By-election of an MP of Ukraine in district #179 (cantered in the city of Krasnohrad, Kharkiv oblast), is scheduled for 15 March 2020. The by-election in single-mandate district is being held because Oleksii Kucher, who was elected as an MP in early parliamentary elections in July 2019, became the Head of Kharkiv State Administration. The district comprises the city of Lozova, settlements in Lozova, Zachepylivka, Kehychivka, Krasnohrad, and Sakhnovschyna raions of Kharkiv oblast. The voting will be organized at 189 polling stations in the district. 

By-election of an MP of Ukraine are held under the Law of Ukraine on Elections of People's Deputies of Ukraine, which has expired as the Election code was adopted, and is now used only for organization of by-elections and substitution of MPs in current Parliament. 

The ballot paper includes 37 MP candidates, 27 of whom are nominated by political parties and 10 are independent. Only one parliamentary political force will compete for the seat - the European Solidarity. The Batkivshchyna, Opposition Platform - For Life, and Holos party did not nominate candidates. The Servant of the People party had nominated Viktoriia Alieksieichuk at first, but then refused from participation. The political party has publicly explained its decision as an intention not to interfere with the election campaign of the former Head of Kharkiv Oblast State Administration Yuliia Svitlychna. Two more persons have withdrawn from the campaign: Oleksandr Didenko, an independent candidate and member of the Opposition Platform - For Life party, and an unaffiliated independent candidate Mykhailo Sokolov. Three more candidates have been nominated by political parties, but the CEC hasn't registered them as they failed to pay the deposit. 

The election campaign was accompanied by a quite high competition between candidates who used different forms of campaigning and had sufficient resources to conduct it. The following of 37 candidates have realised wide-scale campaigns: Olha Kovalenko (Women for the Future),  Mykola Muzychenko (independent), Tetiana Yehorova-Lutsenko (independent), Kyrylo Oksen (independent), Victoriia Ptashnyk (European Solidarity), Tetiana Lazurenko (independent), Yuliia Svitlychna (independent), and Ihor Shvaika (AUU Svoboda). It is especially interesting that independent candidate Kyrylo Oksen has realised quite an intense campaign, despite he apparently hadn't opened a campaign account. 

The course of by-election of MP has one more time proved that the state should strengthen oversight of the campaign financing. 

All expenditures on election campaigning should be made exclusively from election fund accounts. The CEC issued warnings to 16 candidates for not opening it in time.

OPORA's observers haven't noticed voter bribery or other gross violations of the election law during the election process. However, there were some incidents that could be classified as obstruction to campaigning activities of candidates, activities of official observers and journalists. The organization noted that candidates have poor motivation to formally document their public allegations of violations committed by competitors, and appeal to court or law enforcement agencies. 

The increased influence of campaigning on social networks makes it necessary to regulate online activities of candidates by the legislation, especially to prevent its illegal financing. The Verkhovna Rada of Ukraine refused to solve this problem during the re-consideration of the Election Code and should return to a comprehensive study of the problem.

The election administration process has encountered a number of problems. The key problem was the refusal of political parties and candidates to participate fully in the formation of election commissions. The CEC had to appoint the missing members of the DEC by itself to form a minimum composition, and the DEC also encountered the same problem during the formation of PECs. It was organizationally difficult for the DEC to conduct a tender for the procurement of transport services for PECs. Thus, there may be difficulties with the delivery of ballots and protocols. OPORA calls on the CEC, the DEC and local authorities to promptly address possible problems in PEC activities. 

Assessment of the administration in by-election process

At the time of this report was released, OPORA gives a positive assessment to activities of the CEC in preparation and conduct of the voting. The CEC has made enough effort to interpret important electoral procedures that are not sufficiently regulated by the Law of Ukraine on Elections of People's Deputies of Ukraine. The process of candidate registration in the CEC conflict-free and in line with national legislation.

The highest administration body had faced a challenge related to the formation of the DEC, once political parties failed to submit nominees to the membership of this commission. Thus, 5 parliamentary political parties and 22 parties which had an election list in 2019 early parliamentary elections, could have nominated commission members. Only 8 of 27 parties entitled to form the DEC had exercised this right (Servant of the People, Opposition Platform - For Life, and European Solidarity as parliamentary parties, and the Servant of the People, Party of Sharii, Opposition Platform - For Life, Radical Party of Oleh Liashko, and European Solidarity as subjects of parliamentary election process in 2019). The CEC had to appoint 4 members of the DEC by itself to form it in a minimum composition.

On this by-election of an MP of Ukraine, the DEC will realise a pilot project involving a special program to draw up protocols at election precincts. A PEC enters the data into an application, received in advance from the DEC, to verify the completeness and correctness on the protocol data. The CEC has passed a resolution and obliged local authorities to provide the PECs with the necessary computer equipment. The CEC expects that the application will minimize errors and reduce the number of protocols returning from the DEC to PECs for verification. 

Due to the restriction on mass events with 200 or more participants, established by the Cabinet of Ministers of Ukraine, the CEC has passed a resolution on preventive measures against the spread of COVID-19 during the voting process. The Commission recommended the DEC to provide the PECs with documents from the Ministry of Health of Ukraine on the prevention of coronavirus spread. PECs are obliged to use personal protective equipment, prevent crowds, and recommend voters to stay outside the premises. At the same time, Ukrainian legislation does not establish restrictions on the electoral process and voting with the hazard of spreading an infection.

OPORA's observers positively assessed the professionally of DEC members despite repeated rotations in its membership and conflicts during its meetings. Key obligation of the DEC was to form PECs after most of the parties and candidates had failed to submit their nominees to these commissions. Thus, the DEC has realised this obligation quite well. At the same time, OPORA's observers noted some problems in activities of the DEC related to the organization and holding of elections.

From 12 to 13 March 2019, the DEC had been delivering ballots to PECs. The ballots shall be accepted by at least three PEC members at a DEC meeting. In district #179, Head of the DEC decided to hold field meetings to deliver ballots to settlements of the district. This procedure was established by the CEC resolution and was justified by the need to reduce the cost of election documents' delivery and facilitate functioning of PECs. According to OPORA's observers, the commission decided to issue PEC ballots at field meeting due to a lack of sufficient funds for PEC logistics. DEC members also expressed concern about the availability of financing for only one visit of PEC members to a DEC meeting. However, PECs may need to visit meeting of a higher-level commission if a tabulation protocol gets corrected. The election commission didn't have enough financing because it had not timely conducted a tender for the procurement of services in accordance with the Law of Ukraine on Public Procurement. The commission's estimate provides expenses on transportation of PEC members in an amount that doesn't require a tender. The DEC hopes that local authorities will assist if there is a need to provide PECs with transport to deliver corrected precinct protocols. Procurement issues at election commissions demonstrate the need to improve the corresponding procedures and timelines, while respecting the principles of their transparency, accountability and non-corruption. 

DECs has failed to ensure full compliance with legislative requirements concerning the publication of election programs of MP candidates in regional media. According to the Law of Ukraine on Elections of People's Deputies of Ukraine, each candidate has the right to publish his/her election program containing under 3,900 printed characters in one of the local print media of state or communal ownership. However, the DEC learnt from a complaint filed by a candidate's proxy that a local media had failed to print campaign programs of Viktoriia Ptashnyk, Yuliia Svitlychna, and Who Shvaika, and printed programs of Valerii Bebyk and Ihor Fedorenko twice. The DEC decided to meet the legislative requirements regarding programs of three candidates, but the decision was realized beyond a deadline (later than 8 days before the Election Day). Thus, voters had less time to learn the untimely published election programs in the local media. As of the morning of 12 March, newspapers containing election programs of candidates had been reprinted.

189 PECs formed by DECs with a minimum membership will guarantee an opportunity to vote. Only 3 of 5 parliamentary parties exercised the right to nominate PEC members (Servant of the People, Opposition Platform - For Life, and European Solidarity). Instead, only 5 MP candidates participated in the process of PEC formation (Viktoriia Alieksieichuk, Tetiana Yehorova-Lutsenko, Viktoriia Ptashnyk, Yuliia Svitlychna, and Ihor Shvaika). Thus, only 8 subjects exercised the right to submit candidates for PEC membership, while the minimum PEC membership of a small polling station is 10 persons. The DECs had independently resolved the staffing problem, and included PEC members upon the submission of the DEC Head. OPORA states the certain problems in the election process may emerge as a result of parties not participating in PEC formation. On the one hand, minimum memberships of PECs may bring organizational difficulties on the election day. On the other hand, candidates who have refused to participate in the formation of PECs may accuse members of such commissions of politically motivated actions. 

At the time this report was published, OPORA's observers have no information about the risks of PEC disruption or wide-scale violations in their work. PEC members expressed their concern to observers about possible problems with the availability of transport due to the limited financial resources of the DEC. Unfortunately, one PEC in the district had unlawfully obstructed to activities of OPORA's official observer. On 12 March 2020, election commission at polling station #630503 did not allow an observer from of Civil Network OPORA to attend the meeting, justifying its actions by the fact that the observer arrived late. The PEC affirmed that an observer can not be admitted to a commission meeting after its start, but the law doesn't establish such a restriction. Head of the DEC was also not allowed to join the meeting. Observers of the organization have appealed to the DEC demanding to take action against illegal activities of PEC members. Thus, OPORA received information that the DEC plans to consider early termination of this PEC's authority or of its individual members.

By-election of an MP of Ukraine has again demonstrated the need to secure a stable election commission functioning in practice. Thus, it would be reasonable to train potential members of election commissions in-between elections, and motivate parties to systematically work on selection of their representatives at DEC and PEC. The Parliament of Ukraine should continue discussing initiatives aimed to professionalize members of election commissions in order to form a balanced approach to solution of this problem. In particular, positive and negative aspects of the CEC's initiative regarding the involvement of its regional or territorial units in nomination of individual candidates for DECs and PECs should be discussed thoroughly.

Activeness of candidates and peculiarities of the election campaign

At the time this report was published, 7 of 37 MP candidates have been conducting the most active election campaigns. The following candidates were quite active: Mykola Muzychenko (independent), Tetiana Yehorova-Lutsenko (independent), Kyrylo Oksen (independent), Victoriia Ptashnyk (European Solidarity), Tetiana Lazurenko (independent), Yuliia Svitlychna (independent), and Ihor Shvaika (AUU Svoboda). Two more candidates - Dmytro Avakin (independent), Olha Kovalenko (Women for the Future) - widely distributed election campaign materials in the district.

OPORA's observers say the election campaign is quite intense, despite candidate Viktoriia Alieksieichuk from the largest parliamentary party Servant of the People, had refused to run. This circumstance may have influenced the intensity of the election campaign, but there is no reason to say it lacks competition. 

OPORA has assessed the representation of candidates in different segments of the election campaign. According to the organization, candidate Yuliia Svitlychna placed the largest amount of outdoor political advertising. Victoriia Ptashnyk (European Solidarity) was the most active among the candidates distributing printed campaign materials and placing political advertisements on regional radio stations. According to observers, Yuliia Svitlychna has placed the biggest amount of political advertising on TV channels, on the Internet, and in print media of the district and oblast. We should also mention that hidden political advertisements or ‘dzhynsa’ were not widespread in print media. Materials in print media with features of hidden advertising were usually about activities of candidate Yuliia Svitlychna. 

The following candidates met with the voters the most often: Yuliia Svitlychna (independent), Viktoriia Ptashnyk (European Solidarity), Tetiana Yehorova-Lutsenko (independent) and Ihor Shvaika (AUU Svoboda).

The role of campaigning on social media has remained the same as reported by OPORA in the previous report. For example, candidates Viktoriia Ptashnyk (European Solidarity) and Yuliia Svitlychna (self-nomination) were the largest advertisers on Facebook from 2 March to 8 March 2020. Follow the link for a complete analysis of the Open Facebook Library of Political Advertising, prepared by OPORA: https://bit.ly/38HSroV. MP candidates have been also  quite actively using other social media and local groups in them to inform voters in the district about their election programs and political views. 

As the role of social networks and Internet resources during the elections has been constantly increasing, there is a need to regulate activities of candidates and parties in this campaigning segment through the legislation. During the reconsideration of the Election Code, the Parliament did not elaborate on this issue and, therefore, OPORA calls on MPs of Ukraine to continue a dialogue on legislative regulation of online and social network campaigning. It's necessary to pay special attention to the reporting on such campaigning expenses. In this context, OPORA welcomes the CEC's communication with Anika Geisel, Facebook's Public Policy Lead for Elections in Europe, Middle East and Africa, concerning the features of political advertising on the network, its financing, and ways of combating false information. A dialogue with transnational platforms is an important measure ensuring transparency and accountability of political advertising on social networks. 

Violations of the legislation and democratic election standards

There are no confirmed facts of voter bribery or other forms of offering monetary incentive to citizens, what is definitely positive side of the election process. Despite a rather conflicting interaction between a number of competitors, candidates refrained from using bribery technologies. These very technologies have the negative effect on the state of free exercise of franchise.

During the reporting period, OPORA's observers have repeatedly noticed dissemination or placement of non-marked campaigning materials. These incidents campaigning of independent candidate Kyrylo Oksen, whom the CEC issued a warning on 12 March for violating the deadlines for opening election fund accounts. This candidate is one of the most active candidates throughout the election process, but his expenses were not official and will not be reflected in the financial statements.

The transparency of expenses and sources of financing of a candidate is vital in adherence to democratic election standards. Before the end of campaigning period, the CEC issued warnings for violation of deadlines for opening of election fund accounts to 16 candidates: Svitlana Aheieva, Iryna Bondar, Oleh Holtvianskyi, Vitalii Horba, Valentyn Zakharov, Anna Kniazeva, Ihor Leonenko, Ihor Naida, Dmytro Ohurtsov, Kyrylo Oksen, Oleksii Prystai, Yana Svitlychna, Larysa Serhiienko, Olena Skomoroshchenko, Halyna Kharhalis, and Denys Sheibut. On the one hand, non-opening of election fund accounts means that such candidates intend to campaign illegally. On the other hand, the absence of election fund accounts may be explained as indirect evidence of “technical” candidates in the election process.

MP candidate Victoriia Ptashnyk (European Solidarity) declared on 10 March 2020 that journalists of the TV channel "Priamyi" were prevented from accessing a meeting with voters organized by her competitor Yuliia Svitlychnaya, and published a video about the incident. Candidate Yuliia Svitlychna and her representatives called the incident a political provocation and denied the obstruction of journalists' activities. OPORA's observers were not present at the event, but the National Police of Ukraine is investigating the circumstances.

OPORA's observers were informed about the misuse of administrative resources in electoral interests and other violations of legislation, which were also made public by election competitors in the media and social networks. The organization calls on all candidates to contact the National Police of Ukraine and publicly provide sufficient evidence, which prove violations committed by competitors.

Thus, the Election Day in district #179 approaches in the conditions of high competition and in the absence of verified gross violations of the electoral legislation. OPORA urges election commissions and law enforcement agencies to act decisively against violation of the law in the last days of the election campaign. MP candidates must not only ensure mutual control, but also knowingly provide the documentation and confirmation of possible violations committed by competitors. 

Recommendations

To the CEC

  • Ensure prompt communication with the DEC and proper monitoring of its activities on the election day, and during the tabulation process.
  • Inform the media and interested public about the results of pilot project in PECs, i.e. application of the special program for checking the correctness and completeness of precinct protocols.

To the Verkhovna Rada of Ukraine

  • Improve the Criminal Code of Ukraine and the Code of Administrative Offenses to guarantee the certainty of punishment for electoral crimes.
  • Ensure prompt improvement of the Election Code in order to properly prepare for the upcoming local and national elections.

To political parties

  • Political parties, especially those receiving public donations, should show a greater interest in the election campaign. They should also provide oversight of the vote count process and determination of election results.