remedy is guaranteed by law and provides for timely consideration. However, jurisdictions of election commissions and administrative courts overlap. An inconsistent and overly formalistic approach to addressing complaints did not ensure effective remedy. Prior to election day, the CEC received some 150 complaints, of which more than half were deemed inadmissible on technical grounds, contrary to good practice. Only one third of the complaints were reviewed in open sessions and the rest was behind closed doors, which undermined transparency. The police registered some 8,500 possible election-related offences and initiated over 500 criminal investigations.
The law provides for election observation by international and citizen observers. Following the reinstatement of voting rights of the Russian delegation to the Parliamentary Assembly of the Council of Europe (PACE), the Ukrainian authorities withdrew their invitation to the Assembly to observe the elections. The CEC registered 163 Ukrainian non-governmental organizations (NGOs) to observe the elections, most of them only recently created.
Election day was overall peaceful, with a voter turnout of 49.84 per cent announced by the CEC. IEOM observers assessed opening and voting positively in the overwhelming majority of polling stations observed. Voting was transparent and well organized with a high level of adherence to established procedures. There were cases of voters not allowed to vote because they were not on the voter list. Vote count was transparent; however, basic reconciliation procedures were often not followed and in over one third of observations steps prescribed for completing the protocol were not adhered to. The early stages of tabulation were assessed negatively in one fifth of DECs, mainly due to tensions in or around the DECs and inadequate conditions at DECs that caused overcrowding and limited transparency, as well as restrictions on observers’ access in eight DECs. Copies of protocols were not systematically provided to those entitled to them. Throughout election day, candidate and party observers were present in the vast majority of polling stations while citizen observers were noted in approximately one third.
Campaign silence must commence at midnight on Friday before election day. Nevertheless, campaign materials were not removed in most oblasts across the country and new unmarked posters and billboards appeared. Extensive use of political advertisements on the Facebook pages of the main parties also continued. Throughout election day, Priamyi TV in partnership with Channel 5 aired a live broadcast entitled “Stop Revenge”—one of the main slogans of European Solidarity. Party representatives used the telecast to inform voters of policy successes of the party and its leader Petro Poroshenko. Television channel 112 Ukraine aired at least three prayer services in the name of ‘For Life’, a clear reference to the electoral contestant Opposition Platform—For Life. Mr. Rabinovich—second on the party list—appealed to voters to exercise their right to vote otherwise ‘For Life’ would lose.
According to the CEC, there were very few instances of candidates’ names on SMD ballots that were erroneously marked with the stamp “withdrawn” and reprinted in time for election day. The practice of replacements of DEC and PEC members continued throughout election day. Opening procedures were assessed positively in 191 of the 200 polling stations observed. With few exceptions, established procedures were followed. Voting was assessed positively in 99 percent of polling stations observed. IEOM observers characterized the process as transparent and well organized with a high level of adherence to established procedures.
Issues related to the secrecy of the vote were noted; voters did not always mark their ballots in secrecy in 5 per cent of observations and mostly did not fold their ballot prior to casting it in 19 per cent of observations. Overcrowding was reported in 3 per cent of observations, possibly also contributing to challenges to the secrecy of the vote. In 10 per cent of observations, one or more voters were not allowed to vote mostly due to not presenting proper identification documents, and also for not being included in the voter list. Some 62 per cent of polling stations were not accessible to persons with physical disabilities, and in 24 per cent of observations the layout was not suitable.
Persons not authorized to be inside the polling station were noted in 5 per cent of observations, approximately half of whom were police or security officials. Candidate and party observers were present in 97 per cent of observations and citizen observers in 31 per cent.
The vote count was assessed positively in 242 of the 273 polling stations where it was observed. Counting was transparent, and candidate and party observers were present at almost all counts observed, while citizen observers were present at one third. Unauthorized persons inside the polling station were noted in 15 cases and were mostly police or security officials. Undue interference in the count was noted in 23 cases, usually by candidate or party observers.
IEOM observers report that basic reconciliation procedures were often not followed, including the PEC failing to announce the number of voters on the voter list (37cases), of voters’ signatures on the main and homebound voter lists (58 and 56 cases, respectively), or of used ballot counterfoils (59 cases). In 73 counts observed, the figures established during reconciliation were not entered into the protocols before the ballot boxes were opened. During 44 counts, the PEC did not determine the validity of contested ballots by voting. The sequence of steps prescribed for completing the protocol was not strictly adhered to in over one third of observations. PEC members had pre-signed the results protocols in 27 cases and in 2 cases IEOM observers noted an attempt to deliberately falsify the results. Forty-six PECs observed had problems completing the protocols. In one quarter of observations they were not posted at the PEC.
The early stages of tabulation were assessed negatively in 37 out of 134 DECs observed, mainly due to tensions in or around the DEC and inadequate conditions at DECs that caused overcrowding and limited transparency, as well as restrictions on observers’ access in 8 of them. Overcrowding, tension or unrest were noted in close to half of the DECs observed. Observers reported 53 cases of PECs changing protocol figures in DEC premises which contravenes the law and undermines the integrity of the tabulation process. By 06:00 am on Monday morning, only 6 of the 130 DECs observed had processed half of the protocols, which is indicative of a slow process. Tabulation was interrupted in at least two DECs and was expected to resume as of midday. Negative assessments of the tabulation were due to the chaotic nature of the process and the overload of the electronic system for the processing of protocols. Copies of the tabulation protocols were not provided to those entitled to receive them in 37 cases.
Quelle: OSZE, 22.07.2019, https://www.osce.org/odihr/elections/ukraine/426257.
Committee of Voters of Ukraine (CVU): Main findings of CVU on the election day
According to the CVU, the E-day was generally conducted in accordance with the requirements of Ukrainian legislation and international standards of democratic elections. In comparison with the previous elections of the President of Ukraine in 2019, the extraordinary parliamentary elections in 2014, the number and nature of violation of electoral laws has not fundamentally changed.The official observers of the CVU identified a number of problems and violations during the organization of the voting process and in preparation for its conduct, however, these violations were not of a systemic nature and were not such as to have a significant impact on the results of the will of the citizens.Among the most typical violations: mistakes in the work of polling station election commissions and the conduct of campaigning against the terms defined by the Law “On Elections of People’s Deputies of Ukraine”.The presence of illegal campaign materials has become one of the key issues on the eve of the day of voting. According to observers of CVU, the largest amount of illegal campaigning materials was distributed on behalf of the political parties “Servant of the People”, “Opposition Platform for Life”, “Opposition block”. Also available on behalf of the 5 political forces (Agrarian Party of Ukraine, Svoboda, Holos, European Strategy, Batkivshchyna), as well as a number of candidates in single-mandate districts.A significant number of violations were caused by incorrect interpretations or ignorance by the members of election commissions of the current legislation. Partly contributed to such a situation, including the replacement of members of election commissions and the lack of enough time to familiarize new members of commissions with the features of electoral law. On the voting day, several commissions took unlawful decisions to put the stamp “out” against the names of certain candidates, which led to spoiling the ballots and delays in the start of voting. Also among the problems: filling in the election documentation to the official end of voting.In some cases, the CVU recorded the use of such abusive technologies as the transporting of citizens to polling stations, the use of indirect voter bribes and attempts to take ballots outside the polling stations. These facts were of a single nature.CVU generally welcome the activities of the Central Election Commission and the National Police in preventing violations on the day of voting. On the election day, the CEC exercised its activities in compliance with the provisions of the electoral law. Law-enforcement agencies properly ensured the rule of law at polling stations and responded to violations of electoral law.In general, voters had the opportunity to make an informed choice on the election day. Only in some cases there were no posters of candidates at the polling stations. In other situations, the commissions met the requirements of the law and provided citizens with all the necessary information.Quelle: Wählerkomittee der Ukraine, 22.07.2019, http://www.cvu.org.ua/eng/nodes/view/type:news/slug:vidbulasia-pres-konferentsiia-otsinka-kvu-dnia-holosuvannia.Der komplette Abschlussbericht des Wählerkomitees der Ukraine zu den vorgezogenen Parlamentswahlen in der Ukraine vom 21. Juli 2017 findet sich unter http://www.cvu.org.ua/uploads/eng.pdf
Statement of the Civil Network OPORA on Preliminary Observation Results of Early Parliamentary Elections in Ukraine 21 July 2019 (Ausschnitt)
Overall assessment of the election process
21 July 2019 early parliamentary elections in Ukraine were organized and held by the state in line with the national legislation and democratic standards.
Despite the electoral system is not reformed, the campaign reflected key discussions between political parties and groups represented in society. Although some violations of electoral legislation were extremely serious, there is no reason to believe that they could affect the final distribution of votes by proportional electoral system at the moment we publish this report. Negative sides of the election process should become an extra reason for the newly-elected parliament to reform electoral, criminal and other legislation guaranteeing a punishment for electoral legislation.
According to OPORA’s observers, the voters received good conditions for free expression of will, and electoral legislation was predominantly realized in line with the principle of equal rights and opportunities. High-level competitiveness of the electoral process was ensured both in the national election district and in the absolute majority of single-mandate districts. According to OPORA, the voter turnout was 49.3% with 0.6% margin of error. The citizens were a little less active in these elections compared to 2014 early campaign. Taking into consideration that elections were held in summer, citizens demonstrated a fairly high interest in the process.
Public authorities have managed to avoid unjustified interference in the election process. Besides that, the misuse of administrative resources during the campaign was not systematic.
None of political parties have had a monopolized influence on the functioning of the power vertical in the country. None of them also used administrative levers on a wide scale to gain preferences in the electoral process. However, Ukraine will need to implement well-considered legislative and practical steps towards further depoliticization of the civil service and activities of local self-government bodies. The need for such steps was reaffirmed by reported misuses with officials involved in individual districts and local communities. It’s necessary to pay special attention to the reforming of legislation and by-laws aimed at prevention of misuse of budget resources for political and election purposes.
OPORA would like to mention that the National Police of Ukraine and other law enforcement agencies played a positive role in ensuring law and order, as well as the legitimacy of electoral process. Activities of law-enforcement officers aimed against violations during early parliamentary elections is an encouraging signal on the way to ensuring the certainty of punishment for electoral crimes. However, observers believe that law enforcement officers should continue to strengthen their own institutional capacity to detect, counteract and investigate electoral violations. Verkhovna Rada of Ukraine, in its turn, is obliged to adopt amendments to the legislation, strengthening procedural capacities of the investigating authorities, as well as the legal certainty and effectiveness of legislative prohibitions and restrictions in the electoral process.
Candidates in single-member districts applied technologies that involve offering material incentives to the voters, what was the major challenge in parliamentary elections. Thus, OPORA’s observers reported a significant number of incidents with signs of indirect voter bribery during the election campaign. The voters were usually offered a wide range of goods, services, and other material assets. As a result of no guarantees for politically impartial distribution and use of budget funds, state and local budget programs have also become instruments for giving the voters hidden material incentives.
The organization believes that voter bribery technologies could have a potential impact on voting results in the certain single-member districts and, therefore, each reported incident must receive a comprehensive legal evaluation. Current Ukrainian legislation does not always allow law-enforcement bodies to effectively counteract offering material incentives to voters, and needs to be reformed on the basis of draft law #8270, which has already been developed.
Unfortunately, OPORA’s observers reported wide-scale violations of campaigning rules, committed by political parties and candidates. These cases questioned practical implementation of principles of transparency and accountability of expenses made from electoral funds and by candidates. As long as the influence of social networks on election campaigns has been growing, it’s necessary to seriously discuss the accountability for expenses on such campaigning.
Another problem of the election campaign was active spreading of negative, non-balanced of knowingly false information against electoral rivals. Mass media were also involved in black PR campaigns. Democratic election standards include, among other things, the right of candidates and voters to participate in elections without fear of dealing with personal discredit or public prosecution.
OPORA would like to mention that a series of incidents involving restriction of activities of official observers and journalists took place in the course of the campaign. For example, OPORA’s observers faced illegal obstruction to their activities in Chernivtsi and Dnipropetrovsk oblasts before the Election Day. On the 21 July Election Day, Head of a DEC in Zhytomyr oblast applied force against official observer of the organization. The organization hopes for an objective investigation of incidents and demands fair punishment of everyone guilty in arrogant and unlawful actions against observers. The right for an unimpeded observation is one of guarantees for democratic elections, and must be respected by electoral subjects and the state.
Application of unfair technologies became one of the negative trends in the election process. Registration of namesake candidates and usage of brands or names of political parties in interests of candidates, who do not belong to these political parties, are two examples of such technologies. Such actions of competitors have signs of obstruction to electoral rights of citizens through a deceit, and are investigated by the National Police of Ukraine. According to OPORA, introduction of a clear legal responsibility for the bribing of a candidate would be effective in prevention of such technologies.
According to OPORA, the Central Election Commission has provided a good election administration, including simplification of the procedure for temporary change of voting location without changing of an election address. However, upon the end of election process, the CEC and the expert environment should further analyze the uniform application of legislation when deciding on the registration or withdrawal of candidates. The research of such conflicts in early parliamentary elections will prevent similar problems in the next election campaigns. This analysis should also lead to the reform of legislation regulating registration of candidates, including a detalization of the procedure for checking the compliance with durational residency requirement.
Assessment of compliance with procedures on 21 July 2019 Election Day
On the Election Day, Civil Network OPORA assessed the quality of election administration and adherence to legal procedures by electoral subjects at statistically-based sample of polling stations.
During the Election Day, observers of Civil Network OPORA haven’t noticed systematic violations of electoral legislation or conflicts, which could have destabilized the election process or affected the election outcomes. However, frequent and repeated procedural violations, committed by precinct election commissions and caused by incompetent voters and/or their fraudulent intentions, have had a negative impact on the course of 21 July 2019 Election Day.
We are especially concerned about the issuing of ballots without verification of relevant documents or repeated attempts to vote for another person, which occurred quite often. On Election Day, such incidents were recorded in different regions of Ukraine at 10.1% of polling stations. This type of violations prevails in the statistics of violations, which is being constantly analyzed and summarized by Civil Network OPORA. The current situation is similar to the tendency of 2014 early parliamentary elections, when the amount of similar violations for the same period reached 12.9%, and to the last presidential election, when such violation was detected at 14.5% of polls in the first round.
Another most frequent violation on 21 July Election Day disclosure of secret ballot by voters showing marked ballots or incorrect placement of booths and arrangement of voting sites at PECs. Such incidents were reported at 4.2% of polling stations. This indicator reached 5% in the second round of presidential election in Ukraine, but was smaller in the last parliamentary election (3.9% of polling stations).
At this elections, all participants of electoral process were more responsible to comply with requirements not to allow for photographing the ballots at the PSC premises. Such cases were sporadic and were recorded by observers only at 0.8% of polling stations. In the first voting round at the presidential election, the scale of such violations was much higher (4.8% of polling stations). During the second round, cases of photographing a ballot at the premises of polling stations (in a voting booth, or beyond) were recorded by OPORA observers at 3.3% of polling stations.
No other critical or negative cases were recorded as related to interference with the operations of polling station commissions or posing obstacles to the exercise of citizens’ voting rights. In particular, OPORA observers reported about the lack of recurrent attempts to cast ballots in stacks into ballot boxes, or taking the ballots outside the polling station (statistical data for the recorded cases of such violations is 0.1%). However, observers also notified about the fact of casting ballots into a fixed box at the polling station no. 140750 in constituency no. 50 in the town of Myrnohrad (Donetsk region). Observers failed to note any planned and systemic cases that might imply the attempts of implementing the vote buying schemes.
Civil Network OPORA analyzed the course of the vote count after the completion of voting at the early parliamentary election on July, 21, 2019, and continues to monitor the establishment of voting results. Upon the whole, the count stage ran with no systemic violations but in a rather conflicting environment, with accompanying typical procedural abuse. OPORA observers reported that 3% of polling station commissions did not keep to the procedures set by the law, freely interpreting certain legal provisions. Besides, observers did not always had a chance to control the course of the vote count on all stages, such as to see marks in the ballots. At this election, they did not have such opportunity at 4.9% PSCs. In the first round of the regular presidential elections, the problem was lower in scale (1% of polling stations only).
Incidents and Violations on Election Day on July, 21, 2019
During the monitoring over the compliance with electoral law on election day, during the vote count, and acceptance of electoral documentations at the DECs from PSCs on July, 21, 2019, observers of the Civil Network OPORA recorded 759 cases at the PSCs and 123 cases of violations at the DECs (as of 9:00 a.m.). In total, the electoral process was democratic, while the significant violations recorded by OPORA observers were sporadic and could not impact the voting outcome at these polling stations/constituencies. At the same time, several cases with violating the procedure of the vote count and preventing the expression of will and taking record of violations give justified grounds to observers not to trust the count results.
The biggest number of violations include the facts related to information and logistics support—274 (the highest number was found in central regions of Ukraine—182). The most typical were the following: lack of the necessary number of ballot boxes and booths for secret ballot, and the lack of information posters. Moreover, there were numerous cases of incompliance with the requirements to the minimum space for the voting site, location of polling stations above the ground floor, in some cases, observers also recorded the impossibility to use the booths for a person on a wheelchair. In one case, a wheelchair user voted at the window-sill in the polling station, in another case, a voter on the wheelchair was not able to fit within the too narrow doorway to the building, and had to vote outside.
Quelle: OPORA, 22.07.2019, https://www.oporaua.org/en/statement/vybory/parlamentski-vybory/parlamentski-vybory-2019/19345-zaiava-opori-pro-peredni-visnovki-sposterezhennia-na-pozachergovikh-viborakh-narodnikh-deputativ.Dokumentation