2020 roadmap for electoral, referendum and political finance reforms. Expanded version

Executive Summary

On December 19, 2019, after eight years of consultations and negotiations between political actors, civil society, and the expert community, the Verkhovna Rada of Ukraine finally adopted a new election code. The final version of the code largely reflects recommendations proposed by civil society and election experts to ensure human rights and facilitate the political participation of various stakeholder groups, including IDPs and other internally “mobile” groups of citizens, voters with disabilities, and women. It will also serve to expand the list of election-related data available in the public domain and allow for proper evaluation of electoral processes. The electoral reforms, however, should not be limited only to the harmonization of the electoral laws and the introduction of the new electoral systems.

The new open list proportional system introduced by the Code for parliamentary and local elections has a number of features of the closed list proportional system. In particular, ballot papers are designed in such a way that they encourage voters to vote for one of the party lists rather than for an individual candidate on the respective lists. The box for selecting an individual candidate is placed at the very bottom of a lengthy ballot; many voters would likely not notice the box, simply vote for one of the party lists, and leave rather than take the additional time to identify and fill in the number of their preferred candidate.

Under the open list proportional system to move to the top of the multi-mandate constituency (MMC) list, a candidate would need to receive a number of votes that equal 25 percent of the electoral quota. The electoral quota may, in parliamentary elections depending on voter turnout, be rather high, some 7,000-9,000 votes. If no candidate receives votes amounting to 25 percent of the electoral quota, seats are distributed to candidates on the MMC party list according to sequence determined by the political party in question. In addition, in parliamentary elections, if a party meets the national vote threshold for seat allocation, the top nine candidates on that national party list are given priority in getting elected, regardless of voter preference. These top nine candidates are not assigned to any MMC, so voters cannot cast a preferential vote for them even if they wanted.

In addition to the harmonization of the electoral laws and electoral system change, a meaningful electoral reform should also provide for improvement of the election procedures, the effective implementation of these procedures in practice, the introduction of proportionate, effective and dissuasive sanctions for election-related offences, ensuring that election commissioners are professional, and that the role of the law enforcement agencies and courts in protection of the electoral rights is strengthened.

Key reform priorities for elections, referendums and political finance should include:

further promotion of political competition, in particular, by allowing independent candidates to stand for local elections and by strengthening voters’ influence on the allocation of seats to candidates under the open list proportional system used in parliamentary and local elections;
decreasing the size of the electoral deposit to be paid by parties and candidates to run in the local elections; clarification of the procedures, which the respective election commissions must follow when they verify candidates’ compliance with the eligibility requirements set forth by the electoral legal framework; disallowing candidates for certain elections to withdraw their candidacy in the last minute before the election day and thereby potentially derail the election;
establishing a unified approach for the composition of the election commissions in all elections (where it is practically possible and makes sense); establishing the regional and local branches of the CEC; implementing internal structural and operational reforms within the CEC (including the adoption of a CEC communication strategy for various stakeholder groups, enhancing transparency, accountability and inclusiveness of CEC operations, introduction of long-term planning of CEC operations); strengthening the professionalism of members of election commissions through mandatary training and certification of election commissioners;
ensuring a better regulation of election campaigning, in particular, election campaigning on the Internet and in the new media;
enhancing transparency of political and campaign finance; addressing the recommendations for political finance reform proposed by the Group of States Against Corruption (GRECO), the Venice Commission and the Office of Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR); taking measures to prevent excessive funding of political parties and election campaigns by imposing restrictions on paid political advertising on radio and television; full launch of the electronic financial reporting system for political parties and candidates;
improving the procedures for voter registration and for overall administration and maintenance of the State Register of Voters; auditing of the State Register of Voters; further facilitation of electoral participation of IDPs and economic migrants;
combating impunity for election-related offences and ensuring an effective election dispute resolution;
promoting more extensive use of information technology in elections (without shifting to Internet voting);
ensuring a better accessibility of elections for voters with disabilities; facilitating active women participation in the election process; and
strengthening other forms of direct democracy, including referenda.

The issues covered in this document, as well as the recommendations it offers to address these issues, could and should create the basis for further election, referendum and political finance reforms in Ukraine. Most of these reforms should be implemented no later than in May 2020 so that the improved provisions of the Election Code and other relevant legal acts can benefit the 2020 local elections. Electoral contestants and administrators need to be properly prepared for these elections: the CEC, in particular, needs to be given ample time to issue the necessary guidelines, conduct voter awareness, develop and distribute election-related materials as well as adopt the secondary legislation necessary for the proper enforcement of the new electoral legal framework.

Introduction

In Ukraine, 2019 was marked by a number of positive election-related developments. Despite harsh competition between the two leading presidential candidates, Volodymyr Zelenskyy and Petro Poroshenko, the 2019 presidential elections were generally held in line with the international standards for free, fair and democratic elections, and for that reason were appraised by international and domestic election observation missions. The pre-term parliamentary elections held on July 21, 2019, also complied with international standards. The election of the new President and creation of pro-president majority in the Parliament, Verkhovna Rada, created the necessary political environment for acceleration of the reforms in the field of elections, referendums and political finance. The need for such acceleration has been repeatedly highlighted by election experts and civil society activists for years.

Early termination of powers of all the CEC commissioners on September 13, 2019, and the subsequent appointment of the new CEC members to replace the dismissed commissioners, on one hand, proved that the CEC still remains vulnerable to political influence (as the powers of the all the CEC commissioners were terminated based on political considerations rather than due to any CEC serious omissions in organizing 2019 elections). On the other hand, the CEC’s renewal opened a window of opportunities for implementing the needed operational and structural reforms within the CEC, which could not be implemented by the previous CEC due to time constraints and the administrative burden of having to conduct two national elections in 2019.

The adoption of the Election Code by the new Verkhovna Rada on December 19, 2019, was a tremendous step on the way towards implementation of election law reform in the country. Most provisions of the new Code have become effective beginning from January 1, 2020. The adoption and promulgation of the Code by large marked the end of harmonization of the electoral legal framework in Ukraine, which has been a long-standing recommendation of international observer missions and domestic experts since the beginning of 2000s. While harmonization of the election laws has only been partially implemented (as in addition to the Election Code certain aspects of the elections will still be regulated by the Law on Central Election Commission and Law on the State Register of Voters), the fact that many election procedures for the presidential, parliamentary and local elections has been harmonized should not be underestimated.

The key advantages of the Election Code are not limited to harmonization of the election procedures. Other advantages of the Code include, in particular:

introduction of the open list proportional system for the parliamentary and some local elections in which voters are able to influence the allocation of seats to candidates within the party lists;
ensuring better accessibility of elections to voters with disabilities;
introduction of feasible gender quotas in all types electoral systems used to elect MPs and local councilors, including the single non-transferable vote system used in lower-level local elections;
enhancing the overall transparency of many election procedures;
establishment of CEC branches at regional and local level to be in charge of voter registration and with certain devolved powers of the CEC Secretariat; and
institutionalizing the CEC Training Center as an institution that would be in charge of ensuring professionalism of the election commissioners and voter outreach.

The new Election Code also addressed lessons learned from the 2019 elections. In particular, it specified the term “residence in Ukraine”, explained how to calculate the term of residence, and how the respective election commission and other state agencies should verify candidates’ compliance with the candidate eligibility requirements (including residence).

The new Parliament succeeded in taking measures to regulate the procedure for initiating and holding a national referendum by establishing a parliamentary working group tasked with the drafting of a new National Referendum Law. Parliament also enhanced the political finance legal framework. Amendments to the Political Party Law adopted in December 2019 provided for the establishment of an electronic system for party financial reporting and specified the requirements to the financial data to be disclosed by parties in their quarterly financial reports. They also removed legal constraints with respect to sources of party funding and procedures for making private donations to political parties and increased the annual amount of public funding available to eligible political parties.

Despite all the above welcome measures there are still a number of outstanding issues to be addressed within the framework of electoral legal reform. In particular, the Code of Administrative Adjudication needs to be harmonized with the new Election Code; the system of sanctions for administrative and criminal election-related offences needs to be further strengthened; campaign finance would benefit from enhanced transparency to decrease the heavy dependence of parties and candidates on shadow and oligarch funding. Other necessary improvements include the introduction of requirements for mandatory training of the election commissioners, strengthening the accessibility of elections for voters with disabilities, and facilitating more extensive use of information technology in elections.

Due to the accelerated process in which the new Code was adopted, it suffers from a number of flaws and inconsistencies which should now be removed. In particular, the chapters of the Code governing national and local elections use inconsistent election terminology and certain procedures (e.g. for the establishment of the election commissions) still have to be unified for both national and local elections.

This document highlights the key issues in the areas of elections, referendums and political finance, and offers a set of recommendations for improvements in the respective areas.

Key recommendations

Based on the issues identified in this document, the International Foundation for Electoral Systems (IFES) and OPORA Civil Network suggest a set of key recommendations in the areas of elections, referenda and political finance. The table below identifies the respective reform priorities, the measures needed to make these priorities achievable, the agencies in charge of implementing the respective measures, and the deadlines for taking these measures. Encouragingly, several of the recommendations offered below for the consideration of the CEC are already under review or being implemented by the Commission.

The Parliamentary Committee on State Power, Local Self-Governance and Regional and Urban Development should renew public consultations to consider the proposed recommendations with all stakeholders, including the CEC, representatives of parliamentary factions and groups, local self-governance bodies, the expert community and civil society activists.

Given the emergency situation regime across Ukraine, such consultations should be conducted using the available on-line platforms complying with the principles of transparency and inclusiveness and terminate no later than by the end of April 2020 so that the electoral legal framework and practices are improved in a timely fashion, i.e. well in advance of the 2020 local elections.

№	Reform priority	Measures	Agency in charge	Deadline
1.	Further improvement of the open list proportional system for parliamentary and local elections	1.1. To strengthen voters’ influence on the allocation of seats to candidates on the party lists registered in multi-mandate constituencies, the number of votes needed for a candidate on the list to move to the top of the list and change the sequence of candidates on the list determined by political party should be decreased (the number of votes should be reduced from the current 25 percent to 5-10 percent of the electoral quota)	Verkhovna Rada of Ukraine	May 2020
		1.2. To ensure equality of the candidates in parliamentary elections, the provisions granting a priority in getting elected to the top nine candidates on the national party lists who are not assigned to any multi-mandate constituency should be removed from the Election Code	Verkhovna Rada of Ukraine	May 2020
		1.3. To ensure proportional representation each multi-mandate constituency created under the open list proportional system should be represented in the Parliament/local council in proportion to the number of registered voters in the MMC in question rather than in proportion to the voter turnout as foreseen in the current Code	Verkhovna Rada of Ukraine	May 2020
		1.4. To change the ballot paper format/design under the open list proportional system to encourage the voters to vote for individual candidates on the list rather than for the entire list	Verkhovna Rada of Ukraine	May 2020
		1.4. To provide for a clear and “user-friendly” procedure for establishing the election results and for the allocation of seats to the parties and candidates running under the open list proportional system	Verkhovna Rada of Ukraine	May 2020
		1.5. To clarify the procedure for calculating the electoral quota in the parliamentary elections	Verkhovna Rada of Ukraine	May 2020
2.	Improvement of the candidate nomination and registration procedures	2.1. To reduce the size of electoral deposit for the presidential and local elections to make sure that the right to be elected can be effectively exercised	Verkhovna Rada of Ukraine	May 2020
		2.2. To provide that electoral deposits must be returned not only to the winners of the elections, but also to the parties/candidates who receive a certain, legally established, number of the votes cast	Verkhovna Rada of Ukraine	May 2020
		2.3. To specify the procedure and terms for verifying candidates’ compliance with candidate eligibility requirements	Verkhovna Rada of Ukraine	May 2020
		2.4. To ensure a level playing field for political parties in local elections by allowing higher level (e.g. oblast level) party branches to nominate candidates for elections at the lower level (i.e. rayon or city level) in the absence of local party branches at those lower level(s)	Verkhovna Rada of Ukraine	May 2020
		2.5. To exclude from the Election Code the provisions allowing a presidential candidate in the second round of the vote (run-offs) to withdraw from elections	Verkhovna Rada of Ukraine	May 2020
		2.6. To harmonize the deadlines for withdrawal of candidacy and cancelation of candidate registration by the CEC in presidential elections	Verkhovna Rada of Ukraine	May 2020
3.	Ensuring appropriate conditions for domestic non-partisan election observation	3.1. To specify the rights of the NGO observers registered by the CEC in the nationwide election constituency	Verkhovna Rada of Ukraine	May 2020
		3.2. To lift the requirement that NGOs must obtain notary certification of certain supporting documents to get CEC accreditation to observe elections	Verkhovna Rada of Ukraine	May 2020
4.	Ensuring professionalism and stability of the election commissions	4.1. To provide for a unified approach to the nomination and appointment of election commission members and to set a ceiling on the maximum number of commissioners to be appointed to election commissions, regardless of the type of elections (wherever it is practically possible)	Verkhovna Rada of Ukraine	May 2020
		4.2. To provide for an exhaustive list of grounds for complete renewal of the DECs and PECs between the first and the second round in presidential elections	Verkhovna Rada of Ukraine	May 2020
		4.3. To provide for mandatory training and certification of election commissioners by the CEC Training Center	Verkhovna Rada of Ukraine	May 2020
		4.4. To facilitate the use of IT in the document flow and overall operations of election commissions	CEC; Verkhovna Rada of Ukraine	During 2020
5.	Strengthening independence, institutional capacity, transparency and accountability of the CEC	5.1. To specify the procedure for the President’s consideration of CEC nominees proposed by party factions/MP groups	Verkhovna Rada of Ukraine	During 2020
		5.2. To exclude or significantly restrict the possibility of early termination of powers of all the CEC commissioners	Verkhovna Rada of Ukraine	During 2020
		5.3. To facilitate the establishment of an expert advisory board/panel at the CEC	CEC	During 2020
		5.4. To ensure publication of all the election-related data in an open-data format (unless access to such data is restricted by the law)	CEC	During 2020
		5.5. To develop, approve and implement CEC communication strategy aimed to ensure effective communication between the CEC and key stakeholder groups	CEC	During 2020
		5.6. To develop, approve and implement CEC Strategic Plan (covering the entire 7-year term of the CEC’s term in office), as well as CEC annual operation plans to implement the Strategic Plan	CEC	During 2020
		5.7. To enhance accountability of the CEC include a provision into the legal framework requiring the CEC to present annual activity reports to the Verkhovna Rada, as well as specify the requirements to the content of such annual reports	Verkhovna Rada of Ukraine	May 2020
		5.8. To provide that the heads of CEC regional and local branches are appointed by the Head of the CEC Secretariat rather than by the CEC Chair, and/or to delineate the roles of the CEC Chair and Head of the CEC Secretariat in coordinating operations of the CEC branches	Verkhovna Rada of Ukraine	During 2020
		5.9. To ensure timely and sufficient funding of the regional and local branches of the CEC	Verkhovna Rada of Ukraine; Cabinet of Ministers	During 2020
6.	Ensuring effective election-related procurement within the narrow timeframes of the election processes	6.1. To amend the Public Procurement Law so that election commissions are able to effectively procure election-related goods/works and services within the narrow time frames of the election process without undermining the general principles of transparency and accountability of public procurement as established by the Public Procurement Law	Verkhovna Rada of Ukraine	July 2020
7.	Strengthening guarantees of the electoral rights	7.1. To provide for the possibility to change electoral address based on a court decision establishing the actual place of residence of the citizen/voter in question	Verkhovna Rada of Ukraine	May 2020
		7.2. To continue inter-departmental and expert discussions with respect to liberalizing the procedure for domicile registration (in particular, by replacing the permission-based Soviet “propiska” system by a declaration-based system where citizens notify the authorities of their place of actual residence)	Verkhovna Rada of Ukraine; Ministry of Internal Affairs; State Migration Service of Ukraine	During 2020
		7.3. To afford voters with disabilities the possibility to specify (in a request filed to the State Register of Voters maintenance bodies) the kind of accessibility instruments they need to effectively exercise their voting rights	Verkhovna Rada of Ukraine	May 2020
		7.4. To exclude the possibility of listing voters with disabilities as homebound voters without their prior consent/request	Verkhovna Rada of Ukraine	May 2020
		7.5. To provide that only those parties which ensured election of least 50 percent women among the total number of party MPs elected will be entitled to receive additional public funding currently reserved for parties that ensured election of no less than 30 percent women to the Verkhovna Rada	Verkhovna Rada of Ukraine	May 2020
		7.6. To introduce amendment to the Political Party Law whereby political parties would be required to ensure balanced representation of women and men in the party governing bodies	Verkhovna Rada of Ukraine	May 2020
8.	Enhancing transparency and effectiveness of voter registration procedures	8.1. To provide for a mandatory audit of the State Register of Voters	Verkhovna Rada of Ukraine	May 2020
		8.2. To ensure that political parties and candidates are able to effectively verify the accuracy of records in the State Register of Voters database	Verkhovna Rada of Ukraine	May 2020
		8.3. To provide for a full publication of the State Register of Voters data (with due respect to Constitution of Ukraine and European standards for protection of the personal data)	Verkhovna Rada of Ukraine	May 2020
		8.4. To expand the list of statistical voter registration data to be publicly disclosed by the CEC	CEC; Verkhovna Rada of Ukraine	May 2020
9.	Combating impunity surrounding election-related offenses	9.1. To strengthen the system of sanctions for election-related offenses by adopting changes to the Criminal Code and the Code of Administrative Offences (based on the draft law No 8270 registered in the previous Parliament by the Cabinet of Ministers)	Verkhovna Rada of Ukraine	May 2020
		9.2. To launch a permanent training program for the police and judges on election-related issues in the period between elections	National School of Judges; National Police	On a permanent basis
		9.3. To ensure publication of up-to-date data on ongoing investigations of electoral crimes and on the outcomes of these investigations (in an open data format)	National Police; Ministry of Internal Affairs	On a permanent basis
		9.5. To facilitate evaluation of the court practice in election-related cases and issuing relevant guidance to the lower-level judges	Supreme Court; National School of Judges	On a permanent basis
10.	Improvement of the election dispute resolution procedures	10.1. To align the Code of Administrative Adjudication with the Election Code	Verkhovna Rada of Ukraine	May 2020
		10.2. To introduce an electronic case management system and to ensure publication of comprehensive data on election disputes resolved by the CEC on a regular basis	CEC	During 2020
		10.3. To extend the deadline for filing complaints to election commissions from 2 to 5 days (following the date when the alleged violation was committed), as well as to restrict the possibility of rejecting complaints for technical/formalistic reasons	Verkhovna Rada of Ukraine	May 2020
11.	Implementing a well-thought approach towards the use of IT in election processes	11.1. To facilitate public consultations on the advantages and risks of electronic voting	CEC; Verkhovna Rada of Ukraine; Ministry of Digital Transformation	May 2020
		11.2. To provide for electronic transmission of the election result protocols from PECs to the CEC	Verkhovna Rada of Ukraine; CEC	2020-2021
		11.3. The consider expanding the use of IT in communications between the election commissions and candidates (e.g. submission of the registration documents in electronic format etc.)	CEC; Verkhovna Rada of Ukraine	During 2020
12.	Improvement of the election campaigning procedures	12.1. To establish proportionate, effective and dissuasive sanctions for violating campaigning provisions by adopting changes to the Code of Administrative Offences	Verkhovna Rada of Ukraine	May 2020
		12.2. To hold public consultations between political actors and experts aimed to identify the best approach towards regulation of election campaigning on Internet, new media and social networks	Verkhovna Rada of Ukraine; CEC	During the first half of 2020
		12.3. To establish basic principles for regulating political advertising on Internet and social networks	Verkhovna Rada of Ukraine	May 2020
		12.4. To strengthen the role of the National Broadcasting Council in identifying and/or prosecuting campaigning-related violations committed by media, including Internet media	Verkhovna Rada of Ukraine
13.	Enhancing transparency and accountability of political and campaign finance	13.1. To provide for a real-time publication of information on donations transferred to and expenses made from campaign fund accounts of the electoral contestants, as well as to ensure the publication of the respective information	Verkhovna Rada of Ukraine; CEC; National Bank of Ukraine	During 2020
		13.2. To bring the provisions of the Election Code governing the procedures for making donations to electoral contestants, as well as campaign finance reporting, in compliance with the recent changes to the Political Party Law introduced in December 2019	Verkhovna Rada of Ukraine	May 2020
		13.3. To consider and implement measures aimed to prevent excessive funding of election campaigns	Verkhovna Rada of Ukraine	May 2020
		13.4. To provide for a sufficient term for launching the electronic financial reporting system for political parties and candidates by NAPC, as well to ensure full publication of the e-reports filed by parties and candidates once the e-system is launched	Verkhovna Rada of Ukraine; CEC NAPC	2020-2021
		13.5. To clarify the mandates of the NAPC and election commissions with respect to campaign finance oversight in national and local elections	Verkhovna Rada of Ukraine	May 2020
		13.6. To transfer responsibility for primary verification of the campaign finance reports in the local elections from the territorial election commissions (TECs) to the local branches of the CEC	Verkhovna Rada of Ukraine	Once the CEC branches are established

Strengthening the ability of voters to influence the sequence of the allocation of seats to candidates under the open list proportional system. Clarification of the procedure for establishing the election results

The Election Code envisions that parliamentary elections as well as the elections of oblast councils and city councils in cities with at least 90,000 voters are held according to the open list proportional system.
Under this system, each multi-mandate constituency will be represented in the respective legislature (parliament or local council) in proportion to the voter turnout on election day rather than in proportion to the number of voters registered in the respective constituency.

Distribution of seats to election constituencies based on voter turnout in proportional electoral systems is not a common feature in European countries. The implementation of the proposed mechanism for seat distribution will potentially result in disproportionate representation of some constituencies in the respective legislature, and may additionally widen cleavages between various regional interests as the parliament or council elected under such system would likely tend to protect mainly the interests of those regions which dominate the elected body rather than the regions with lower turnout. This, in turn, would pose a threat of separatism and unevenly distribute the burden among the elected MPs or councilors with respect to maintaining links with their electorates as the elected officials from constituencies with higher turnout would engage with lesser number of voters compared to those elected in the constituencies with lower turnout.

In the mid- to long term, the Election Code should be amended to provide that each multi-mandate constituency is represented in the respective elected body in proportion to the number of registered voters rather than in proportion to voter turnout in that constituency.

The open list proportional system as introduced by the Code includes a number of features of the closed list system that significantly restricts voter’s influence on sequence of distribution of seats between the candidates on the party lists.

First, top nine candidate on the national party lists are given priority in getting the seats, i.e. they are de facto guaranteed being elected. These reserved top nine candidates are not assigned to any multi-mandate election constituency.

Second, the ballot paper design established by the Election Code would likely cause confusion among voters and may encourage them to vote for the party list rather than for the individual candidate on that list. Each ballot paper for voting in a multi-mandate constituency will include the names of the parties that registered lists of candidates for that constituency, the names of the top nine candidates on the national party lists, as well as the names of all the candidates on the lists. While the vote for a party list is mandatory (i.e. if a voter fail to vote for any party list, the ballot paper will be considered invalid), the voter can (but is not obliged to) vote for an individual candidate on the list he/she already voted for. To do this, a voter must handwrite the sequential number of the candidate number on the list in the special box at the bottom of the ballot paper. The ballot paper may cause voter confusion in a number of aspects: by voting for the MMC party list, a voter may believe that he/she also can vote for one of top-nine candidates whose names appear on the list; a voter may overlook the box for a vote on an individual candidate at the bottom of the lengthy ballot and only mark the ballot for a party list. Thereby the voter “approves” the sequence of candidates on the party list as determined by political party which turns the open list system into a de facto closed list system.

Third, the Code provides that only candidates who received no less than 25 percent of the electoral quota[1] will move to the top of the MMC list (‘break the list’) and change the party determined sequence for allocation of seats to the MMC list of candidates. If a candidate fails to secure 25 percent of the electoral quota, his/her place on the list will not change and the seats will be allocated to candidates according to their sequence on the list as determined by the party. Besides, 25 percent of the electoral quota can be unrealistic figure to achieve for most candidates. For instance, based on turnout figures for the 2019 parliamentary elections, 25 percent of electoral quota in those elections would translate into 7,000-9,000 votes.

Last but not least, the Code provides that seats which are not distributed in MMCs will be filled by candidates on the national/oblast/city list according to the sequence determined by political party for that list. This means that the voters’ influence on who are elected will be limited since national/oblast/city list are closed list determined by the respective party in advance of the election.

The Election Code should be amended to strengthen voters’ influence on the distribution of seats under the MMC lists in parliamentary and respective local elections. In a number of countries, this figure is set at 3-5 percent of the electoral quota. It is therefore recommended that, as a minimum, the number of votes that a candidate must secure to move to the top of the list should be lowered from 25 percent to 10 percent of the electoral quota.

Well in advance of the election to be held under the new proportional system, the CEC should conduct a comprehensive voter awareness campaign to explain the new voting procedures, how the ballot papers are to be filled, how the votes are converted into seats, and from which sources the information on parties and candidates can be received.

Reserved seats given to the top nine candidates on the national list violates the principle of equality of passive electoral rights as the top nine candidates on the lists are not assigned to any MMCs and therefore have an electoral advantage compared to other candidates. Any potential constitutional dispute in this regard should be resolved well in advance of the next parliamentary elections.

The provisions of the Code governing the vote tabulation and the establishment of the election results under the open list proportional system is formulated in complicated language that appears confusing even for experts with legal or election-related experience. The same applies to the provision that explain how the electoral quota is calculated for the parliamentary elections. This may lead too ambiguous interpretations.

The Code should be amended to provide for a clear and simple explanation of the procedure for vote tabulation, the electoral quota calculation, the transfer of votes into the seats, and the distribution of seats to party lists and to the candidates on those lists.

The procedure for vote counting and vote tabulation within a territorial election district are largely the same under the new Code as in previous election laws (except, of course, for the provisions stemming from the change of the electoral systems for parliamentary and local elections). The only significant change in this regard is that the DECs will be entitled to directly amend (correct) PEC vote counting protocols. In previous elections, only PECs were allowed to amend and update their vote counting protocol, when they discovered a mistake or a mismatch after the completion of the initial protocol.

As in previous election laws, the Code does not specify which data can be corrected under the procedure for completing an “updated” vote counting protocol. In previous elections, there were numerous cases when the PECs abused the right to “update” their initial protocols and corrected all figures (including figures related to voting results) even when there was the mismatch did not relate to the voting results, thereby potentially falsifying the outcome of the vote in the polling station.

The Code needs to make it clear that any changes to the figures in the protocols not related to changes of the inconsistent figures are prohibited.

According to the Code, a presidential candidate has the right to withdraw from the election race no later than in 10 days before the election day. However, the CEC can adopt a decision to de-register candidate no later than in 23 days prior to the election day or in 13 days before the run-off election day.

The inconsistency in the legal terms for withdrawal of candidacy should be revisited: if a candidate has withdrawn, the CEC should have time to adopt a formal decision on his/her de-registration.

Clarification of the procedure for candidate registration procedure and lowering the amount of electoral deposit for candidacy

The Election Code does not contain provisions that entitle independent candidates to stand for election to oblast and city councils conducted under the open list proportional system. The exclusion of self-nominated (independent) candidate in local elections is not in line with Ukraine’s obligations under the International Covenant for Civic and Political Rights and the 1990 OSCE Copenhagen Document. Cognizant that the 2006 and 2010 local elections held under the closed list proportional and parallel electoral systems lead to unnecessary politicization of the work of local councils, preference could be given to facilitate the possibility for independent candidate to contest elections at least to oblast and rayon councils given their constitutional nature as bodies that must represent the interests of local communities.

Consideration should be given to amending the Election Code to entitle independent candidates to stand for elections to local councils regardless of the electoral systems used.

The Election Code explains what “permanent residence within the territory of Ukraine” means and allows election commissions to de-register candidates in case the respective commission receives information from the competent state agencies that the candidate in question do not comply with the eligibility requirements (such as minimum age, nationality, minimum term of residence in Ukraine, active criminal record etc.). However, it does not establish a precise procedure and clear criteria for the verification of a candidate’s compliance with the eligibility requirements. The respective state agencies – the State Boarder Service, the Ministry of Interior, the Security Service – are given a significant discretion with respect to the verification of candidates' eligibility, which leaves them with a potential to abuse their powers by demonstrating bias for or against certain candidates. Some may be verified more thoroughly, while others would not be verified at all or paid less attention during the verification.

The Election Code should be amended to provide clear grounds, criteria, terms and procedure for verification of candidate’s compliance with eligibility requirements. Verifications should cover all the registered candidates and not be conducted selectively, only with respect to certain candidates.

The Election Code creates an advantage to the parties with established regional and local branches. In particular, the right to nominate councilors to rayon councils, as well as the village, settlement and city (in the cities subordinated to a rayon) councils and mayors and the respective, is granted to rayon party branches. If a party does not have any branch at the rayon level, it is not entitled to nominate candidates in any of the elections within the rayon. This provision would have an adverse effect on new political parties without well-established structures at sub-regional level.

The election Code should be amended to provide that, in the absence of party branches at the respective lower layer of governance, candidates at that layer can be nominated by higher-level party branches.

The amount of the electoral deposit for candidacy is excessive in some elections and may prevent parties and candidates with limited financial resources from running in the elections. In particular, a presidential candidate is required to pay an electoral deposit of 650 minimum monthly salaries, i.e. UAH 3,069,950 or USD 113,073. This is UAH 500,000 higher than the deposit set in the previous electoral legislation. A potential further increase of the minimum monthly salary by the Government could result in limiting the field of candidate in presidential races to those who are dependent on wealthy business interests.

In oblast council elections and in elections in the cities with no less than 90,000 voters, the size of the deposit to be paid by party or candidate is as high as 4 minimum monthly salaries per each 10,000 voters registered in the respective oblast or a city. Therefore, the electoral deposit in the elections to the Dnipropetrovsk, Lviv, Odesa and Kharkiv oblast councils, as well as to the Kyiv city council and for Kyiv mayor would be as high as 800 minimum monthly salaries (since each of these communities have 2,000,000 registered voters or more). Thus, the deposits to stand as candidate in these local election events are higher than in the presidential election or either the same or higher than in the parliamentary elections, in which parties are required to pay a deposit of 1,000 minimum monthly salaries.

The size of the deposit for presidential elections needs to be reduced to at least the previous level, i.e. UAH 2,500,000 or USD 92,081, while it should be reduced by five to ten times for oblast council elections and council elections in the cities with no less than 90,000 voters. As recommended by the OSCE/ODIHR and Venice Commission, it should be considered to return the deposit to parties and candidates who are not elected but secure a certain legally established number of votes.[2] Under the current provisions of the Code, deposits are returned only to the parties that passed the electoral threshold or candidates competing in the run-off.

The Code provides that candidates can withdrew from elections by a certain deadline before the elections. In presidential elections, a candidate can withdraw no later than 53 days before the first round, and within 12 days before a second round. This gives the participant of a second round race the discretion to withdraw in the “eleventh hour” thereby potentially derailing the second round election process, since not only will the candidate have to be replaced, but also the members on the election commissions appointed on the candidate’s nomination must be replaced.

The Election Code should be amended to exclude the possibility of withdrawal of presidential candidates before the run-off. The approach towards setting deadlines for withdrawal of candidates (either based on their own initiative or based on the party decision) in different elections should be unified, i.e. the deadline for withdrawal should, if practically possible, be the same in all elections.

Ensuring the rights of observers

One of the positive developments in the new Election Code is that it entitles accredited NGOs to register with the CEC up to two observers who are entitled to observe the elections at national level, i.e. in all MMCs, and be present at CEC meetings without prior invite or CEC consent. The rights of this category of observers are not specified in the Code, and the Code does not make any difference in status between the “national” NGO observers and NGO observers registered by DECs and deployed in the territorial election districts.

While the Code improved following the president’s veto, some restrictions were introduced that lessened the access of observers and imposed an administrative burden on them. Unknown at whose initiative, the provisions giving observers the right to be present at party congresses for nomination of candidates were removed from the final version of the Code despite this had not been addressed in the President’s veto to the Code. This reduces the transparency of the candidate nomination process. In a similar way, provisions were removed from the Code that granted authorized persons (including observers) the right to enter polling stations after 8 PM on election day and a provision inserted that introduces a requirement for NGOs to certify by notary certain documents needed for observer accreditation. The latter is an unnecessary requirement that puts an additional financial burden on NGOs and unnecessarily impedes access to non-partisan NGO observation.

The requirement whereby certain NGO documents required for observer accreditation must be certified by notaries should be lifted. The rights of the observers entitled to observe elections nationally should be clearly specified in the Code. The Code should clearly delineate the status of national observers and observers registered to observe the elections in territorial election districts. The role of NGOs in observing party congresses as well as vote counting at the polling stations should be strengthened.

Ensuring effective administration of the elections, facilitating CEC internal reforms and ensuring professionalism of the members of election commissions

Some deadlines for election-related preparations foreseen in the code are set too short and need to be extended as they do not allow the election commissions to take the necessary actions in time and/or in accordance with the requirements laid down in the Code. For instance, in the local elections the election process officially starts 50 days prior to elections. At the same time the multi-member constituencies in those elections must be established by the respective TECs within 2 days after the start of the election process, while the TECs themselves must be created within 48 and 42 days prior to the election day, depending on the type of the TEC. Hence, the TEC would be required to establish MMCs on the very same day they are established (i.e. on the same day when their members are appointed and potentially after the expiry of the deadline for creating MMCs).

The timelines for election-related preparations should be reviewed to give election commissions sufficient time to conduct the respective preparations.

The Election code does not provide for a unified approach to the establishment of election commissions which administer the nationwide and local elections. In a presidential election, there is no limitation on maximum composition of the DECs and PECs, and the overall number of election commissioners depend only on the number of nominated presidential candidates. In contrast, the Code sets a ceiling on the maximum number of the DEC and PEC commissioners in parliamentary elections. In parliamentary elections, commissions are formed based on nominations of political parties, including those with an establish parliamentary faction (each parliamentary party with faction may de facto nominate two commissioners). There are ongoing discussions in the Rada whether only parties should be entitled to suggest the commissioners, or this should be extended also to MP groups which are formed by individual MPs, who are not affiliated with a party, i.e. in non-partisan manner. It can be argued that the MP groups should not be given the right to nominate commission members as those groups do not nominate candidates for elections (i.e. MP groups are not election subjects, in contrast to parliamentary factions).

The procedure for establishment of the election commissions, as well as approach to limitation of the maximum composition of the DECs and PECs should be the same for all elections, where appropriate and possible. If representatives of parliamentary party factions are included into commissions, each faction should be represented by the same number of commissioners as any non-parliamentary party.

The Election Code provides for a complete renewal of PECs and DECs before run-off in the presidential election. In particular, each of the two presidential candidates on the ballot for the second-round vote can suggest an equal number of commissioners for each PEC and DEC before the second round, while the powers of all previous commissioners must be terminated. While such an approach has certain benefits, its key flaw is that it undermines the professionalism of the commissioners as the new appointees would be required to organize a run-off not necessarily having any election-related background. This provision is also vulnerable to the current potential that a second-round candidate may withdraw before run-off election day (see above).

A full renewal of the composition of all the PECs and DECs before run-off should be allowed only based on the exhaustive list of grounds and only if presidential candidate(s) suggested the required number of nominees to the respective commissions.

The Election Code entitles parties and candidates participating in elections to initiate replacement of the commissioners they appointed without any time restrictions for such replacements. Furthermore, the Code does not require mandatory training of election commissioners, neither before their appointment to the commission, nor after their appointment. Unrestricted replacements of the election commissioners with potentially untrained new commissioners have an adverse effect on professionalism of the commissioners and don’t contribute to a better administration of the election processes.

The Code should require mandatory training of election commissioners before they are appointed (including in between elections), specify a procedure for testing their skills and knowledge, as well as provide for certification of the commissioners who successfully completed training course(s). The CEC Training Center Code should play the key role in these processes.

The document flow within and between election commissions are not properly standardized and automatized. Many election commissions simply ignore the respective standards issued by the CEC, while the substance and form of commission decisions is at times not consistent with what is required by the law and CEC guidelines. Therefore, consideration should be given to a better standardization and unification of the document flow and the overall operations of the commissions, as well as to move towards more extensive use of IT in the daily work of the commissions. Some NGOs have already developed model program software that, if installed by commissions, would significantly automatize the document flow and operations of the commissions. In particularly, this would allow to create e-copies of the commission agendas, decisions and other documents based on templates created by software.

CEC needs to take further actions aimed to automatize document flow and operations of the election commissions through more extensive use of electronic technologies and innovations.

During preparations to the 2019 parliamentary and presidential elections CEC repeatedly faced difficulties with organizing and conducting of election-related procurement pursuant to the requirements of the Public Procurement Law. Given the short deadlines for certain actions related to preparations to the elections, it was not always possible for the CEC to respect the timeframes and procedures envisioned in the Public Procurement Law for procuring election-related goods, works and services. This issue was partially solved by the Ministry of Economic Development and Trade, which on June 7, 2019, issued a clarification for the CEC as to how election-related procurement must be conducted. Among other things, the Ministry allowed the CEC to split the bids to avoid procurement thresholds, to enter agreements with providers on uncompetitive basis (i.e. without observing lengthy procurement procedures provided for by the Public Procurement Law). It also specifically clarified that production of sensitive documents, such as ballot papers, is not a subject to competitive bidding and thus not covered by the procurement legal framework. These provisions, however, have been reflected neither in Public Procurement Law nor in the new Election Code. It could be therefore expected that the electoral administration will face the same issues while organizing election-related procurement as it faced in the previous elections in 2019.

The Public Procurement Law should be amended to allow the election administration to procure election-related goods, works and services within the narrow timeframes foreseen in the Code while duly respecting the basic principles of transparency and accountability laid down in the Public Procurement Law.

Independence of the CEC still needs to be strengthened. The Law on Central Election Commission, as amended by the Election Code, has yet to specify a procedure for how the President should consider CEC nominees proposed by party factions and MP groups before he/she submits the final slate of CEC candidates to the Rada for approval. The current Law envisages that all CEC commissioners can be dismissed ahead of terms on the initiative of the President and subject to approval by the parliament if supported by at least 300 MP votes. The provision was used twice in practice, in 2007 and 2019, and, in both cases, the early termination of powers of the CEC members was driven by political bias. This provision challenges the independence of the CEC.

The Law on Central Election Commission should determine how the President should consider CEC nominees proposed by party factions and MP groups before he/she submits the final slate of CEC candidates to the Rada for approval. The Law should also provide for an exhaustive list of grounds for early termination of powers of all the CEC commissioners.

The current CEC should be appraised for increasing the openness and transparency of the Commission. However, the current mechanisms to ensure transparency, accountability and inclusiveness of the Commission should be further strengthened.

The Law on Central Election Commission should include a provision mandating the establishment of the expert council under the CEC as an advisory body, The procedure for the selection and appointment of members of this council, its powers and the principles for its engagement in the activities of the Commission should also be regulated by law.

To enhance transparency of the CEC, the Law on Central Election Commission should provide for timely publication of its agendas, draft resolutions, dissenting opinions to the resolutions, meeting transcripts and other information, the access to which is not restricted by public information law. The Law should specify the list of issues subject to mandatory public consultation with stakeholder groups. All election-related information, wherever technically possible, should be published on the CEC website in open data format.

To ensure better communication between the CEC and stakeholders, the CEC needs to develop and approve its communication strategy, build up effective interaction with other state agencies (including the Accounting Chamber, the National Agency for Prevention of Corruption (NAPC), and the National Police), train its staff in charge of external communications in effective communication, provide assistance and advice to fellow citizens and other stakeholders on electoral matters, as well as to implement effective awareness campaigns in cooperation with the civil society.

As in many other European states, the electoral management body should be required to prepare and submit to the Parliament an annual report on its operations, that would ensure better accountability of the Commission and increase public trust in the institution.

The Law on Central election Commission should specify the requirements to the substance and format of the CEC annual reports, as well as establish deadlines for their submission. The Law on Central Election Commission should also provide for mandatory annual internal and external auditing of the CEC performance, as well as for needs and risks assessment.

While the CEC has already started to work on its long-term and short-term planning, this work should be completed by adopting a Strategic Plan for the entire term in office of the commissioners (i.e., 7 years) and annual plans for implementing the Strategic Plan.

The provisions in the Election code providing for the establishment of permanent regional and local CEC branches should be welcomed as decentralization constitutes an integral part of the institutional reform of the election administration, especially in a country of the size of Ukraine. Under the Law on Central Election Commission, the heads of the CEC branches at all levels of governance will be appointed and dismissed by the CEC Chair. This contradict the CEC’s own internal regulations on human resources as the heads of the CEC branches are senior public servants (categories “B” and “C” of civil service positions) and therefore must be appointed and dismissed by the Head of the CEC Secretariat. Their appointment and dismissal by the CEC Chair would lead to double subordination of the local branches to the Chair of the Commission and the Head of the CEC Secretariat.

If the respective provisions in the Code are not changed, either internal CEC regulations on human resources should be revised or the powers of the CEC Chair and Head of the CEC Secretariat with respect to coordination of the branches should be clearly delineated and specified. Consideration should also be given to requiring the selection of the heads of the branches in an open competition and to establish a selection panel comprising representatives of the CEC and civil society to ensure unbiased and non-politicized selection process.

The Law on Central Election Commission should provide that the heads and deputy heads of the CEC branches are appointed by the CEC Chair following an open and competitive selection process involving a selection panel with civil society representation. The heads of all other structural units of the CEC Secretariat should be appointed and dismissed by the Head of the CEC Secretariat.

State Budget Law should provide for allocation of sufficient funding to the CEC, so that the CEC could establish its branches at the regional and local levels in 2020 and branches could begin operations later this year. Mandates, powers and the principles of interaction between the CEC branches, election commissions and other stakeholders should be clearly specified in the Law on Central Election Commission as well as in the CEC regulations.

Improving election campaigning procedures

Despite a few positive developments such as introduction of a new definition of “political advertising” in the Law on Advertising, the election campaigning is regulated much worse in the final version of the Code compared to the initial version as vetoed by President. In particular, the provisions governing election campaigning on the Internet and in social media were removed entirely from the final text of the Code without public consultation.

The current legal provisions in the Code governing election campaigning should be replaced by the previous provisions on election campaigning that were included into the initial version of the Code following consultation with relevant stakeholders. The current provision of the Code that specifically states that media licenses/publishing printed outlets cannot be suspended for the entire election process in case when the respective media committed a grave campaigning-related offence should, however, be maintained in the Code.

In contrast to many European states, the Election Code does not allow media to refuse to publish a reply to information which party or candidate consider untruthful. A medium must publish such a reply to the allegedly untruthful information even if the information was true. This requirement has been repeatedly criticized by the Venice Commission and OSCE/ODIHR, as well as election observation missions. The Election Code should be amended to specify the list of grounds based on which media can refuse to publish a reply to information which party or candidate claim to be untruthful.

The National Broadcasting Company (NBC) monitors the operations of audiovisual media and information agencies and may now use monitoring reports of the NGOs accredited to observe the elections as one of the sources of information. However, the regulatory and supervisory powers of the NBC as regards the elections are not properly specified neither in the Election Code nor in the laws governing broadcasting. This creates preconditions for selective prosecution of the media or inaction with respect to violations committed by the media from the side of the regulator.

The system of sanctions for violations of provisions governing information coverage of elections and election campaigning in the media can hardly be considered proportionate, effective and dissuasive. While NBC has an oversight mandate to supervise audiovisual media, it lacks the independence, and organizational resources to exercises its powers by effectively. This is exacerbated by the potential (and widely perceived) conflict of interest of many current NBC members, who in the past had close ties with broadcasting companies/businesses.

To ensure effectiveness of the NBC as a media regulator would require strengthening its institutional capacity, among others, by amending the constitutional provisions governing the appointment and dismissal of the NBC members, adequate regulations for declaring conflict of interest; defining the scope of powers of the NBC in the election process; and establishing the principles for its relations with the CEC, the NAPC and other agencies engaged into the election process.

The Code of Administrative Offences and the laws on media should be amended to provide for proportionate, effective and dissuasive sanctions for violations of the rules governing election campaigning and media coverage of elections.

The Verkhovna Rada, the CEC and other state agencies should conduct comprehensive consultations to determine a framework for the regulation of new means of communication used by parties and candidates for conveying their election campaign messages to voters. The data on campaigning through online platforms should be transparent and accessible. The “Library of political advertising” on a Facebook can be used as a good example of how political campaigning can be monitored.

Enhancing transparency of party and campaign finance and preventing excessive funding of political parties and election campaigns

In 2015, the Parliament adopted the Political Finance Reform Law that introduced significant changes into regulation of political and campaign finance in Ukraine. Among other things, the 2015 Law introduced annual public funding of political parties whose party lists received no less than 2 percent of the valid votes cast under the proportional system in the most recent parliamentary elections.[3] It also established a number of restrictions on the value and sources of private donations to political parties, required political parties to file quarterly financial reports to the National Agency for Prevention of Corruption (NAPC), and mandated the NAPC to review the received financial reports. The Law also introduced amendments to the Criminal Code and code of Administrative Offences to establish a system of sanctions for violation of political and campaign finance rules.

For a long time, the legal provisions governing campaign finance in the local elections had not been harmonized with Political Finance Reform Law since the 2015 Local Election Law was adopted before Political Finance Reform Law and therefore failed to incorporate the new rules established by the latter law. The new Election Code brought the rules governing election campaigning in all the elections in compliance with the Political Finance Reform Law. However, in December 2019, after the Election Code had already been promulgated, the Rada adopted amendments to the Political Party Law. These amendments significantly changed the rules governing political finance in Ukraine.

In particular, the December 2019 amendments to the Political Party Law provided for the establishment of the electronic party financial reporting system through which parties would be able to enter data on their property, incomes, expenses and financial obligations electronically. Hitherto, parties have submitted such reports in paper format. The amendments also set detailed requirements to the content and structure of party financial reports and remove a number of restrictions on the procedure and sources for making private donations to political parties. The 2015 Political Finance Reform Law required political parties to present in their financial reports not only the information on party headquarter finances, but also information about the finances of all party branches with a legal entity status and of all the candidates nominated for the national and local elections. The 2019 amendments, in contrast, do no longer require parties to include in their financial reporting information about receipt and use of election funds by candidates nominated by party or its regional and/or local branches. The amendments also simplified the procedure for making a private donation to a political party: while under previous legal framework private donations could only be made by a donor in person through the bank, the amendments allows using online electronic payment systems for making donations, providing that such systems can verify the identity of the donor.

All the above new provisions in the Political Party Law have not been included into the Election Code. The Code still provides that private donations to election funds of parties and candidates can be made only through banks in a complicated process requiring the donor to appear in person in the bank. Before making any donation, even a small one, a donor must sign a statement of compliance with restrictions imposed by the Political Party Law on permissible donors.

The requirements to the content and format of the party financial reports are different from those which apply to campaign finance reporting during the elections. Despite the fact that parties will submit their financial reports electronically once the e-reporting system is launched, candidates will still need to file paper reports with respective the election commission or CEC branch, depending on the type of election. The differences in reporting formats (paper vs. electronic) does not allow to promptly incorporate campaign finance reports of party-affiliated candidates and local party branches into the party reporting.

The provisions of the Election Code governing campaign finance; the procedure for making donations to campaign funds; requirements to the format, content and for filing campaign finance reports should be harmonized with the respective provisions of the Political Party Law as amended in December 2019.

While the Code provides for the establishment of a Unified State Register of campaign finance reports, it fails to specify how it is established, who is the custodian of the registry, how the information from the registry will be used, how, by whom and by which deadlines the campaign finance reports on paper would be entered into the electronic register. In addition to that, it remains an open question why there is a need to establish two separate and not integrated registers – one for party financial reports and one for campaign finance reports.

The Political Party Law and Election Code should be amended to provide for the establishment of a Unified State Register of party and candidate financial reports which would integrate party quarterly reporting and party/candidate reporting on campaign finance. All the reports should be compiled and filed by the parties and candidates using register software. The register needs to be connected to other public registers to allow for automatized verification of all data included into the reports. The NAPC should be given sufficient time (i.e. no less than one year) to create, pilot test and fully launch the register. Parties and candidates should be required to file all their financial reports electronically once the register is launched.

Under the Election Code, several types of institutions are in charge of reviewing campaign finance reports in national and local elections: the CEC reviews financial reports filed by the presidential candidates and political parties running in the parliamentary elections, CEC regional branches review reports filed by candidates in parliamentary elections, and Territorial Election Commissions review reports filed by parties and candidates in local elections. In addition, the NAPC is in charge of overall political finance oversight, including campaign finance. The current legal framework fails to clearly delineate the powers of NAPC and the respective election commissions/CEC branches with respect to political finance and campaign finance oversight, thus posing a risk of duplication, as well as of selective or ineffective enforcement. The lack of clear mandates decreases the overall effectiveness of the campaign finance oversight system.

If in the mid- or long-term political finance oversight powers are vested jointly with the NAPC, election commissions and CEC branches, the law should clearly specify the scope of responsibilities of each of the institution involved.

According to the Code, financial reports of parties and candidates in local elections are reviewed by the TECs. However, the capacity of TECs to conduct effective oversight casts doubts given the political nature of the TECs. TECs are composed of members nominated by political actors; the nominating party or presidential candidate can terminate the powers of TEC commissioners at any time and replace them with commissioners who – in particular, at the basic level of villages/settlements/small town – may lack the required skills to perform this oversight in a professional manner. Besides, TECs will administer numerous election processes at a time potentially with a high number of candidates and will have to deal with the administrative burden this create within the narrow timelines of local elections.

Once the Unified State Register of party and candidate financial reports is installed and the CEC territorial branches are established, the primary responsibility for verification of campaign finance reports should be vested in the CEC local branches (in particular, if these are established at the rayon and city layers of local self-governance).

Despite certain welcome changes in regulation of political and campaign finance over the past years, there is still a room for improvements in this area. In particular, the current legal framework does not effectively regulate “third party” donations to political parties (i.e. donations made directly by persons not affiliated with any political party on behalf of a party, at such persons’ own expense). Neither does it provide for a clear definition of donation in-kind or explain how the value of such donation must be calculated. The absence of clear definitions and a procedure for calculation of the value of donation in-kind does not contribute to enhancing the transparency of party and campaign finance. The existing laws governing political finance also do not foresee any effective mechanisms to prevent excessive funding of election campaigns for instance – as done in numerous European countries – by establishing campaign spending limits or banning paid political advertising on TV and/or radio during elections.

The legal framework governing political and campaign finance should address the pending recommendations of the Group of States Against Corruption (GRECO), OSCE/ODIHR and Venice Commission related to enhancing transparency of political finance and preventing excessive funding of election campaigns. In this regard, the Election Code should be amended to limit (or to entirely prohibit) paid political advertising on radio and/or TV during the elections.

Strengthening the system of effective and independent political and campaign finance oversight, as well as launching electronic financial reporting system would require that the Government supported by international donors further strengthen the organizational, human and financial capacity of the NAPC by allocating funds for the respective purposes.

Duplication of powers among the agencies involved into campaign finance oversight (NAPC, election commissions, Accounting Chamber) remains a risk. The Political Party Law and the Election Code should clearly specify the mandates of the campaign finance oversight institutions.

The system of sanctions for political and campaign finance infringements does not comply with the principles of proportionality, effectiveness and dissuasiveness. Furthermore, the short statutes of limitations and the ineffective procedure for documenting administrative offences in this area do not always allow to bring those who committed offences to account.

The amendments to the Criminal Code and the Code of Administrative Offences should define a system of proportionate, effective and dissuasive sanctions for campaign finance violations, and the procedure for documenting administrative political finance offences and statutes of limitations should effectively address impunity surrounding political and campaign finance offences.

In addition, consideration should be given to publishing detailed and comprehensive information on all transactions incurred on the election fund accounts of political parties and candidates in elections in real time, without any significant delays. This information can be posted on a Unified web-portal of public expenses (www.spending.gov.ua), on the CEC website or even on the websites of the banks, in which the campaign fund accounts are opened. This would allow all those with a vested interest in transparency of campaign finance regulations and practice to monitor the expenses and to verify that the campaign finance reports are consistent with the data presented.

Improving voter registration and maintenance of the State Voter Register

Simplification of the procedure for changing voter’s address is one of the key improvements introduced by the Code. It would allow to properly ensure that internally displaced persons (IDPs) and economic migrants, whose domicile registration is different from their actual place of residence can exercise their electoral rights and vote in all elections including local elections.

According to Article 20 of the Law on State Register of Voters (as amended by the Election Code), each voter can file an application for changing his/her voter address from the address of the registered place of residence to the address which coincides with his/her factual residence. The voter musts do so no later than within five days following the start of the election process in national or local elections. Such application must be substantiated by certain documents confirming the factual place of residence of the voter in question. These documents include, in particular, a contract of renting a residence, a document confirming that the voter conducts business activities at the place of factual residence, a document confirming proprietary rights on the residence, IDP certificate etc. The list of these documents is exhaustive. However, not all IDPs necessarily have any of the above documents that may make it difficult for them to change the voter’s address.

The list of documents based on which a voter can change his/her voter’s address should be supplemented by court decisions which establish the factual place of residence of a citizen under the civil court or administrative adjudication procedures. As court practice demonstrates, a factual place of residence of citizen can be established based on a wide list of evidence, including witness testimonies, facility bills, and other documents which can serve the evidence that the person in question is actually residing at his/her factual address.

While the overall quality of administrating and maintaining the State Register of Voters (SRV) has significantly improved since its launch in 2009, observers still continue to identify cases of inaccuracies in voter registration data, which have not been fixed during several election cycles. Some voters who had passed away many years ago at times remain on voter lists for several elections in a row. Voter registration data on voters residing abroad or in non-government controlled territories of Ukraine are not always reliable etc. In particular, some separatist leaders from non-government controlled areas of Donetsk and Luhansk oblasts who have been assassinated are still on the SRV. While the fact that they are dead is well-known, this fact is not legally established.

The procedure for registration of a citizen’s place of residence has been decentralized; a citizen’s place of residence is now registered the local self-governance body whose jurisdiction covers the territory in which citizen resides). However, the new civil registration bodies – local self-government bodies – often fail to effectively exercise their powers related to civil registration and do not deliver timely, accurate and complete data on changes in the place of residence/new registrations to the State Migration Service and other agencies. This means that data on changes in electoral addresses of the voters are updated in the SRV database with significant delays or are not updated at all, which affects the overall quality and accuracy/relevance of the SRV data and can make it difficult for voter to exercise his/her electoral rights.

The Election Code should provide for a procedure that allow for an exchange of data on voters between the election commissions and voter registration bodies on Election Day, including after the end of voting; in particular, it should explain how the election commissions must handle voters’ complaints related to inaccuracies on the updated voter lists (such as the presence of dead voters/voters who do not have the right to vote on the lists etc.), even if such complaints were submitted to the commission after the legally established deadline.

The Law on State Register of Voters should specify the procedure for exchanging information on the voters residing abroad between the CEC and the relevant authorities of the foreign states. If a voter can be assumed dead beyond the reasonable doubts, he/she should be marked as such in SRV database and his/her inclusion on the voter list in the national or local elections should be frozen.

The legal framework should strengthen the system of sanctions for late delivery/delivery of incomplete or inaccurate data on civil residence status.

If civil registration issues continue to be handled by the local self-governance bodies, these bodies need to be provided sufficient organizational, human and financial resources to timely deliver civil registration data and related updates to state bodies, including the State Migration Service and the CEC.

In the mid-term, consideration should be given to replacing the permission based “propiska” system with a declarative system, whereby a citizen can simply inform the relevant public authority on his/her factual residence. Civic registration reform would require adoption of a separate law aimed to bring the civil registration system in compliance with European standards and best practices in this area.

The Law on State Register of Voters and related by-laws provide for the transparency of the SRV including the possibility for voters to verify voter registration data themselves, to file requests for corrections or updates on behalf of other voters, as well as to access registration data through “e-office” on the SRV website). However, the existing SRV transparency instruments could be strengthened.

In particular, the Law on State Register of Voters should provide parliamentary parties and presidential candidates with sufficient access to assess the accuracy and completeness of the SRV database while exercising public scrutiny over voter registration in respect of personal data protection clauses (in this regard, they should be given a sufficient number of e-copies of the SRV database to promptly verify the SRV accuracy).

The CEC needs to ensure that the SRV statistical data can be sorted out and summarized by various parameters (for instance, by the number of voters registered at the same address/same building, by time period, by the number of voters with disabilities per polling station etc.). Within the framework of ongoing digitalization policy, data exchange between the SRV and other public registers should be fully automatized to exclude human mistakes while updating the data.

Since the SRV has become fully operational in 2009, it has not been audited by an independent auditor. Such audit would allow to assess not only the effectiveness of the current voter registration procedures, but also the level of protection of the SRV database from external and other unauthorized interference, the effectiveness of coordination and interaction between the Voter Register Maintenance bodies (RMBs), regional SRV administrators and state agencies providing the SRV with necessary data, and the effectiveness of overall management system in charge of maintaining/administering the SRV.

The Law on State Register of Voters should be amended to provide for mandatory auditing of SRV on a regular basis by independent auditors, to specify the subject, the timelines and procedures for such audits, as well as to introduce mandatory publication of the auditing results. In particular, the SRV audits need to include: 1) review of the legal framework governing voter/citizen registration; 2) internal analysis of the SRV (accuracy, completeness and validity of the voter registration details) and 3) review of the SRV system and related processes (including review of the procedure for recruitment and operations of the registration personnel, review of voter registration processes, quality assurance and validation processes, database controls and maintenance, security of data and underlying infrastructure, segregation of duties between various agencies/servants involved into voter registration etc.). The terms of reference for SRV audits should be subject of public consultation.

Ensuring effective prosecution of election-related violations and effective election dispute resolution

The system of sanctions for election-related offences does not comply with the principles of proportionality, effectiveness and dissuasiveness, while for some violations defined as such the electoral legal framework fail to envisage any sanctions. These flaws result in impunity for election-related offences among the electoral stakeholders, have an adverse effect on the investigation of the alleged offences, and undermine overall voter confidence in elections. To address these issues, the Ministry of Interior in close cooperation with OPORA Civic Network and other stakeholders prepared a draft Law (known as the draft law No 8270 or the electoral justice package) that was registered but never considered in the previous convocation of Parliament. Draft Law No 8270 provided for amendments to the Criminal Code, the Code of Administrative Offences and other relevant laws to strengthen the system of sanctions for electoral crimes and offences, as well as to specify a list of offences that are subject to sanctions.

The draft Law No 8270 should be re-registered in the current Rada with the aim to adopt it into law before the 2020 local elections. The draft law should be updated to reflect lessons learned from the 2019 presidential and parliamentary elections and newly introduced provisions in the Election Code.

During 2019 parliamentary and presidential elections, the Ministry of Interior, National Police and OPORA Civic Network with IFES technical assistance delivered a series of training to the police on their roles in elections, as well as on how to respond to different offences committed during the election period, including on Election Day. Each police officer on duty at a polling station on the Election Day received a pocket handbook with guidance on the same issues as covered during the training delivered before the elections. Both the training exercise and the pocket handbooks received a positive assessment from international observers and contributed to keeping the elections in line with democratic standards. Following lessons learned session from both electoral events, the National Police piloted specific police-oriented training courses on electoral issues to strengthen the level of knowledge and skills of the police officers on the subject.

Training of police officers on electoral matters should continue on a rolling basis in between the elections. The training should cover as many police officers as possible so that overall capacity of the police to prevent, detect, and prosecute election-related offences is significantly increased.

The Ministry of Internal Affairs should continue publishing statistical data on detected electoral offence that include information on types of offenses, measures taken to investigate and prosecute each offence, and the outcomes of the undertaken actions. Such information should be available to public not only before the elections, but also after the elections and should be published in open data format. The practice of delivering training to the police on electoral matters should continue in future nationwide elections. There is a need in launching a training program on electoral matters for public prosecutors and judges in charge of criminal and administrative prosecution of the offenders.

The new Election Code introduced significant changes to the election dispute resolution procedures. Election commissions will in the future resolve only one category of disputes, i.e. complaints against decisions, actions or inaction of the lower-level commissions. The CEC will review complaints only against inaction of the DECs and those TECs which are in charge of establishing local election results. All other violations can be challenged only to the courts pursuant to the Code of Administrative Adjudication.

The procedure for how election commissions review complaints has not been significantly changed. Election commissions are still able to reject complaints without considering them on their merits if the formal requirements to a complaint is violated, as was the case in the previous elections. The practice of rejecting complaints on formalistic grounds has been repeatedly criticized by international observer missions. One of the key novelties in the Code was to reduce the deadline for filing a complaint to the relevant election commission – under the previous legal framework a complainant had five days from the day of the alleged violation (i.e. the illegal decision/action/inaction) to file complaint, while under the Code set a two-day deadline. Reducing the deadline for filing complaints to election commissions from five to two days is a negative development as complainants would likely not have sufficient time to collect evidence and prepare the complaint.

The Code should be amended to extend the deadline for filing complaints to election commissions from two to five days; the election commissions should also be able – and required – to consider complaints on their merits even if the complaint has technical defects but despite those defects the commission is able to detect, verify and prosecute the alleged election violation based on the evidence provided by the complainant.

The CEC should launch an electronic complaint management system. It should make comprehensive data on complaints and outcomes of their consideration public on a regular basis, as well as summarize its legal opinions on various electoral matters.

The Code of Administrative Adjudication should be harmonized with the provisions laid down in the Election Code

Courts are likely to be overloaded with election cases due to the transfer of most election disputes to the courts combined with the significant changes in the election systems and the election procedures in the new Code.

The National School of Judges should continue training the judges on election dispute resolution issues during the next elections.

The Supreme Court and National School of Judges should play more active role in summarizing court legal opinions on various aspects of material and procedural election law, as well as continue publishing guidelines for judges on election dispute resolution.

More active use of IT in elections without shifting to Internet voting

Within the framework of ongoing digitalization of administrative procedures and overall governance system in Ukraine, experts and politicians discuss the possibility of shifting to Internet voting in elections and referendums. One of the options is avail the possibility of e-voting to voters registered abroad. Another approach under debate is to avail all voters the possibility to vote online. In regard to the latter option one can express a number of serious concerns. Pilot testing and practical use of e-voting in the European democracies indicate that many citizens do not have confidence that their vote is secret in e-voting. E-voting also poses a number of risks that currently counterweight the positives of e-voting. These include the risks of tampering or manipulation with the system. While a number of countries such as the Netherlands, Ireland, Germany, and the UK have experience with e-voting, the only European state that continues to use e-voting is Estonia. Other countries have refused to introduce e-voting broadly. While some argue that e-voting contributes to mobilize voter and increase the turnout due to convenience of the procedure to voters, research studies actually prove that it has no particular impact on voter turnout.

Venice Commission Code of Good Practice in Electoral Matters recommends that electronic voting methods must be secure and reliable. They are secure if the system can withstand deliberate attack and can function on their own, irrespective of any shortcomings in the hardware or software. Furthermore, the elector must be able to obtain a confirmation of his or her vote and, if necessary, correct it without the secrecy of the ballot being in any way violated. In addition to that, the system’s transparency must be guaranteed in the sense that it must be possible to check that it is functioning properly.

While the COVIC-19 pandemic crisis may increase the demand for the examination of remote voting options, there would have to be significant testing, investment, training and cybersecurity in place to make this possible. This would likely take years and high levels of funding to develop.

Other risks also need to be carefully assessed. Vote-buying schemes remain an issue in Ukrainian elections and also E-voting is prone to the risks of vote-buying. Interference in Ukraine’s electronic systems have occurred in the past so security risks remain pronounced. Another factor to consider is that the level of public confidence in the state institutions remains low. All these facts indicate that shifting to e-voting in Ukraine is a pre-mature step. At the same time, if funding allows, Ukraine may be able to move forward on the introduction of other technologies that allow for interaction online, such as registration efforts or the introduction of a new results management system.

Providing a possibility of exercising voter rights through e-voting to some categories of voters and not to other, for instance, to voters residing abroad, would be inconsistent with the principle of equal suffrage as all citizens should be given the same possibilities to exercise their electoral rights without discrimination based on the place of residence.

Even if a political decision to shift to Internet voting is made, a practical implementation of such decision should be preceded by a number of important steps: 1) e-voting hardware should be procured through transparent procurement procedure; such equipment should be properly tested to identify the level of its reliability and protection from unauthorized interference with its operations; the equipment should be certified; 2) e-voting should be pilot tested, for instance, in local community elections, before being rolled out broadly; 3) no broad launch of e-voting should be possible without pilot testing and comprehensive independent assessment of the testing results; and 4) before the broad launch, the government should also deliver a voter awareness campaign on e-voting procedure, the procedure of vote counting and establishment of the election results through e-platform.

Compared to the previous legal framework, the Election Code provides for more extensive use of IT in elections, in particular, with regard to voter registration and updating voter records in the State Register of Voters. it now provides for the possibility to submit applications to the State Register Maintenance bodies in electronic format.

The use of IT in elections should further be extended, in particular, by allowing for electronic submission of other election-related documents certified by electronic signatures, such as nominations of the commissioners, electoral complaints, candidate registration documents; by enabling submission of the vote counting protocols from the PECs to the CEC through the “Vybory” system or via email; by machine scanning of the ballots to accelerate vote counting at the polling stations; by using IT in the document flow and overall operations of TECs/DECs (with the prospect of expanding the use of IT in related processes also to the PEC level in a mid- or long-term); and by creating online service platforms and other online instruments to deliver election-related information to the voters and other stakeholders.

Ensuring accessibility of elections to voters with disabilities

The Election Code envisages a number of instruments aimed to ensure better accessibility of elections to voters with disabilities. In particular, it introduces mandatory auditing of the accessibility of polling station premises; it requires local authorities to ensure accessibility of polling stations if they do not meet the accessibility standards; it provides for use of accessible formats while placing election-related information on the CEC website and while conducting election campaigning, covering election events in media and printing election posters on parties and candidates to be placed at each polling station. However, the Code includes certain discriminatory provisions. First and foremost, this concerns provisions providing for mandatory inclusion of the voters with permanent disabilities into the excerpts of the voter lists for a homebound voting. Other instruments foreseen in the Code to ensure accessibility of the elections are to formulate too vaguely to be effectively applied and need to be specified.

Discriminatory provisions whereby voters with permanent disabilities are marked as such in the SRV database and are included into the excerpts of voter lists for voting at voters’ place of stay (homebound voting) without their prior consent for such inclusion should be removed from the Election Code. The provisions related to use of the accessible formats should be further strengthened. CEC, in cooperation with other public authorities, should finalize the audit of polling stations for their accessibility before the beginning of the 2020 local election process. Local self-governance bodies should take necessary steps to ensure that polling stations are accessible for independent access for voters with disabilities and other categories of voters with limited moving capacity. These categories of voters should be able to file electronic applications to RMBs (directly or through the SRV online platform) requesting availability of specific accessibility instruments to simplify the exercise of their right to vote. CEC should continue dialogue with disable persons organizations to increase the level of accessibility of the election procedures to voters with disabilities.

Ensuring active women participation in electoral processes

The Election Code has created preconditions for women’s more active inclusion in the election processes. It establishes mandatory gender quotas under all electoral systems used to elect collegial representational bodies and envisages sanctions for failure to comply with the quota requirements, such as rejection of the party lists in parliamentary and local elections. Open list proportional systems are as such not conducive to increase women representation in elected office, while closed list proportional systems are. Given that the open list proportional system contains many elements of the closed list proportional system, the actual share of women in the future parliament, as well as oblast and city councils in the cities with no less than 90,000 voters is likely to increase to 30-40 percent of the composition of the parliament or respective council.

Under the current system of annual public funding of political parties, 10 percent of the total amount of public funding annually available to the parties qualifying for public funding is allocated to those parties which secure no less than one-third of women from the total number of MPs elected from the party. The earmarked funding is divided equally between the parties that ensured election of the required number of women MPs. Thus, it can be expected that all parties who enters parliament in future elections will meet the 1/3 women requirement, and thus – render this incentive meaningless.

The eligibility threshold to qualify for additional funding should increase from the current one-third of elected women MPs to 50 percent of elected women MPs. Consideration should be given to amending the Political Party Law with provision explicitly stating that the earmarked gender funding should be spent on party activities related to gender issues and political engagement of women. The Political Party Law should be amended to require political parties to include into their statute provisions establishing a minimum level of women representation in the party’s governing bodies. Given that time remaining to 2020 local elections is limited, parties should take immediate actions to more actively engage women in political life and election processes.

Developing other forms of direct democracy

The 2012 National Referendum Law was recognized unconstitutional by the Constitutional Court in 2018. Due to that decision, both national and local referendums are no longer regulated by the legal framework. This legal vacuum is inconsistent with the constitutional provisions that allow citizens to exercise power directly, through elections and referendums. It also makes it impossible to amend three chapters of the Constitution (basic principles, elections and constitutional review) as such changes must be finally approved in a national referendum which is currently impossible to hold. To address this issue, the Parliament has established a working group tasked to elaborate new referendum legislation. The group has so far prepared a draft National Referendum Law which is expected to undergo public consultations and be formally registered in the Rada.

Once the new draft National Referendum Law is discussed with the key stakeholders and registered, the Rada should proceed to adopt it into law. The new National Referendum Law should clearly specify what can be subject of a national referendum and harmonize the key referendum procedures with the similar election procedures under the Election Code to the highest extent possible. The new law should comply with the standards specified in the Venice Commission Code of Good Practice in Referendum matters, in particular ensure that parliament have to be previously engaged before constitutional amendments re made/introduced. The new Law should ensure transparency of referendum campaign finance and require supporters and opponents of the referendum questions to submit detailed financial reports on referendum-related incomes and expenses. NGOs should be allowed to register/accredit as supporters or opponents to the issues to be decided by national referendum, as well as to observe referendum if they are not directly involved into the referendum campaign.

While working on the new draft Local Referendum Law, the Rada needs to seriously consider mechanisms aimed to prevent separatism at the local level and reduce the possibility of initiating local referendums on issues of national policy which do not fall within the competence of local self-governance.

This document was developed jointly by International Foundation for Electoral Systems (IFES) and Civil Network OPORA and made possible with funding from the United States Agency for International Development (USAID), Global Affairs Canada, and UK aid. The opinions expressed herein are those of the authors and do not necessarily reflect the views of USAID, nor the governments of the United States, Canada, or the UK.

[1] The electoral quota is calculated by dividing the number of votes cast for all parties that passed the electoral threshold nationally (for parliamentary election) or within the oblast or city (in local elections) by the number of seats in the Rada or respective council

[2] The recommended approach was reflected in the initial version of the Code submitted to the President in September 2019, but on his initiative removed from the final version of the Code.

[3] In 2019 the Law was amended to increase this threshold from two to five percent of the votes cast in the nationwide election district.