Civil Network OPORA interim report based on nonpartisannt local election observation before the second round on November, 15

Summary

The process of establishing voting results and the results of the local elections of October 20, 2020, being predictably long-running and not entirely transparent, has provoked excessive suspicion and sometimes reasonable criticism of the election administration bodies on the part of various election participants and voters, too. As of November 12, territorial election commissions established the results of almost all local elections, with the exception of certain local councils where the cases of electoral abuse and procedural violations were recorded. However, the lack of prompt, comprehensive and generalized information on the progress and results of the count has basically given rise to doubts regarding the integrity of the process, even in the absence of clear grounds for such conclusions. The responsibility and position of the CEC is crucial in such cases, however, its role and powers in these conditions are limited in the context of the effective system of local elections administration. Obviously, the system of collecting, processing, transmitting and publishing public electoral data needs to be revised and reformed with due regard to the negative experience of this election campaign and based on the results of a broad expert discussion.

According to OPORA observers’ assessment, the effectiveness of anti-epidemic measures remains at a low level at various stages of the electoral process, even where targeted recommendations and regulatory requirements have been developed to create appropriate conditions for the safe organization and conduct of the re-run vote in local elections. Shared responsibility of election organizers and public administrations at various levels and compliance with their commitment to ensure voter safety is a key guarantee for the exercise of electoral rights by the citizens in the context of COVID-19 spread.

The pre-election activity of the candidates for local mayors who reran on November 15 in seven cities of Ukraine is characterized by a significantly less intensive campaigning as compared to the previous stages of the campaign. This is due to the short timeframe of the electoral process, a decrease in the number of formal participants in the electoral competition, and a change in campaigning approaches in this context. The use of the internet and social networks remains the most popular form of campaigning, being often accompanied by black PR and misinformation of voters amid increased political confrontation between the candidates and their supporters. The role of covert campaigning in national media, in particular on leading national channels, has significantly increased, demonstrating the problem of unequal access of candidates to the media and non-transparency of the campaign budgets. Overall, the activity of political parties and candidates in social networks has significantly decreased after the voting day. Within two weeks, more than 4,000 advertising messages worth around USD 144,000 were posted on Facebook.

A special feature of all local electoral processes for re-voting is the active participation in the campaign of the parties and politicians who, though not being election participants, demonstrate commitment or support to one candidate and resort to direct criticism and propaganda against their opponents. Such actions are an element of democratic practices only unless they intend to deliberately provoke conflicts and polarize voters.

In the absence of obvious or repeated violations of the electoral legislation on the part of the candidates and parties participating at the second round, the problem of abuse of administrative resources, which falls within the scope of violation of international democratic standards, remains relevant. The incumbent mayors are active participants in the elections, and most of them continue to covertly use their status and powers for campaigning purposes.

The work of the territorial and precinct election commissions on preparing and conducting the repeat vote on November 15 has sometimes seen the commissions violating the legal deadlines for implementing electoral procedures (in particular, printing and transferring the ballots), but in general it was quite professional and well-organized. The impact of the COVID-19 epidemic on the reduction of the number of election commissions, combined with mass replacement of the commission members by the entities that nominated them, may cause destabilization of the commission work at the stage of vote counting and establishing voting results. Conflicts and headline-making incidents during the establishment of voting results on October 25 expose vulnerability of the election commission members to unlawful influence on the part of political actors and point to the need for a comprehensive reform of the election administration system.

The 2020 local election campaigns have faced an inefficient system of election funds reporting and the absence of proper oversight by the territorial election commissions that lacked the necessary competence and practical skills to analyze the interim and final reports of the election fund managers, despite the respective responsibilities entrusted upon them.

Assessment of the process of determination of vote returns in 2020 local elections

OPORA’s observers monitored the process of determination of vote returns in local elections held on October 25, 2020. The Electoral Code places TECs under an obligation to certify the results of elections in the corresponding territorial constituencies no later than within nine days after the election day (on or before November 3, 2020), while the results of elections in national single-member and multi-member constituencies must be certified no later than within twelve days after the election day (on or before November 6, 2020). Immediately after being certified by TECs, the data on election results must be transferred to the Central Election Commission for further publication on the website of the CEC. Therefore, the TECs bear full responsibility for determining the results of local elections, while the role of the CEC is limited to responding to violations committed by TECs, handling complaints from electoral subjects and publishing the election results on its official website.

As of November 12, the official website of the CEC confirmed the receipt of data on the results of elections of 1,406 out of 1,577 deputies to local councils (or 89% of the total number). On the same day, the CEC announced that the TECs have already certified the results of elections of 1,566 out of 1,577 deputies to local councils (99% of the total number). Furthermore, the CEC published the results of elections in 1,394 out of 1,421 territorial communities (98%) on its official website, while the TECs have already certified the results of elections in 1,415 territorial communities.

In 18 cities comprising more than 75 thousand voters the TECs adopted a decision to hold the second round of local elections with the participation of two candidates who received the largest number of votes in the first round of elections held on October 25, 2020.

In 6 cities comprising more than 75,000 voters (Kamianets-Podilskyi, Kramatorsk, Lutsk, Odesa, Sumy, Kherson) the TECs scheduled the second round of elections for November 15 within three weeks after the adoption of corresponding decisions. On the same day, the repeat election of mayor will take place in the city of Ukrainka (Kyiv oblast) comprising less than 75,000 voters, since the top two candidates received the same number of votes. On November 22, the second round of mayoral elections will be held in 11 cities (Berdyansk, Dnipro, Drohobych, Lviv, Mykolayiv, Nikopol, Poltava, Rivne, Slovyansk, Uzhhorod, Cherkasy). It took until November 12 for Chernivtsi city TEC to schedule the second round of mayoral election for November 29, which constitutes a breach of statutory time limits. The date of the second round of mayoral election in Kryvyi Rih remains uncertain due to ongoing legal proceedings. In Brovary, the decision to schedule the second round of mayoral election for November 22 was overruled by the court. The election in this city may be declared invalid, in which case the TEC will call a repeat election. The plaintiff provided evidence of placement of identical unique numbers on the control slip and the ballot paper (a simple comparison of the two numbers could lead to violation of the secrecy of vote). The validity of this evidence was confirmed by the court.

Violation of the procedure for certifying the election results triggered fierce public debates and conflict situations in several oblasts and territorial communities. On November 11, 2020, Secretary of the National Security and Defense Council of Ukraine Oleksiy Danilov approached the chairman of the CEC Oleh Didenko with a letter of demand for urgent measures aimed at certifying the results of local elections held on October 25, 2020, and publishing them on the website of the CEC without further delay. The letter stated that the Office of the National Security and Defense Council noted the growth of social tension and evolution of national security threats due to the lack of publicly available information about official election results.

During the course of determination of local election results OPORA’s observers recorded cases of breach of statutory time limits, incidents bearing the marks of election fraud, manifestations of unstable and politically biased activity of TEC members. In some cases, the situation demanded direct intervention from the Central Election Commission. The CEC adopted resolutions on early termination of powers of the following TECs:

Kherson oblast TEC (due to failure to ensure the exercise of powers of Bekhtery village TEC located in Skadovsk rayon of Kherson oblast and Kakhovka city TEC located in Kakhovka rayon of Kherson oblast insofar as they relate to certifying the election results in certain parts of territorial constituencies No. 3 and No. 5 and non-implementation of the corresponding court decision);
Chernivtsi city TEC (adopted a decision to schedule vote recount in 40 voting precincts without sufficient legal basis and breached statutory time limits for certifying the results of elections to oblast and rayon councils).
Marhanets city TEC in Dnipropetrovsk oblast (failed to comply with the court judgment that overruled the TEC decision to declare the election invalid in one of the voting precincts. This decision of TEC changed the winner of mayoral election).
Vasylkiv city election commission (non-implementation of court decision on vote recount in one of the voting precincts, failure to exercise the powers insofar as they relate to certifying the results of election of deputies to Kyiv oblast council and Obukhiv rayon council).
Karolino-Bugaz village TEC in Bilhorod-Dnistrovskyi rayon of Odesa oblast (failure to comply with court decisions concerning the refusal to register candidates which resulted in violation of electoral rights of citizens).

Based on the results of analysis of CEC decisions and the data collected by observers, OPORA singled out several high-profile incidents relating to certification of election results:

Marhanets city TEC declared the election invalid in one of the voting precincts. By doing so, the TEC changed the winner of mayoral election. The decision of TEC was substantiated by the fact that someone poured an unknown substance on voter lists in one of the PECs, which made it impossible for commission members to work with these lists. Later on, this decision was overruled by the court. The court decision will be implemented by the newly appointed members of city TEC following the early termination of powers of the previous composition of the commission.
The decision of Brovary city TEC to call a repeat election was invalidated by the court. The court judgment was issued in connection with violation of the secrecy of vote resulting from production of ballot papers with unique numbers that allow for identifying the voters.
Chernivtsi city TEC adopted a decision to perform vote recount in 40 voting precincts without sufficient legal basis. Subsequently, the decision of TEC was invalidated by the CEC.
Karolino-Bugaz village TEC in Odesa oblast adopted an illegal decision to certify the results of elections of village chief and deputies to village council. The first session of village council was called in record-breaking time in breach of relevant procedures. The decision of TEC was overruled by the court.
Alleged falsification of the results of voting in favor of candidates for deputies to Mykolayiv oblast council nominated by local organization of “Opposition Platform - For Life” party. The results of comparative analysis of vote counting protocols indicate the possibility of illegal redistribution of votes among candidates representing one the same political force (without changing the total number of votes received by local organizations of other political parties).
OPORA’s observers detected several discrepancies in the copies of voting counting protocols issued to different electoral subjects in the elections of deputies to Energodar city council (Zaporizhzhya oblast). These discrepancies indicate the possibility of illegal redistribution of votes among the candidates nominated by “Servant of the People” party (without changing the total number of votes received by local organizations of other political parties).
The National Police of Ukraine launched an investigation into alleged fact of election fraud which was detected by Dobromyl city TEC during vote recount in one of the voting precincts. It is suspected that 30 votes were illegally taken from four political parties and accredited to local organization of “Servant of the People” party during the election of deputies to Lviv oblast council. Furthermore, Lviv city TEC failed to comply with the decision of Lviv oblast TEC that placed it under an obligation to recount the votes in three other voting precincts.

Although the above-mentioned incidents occurred in a limited number of territorial communities and they are not characteristic of other electoral processes, they constitute a gross violation of the law and democratic election standards, and therefore can’t be neglected. Inability of TECs to meet the deadlines for certifying the election results poses a significant problem. In this context, OPORA supports the conclusions of the National Security and Defense Council concerning the existing risks of public confrontation in certain territories due to destabilization of the process of determining the vote returns in local elections. Furthermore, OPORA would like to draw stakeholders’ attention to the fact that various political groups and electoral subjects disseminate false information about the responsibility of the CEC for determining the results of local elections, whereas in reality the CEC has no authority to do it. Public dissemination of misconception of local election administration system undermines the credibility of the supreme body of election administration and electoral institutions. Therefore, this will have a negative effect on the organization of future election campaigns in Ukraine.

OPORA calls on the parliament, bodies of state authority and political parties to make a thorough study of the experience of holding the 2020 local elections and start a meaningful discussion of the system of election administration. One of the key tasks is to ensure prompt and full access of citizens to the information on election results, candidates and reports of election fund managers. The absence of public access to vote counting protocols of TECs and the results of vote tabulation in voting precincts has become an acute issue during local elections, which makes it possible to fake the results of voting at the level of election commissions. For example, in 2020 local elections OPORA’s observers recorded several incidents bearing the marks of falsification of the results of voting in favor of candidates representing one and the same organization of political party. The absence of open electoral data broken down by voting precincts makes it difficult to detect election fraud in a timely manner and prevent the influence of ballot rigging on the final election results. In order to improve the process of transfer of electoral data between election commissions and ensure full disclosure of election information it is necessary to conduct a major revision of current approaches to administering the election process and allocate adequate funding for performing these tasks.

The parliament and other bodies of state authority should pay special attention to the problem of insufficient training of members of election commissions and their vulnerability to undue influence of political parties and candidates. Professionalization and preliminary training of commission members in combination with reducing the role of candidates and parties in forming the election commissions represents a difficult political challenge for Ukrainian MPs and calls for conducting a genuine parliamentary debate. In any case, the incidents recorded in 2020 local elections point to the need for starting such a debate without further delay.

Acceptance of the need for reforming the system of election administration and professionalization of members of election commissions by no means indemnifies violators of the law against any and all liability. OPORA calls on the National Police of Ukraine to ensure comprehensive investigation into all incidents of alleged falsification of election results in specific territorial communities and voting precincts.

Impact of COVID-19 and implementation of anti-epidemic measures

On November 15, the second round of mayoral elections will be held in seven cities, of which four (Sumy, Ukrainka, Kamianets-Podilskyi and Kramatorsk) fall within the red zone of epidemic risk – the highest level of coronavirus threat.

The upward trend in COVID-19 infections remains a key challenge for proper organization and conduct of repeat elections. The typical problem of large-scale replacement of members of election commissions has become ever more threatening, given the growing number of coronavirus cases among commission members and the obligation to adhere to self-isolation regime. This creates the risk of destabilizing the work of commissions at the stage of voting, vote tabulation and determination of vote returns. Nominating entities are required to assume additional responsibility for finding reserve candidates for members of election commissions in order to ensure adequate organization and control of the voting process.

In addition to causing organizational difficulties, the COVID-19 epidemic may have a significant negative impact on voter turnout. Under these circumstances, local self-governments should pay extra attention to implementing effective anti-epidemic measures and conducting awareness-raising campaigns on the importance of ensuring safe conditions for all participants of election process in coordination with the election commissions.

Problems with executing government decisions on implementation of anti-epidemic measures in the election process stemmed from the absence of formal requirements and clear recommendations to the election commissions and local self-governing authorities on the provision and use of personal protective equipment as well as ensuring adequate control over timely funding of expenditures on epidemiological response. On November 6, the CEC adopted a resolution “On urgent measures to create adequate conditions for safe organization and conduct of repeat vote in 2020 local elections, and special aspects of implementation of anti-epidemic measures in the course of preparation and conduct of repeat voting”. The CEC resolution called on the Cabinet of Ministers of Ukraine to determine the average standards for supply of personal protective equipment and disinfectants to the election commissions. According to OPORA, the proposals listed in CEC resolution are of great relevance, given the non-uniform approach to providing the election commissions with the necessary means of prevention of the spread of COVID-19 disease. The CEC drew stakeholders’ attention to the need for ensuring the financing of actual expenditures of election commissions, taking into account regular replacement of personal protective equipment and the constant use of disinfectants.

Furthermore, the CEC drew special attention to the inadmissibility of disrupting the vote in special polling stations located in health care facilities. On October 25, 2020, observers reported several incidents which deprived citizens of the right to vote in some of the special polling stations. The CEC also noted that the voting booths intended for citizens with fever or symptoms of respiratory disease cannot be used by other categories of citizens. This recommendation was issued in connection with the use of these voting booths by people with disabilities. OPORA stresses the importance of CEC resolution and once again draws the attention of the Government of Ukraine to the need for informing voters about safe voting conditions and strengthening the coordination of activities of central and local authorities.

Politically motivated and negative reaction of local self-government authorities and officials to government decision on the imposition of additional anti-epidemic restrictions may have neutralizing effect on the efforts of bodies responsible for creating safe conditions for repeat voting, while citizens may use it as an excuse for ignoring anti-epidemic measures in the course of preparation and conduct of repeat vote.

Tight time limits for completing preparation for the vote on November 15, 2020, make it all the more difficult for election commissions to ensure implementation of anti-epidemic measures during repeat voting. The deadline for procuring personal protective equipment and disinfectants is way too short. Municipal executive bodies will find it difficult to meet the deadline even with the introduction of simplified procurement procedure.

At the previous stages of election process, OPORA’s observers reported numerous cases of non-compliance or improper implementation of certain provisions of the “Procedure for carrying out anti-epidemic measures in the course of organizing and holding elections” approved by Government Resolution No.641 as of July 22, 2020. Such malpractice remains widespread at the stage of preparation for repeat voting. It is often the case that election commissions implement anti-epidemic measures for the sheer sake of appearance. For example, the TECs have all the necessary disinfectants and trash bins for the disposal of used personal protective equipment, but they do not comply with the requirements for temperature screening and interviewing of visitors with symptoms of acute respiratory disease. The requirement to wear protective masks or respirators (while keeping social distance) is fulfilled sporadically: by no means all members of election commissions adhere to this rule, and / or there is no constant control over compliance with face mask regime in the premises of election commissions. Effective implementation of the policy on providing election commissions with personal protective equipment and disinfectants is possible only in the case of responsible attitude of all electoral subjects when it comes to abidance by the rules of conduct and the proper use of available protective means.

The CEC deserves credit for adopting a revised version of the text of voter invitation cards that are issued by the bodies responsible for maintenance of State Register of Voters. The newly adopted text includes recommendations to voters for preventing the spread of COVID-19 disease triggered by SARS-CoV-2.

Given the scaling down and localization of electoral process within the boundaries of certain territorial communities and regions, the Central Election Commission should establish direct communication with local bodies of public administration with the aim of providing advisory support and monitoring the implementation of anti-epidemic measures during repeat vote.

Assessment of the level of compliance with legal requirements insofar as they relate to reporting on campaign finance

According to OPORA, the 2020 election campaigns of candidates were conducted under conditions of ineffective system of financial reporting and in the absence of adequate control over campaign finance. The Electoral Code stipulates that the interim and final reports on the use of election fund resources should be submitted to the TEC, but the existing legal and factual circumstances make it impossible to monitor the financing of campaigning activities.

Firstly, the TECs don’t have sufficient skills, knowledge and practical capability to analyze the interim and final reports of election fund managers within the scope of their duties. The results of selective analysis of existing situation show that significant part of TECs didn’t analyze any interim or final reports of election fund managers, while the other part of TECs managed to perform analysis of the reports submitted by certain organizations of political parties. In many cases, the TECs analyzed the reports of local party organizations and candidates just to observe formalities.

Secondly, the interim and final reports of election fund managers (especially the interim ones) failed to fulfill the task of keeping the voters informed and ensuring transparency of campaign finance. This is due to widespread non-compliance with legal requirements for publication of interim and final financial reports. The Electoral Code places the TEC under an obligation to publish financial reports on its official website (if available) or on the website of relevant local council (if available) or in any other manner prescribed by the TEC.

OPORA’s observers analyzed the situation with respect to public disclosure of information from interim and final reports of election fund managers in 15 major cities of Ukraine (Mykolayiv, Odesa, Berdyansk, Lutsk, Uzhhorod, Sumy, Kramatorsk, Slovyansk, Kamianets-Podilskyi, Cherkasy, Rivne, Dnipro, Lviv, Kherson, Poltava).

In cities covered by OPORA’s monitoring the local organizations of political parties submitted a total of 112 interim reports, of which only 55% were published by TECs. This includes cases of publication of reports on the information stands in TEC premises with very limited access for voters. The TECs failed to publish 44% of interim reports submitted by local party organizations. In some isolated cases, local party organizations posted interim reports to their own websites which is also envisaged by the Electoral Code. The index of public disclosure of final financial reports is even lower: 55% of 133 final reports on campaign finance weren’t published at all, while 44% of final reports were published in the manner prescribed by TECs. 1% of final reports were published exclusively on the websites of local party organizations.

The TECs published 65% of 92 interim reports that were submitted by mayoral candidates in 15 territorial communities, while 36% of the total number of interim reports weren’t published on the website or in any other manner. The situation with respect to publication of final reports of mayoral candidates is even worse. The TECs published only 44% of 109 final reports that were submitted by mayoral candidates in 15 cities.

Thirdly, the current law and the existing practices do not contribute to strengthening the discipline of candidates and local party organizations when it comes to financial reporting and also create preconditions for the uncontrolled funding of campaigning activities. The Electoral Code allows local party organizations and candidates not to open an election fund account, if they don’t spend any money on pre-election campaigning. On the other hand, oblast organizations of political parties interpret their right to nominate candidates in all local elections as an opportunity to finance the campaigns in a centralized way and submit financial reports only to oblast TECs, which is not provided for by the Electoral Code. The percentage of electoral subjects that submitted financial reports to TECs differs vastly from one city to another, especially since they are not obliged to open an election fund account (the data presented in the table below reflects the number of reports submitted to TECs). The results suggest that it is impossible to estimate the scale of campaign finance in full.

Statistics of financial reports submitted by local organizations of political parties with a breakdown by city

City	% of local party organizations that submitted final reports, out of the total number of party organizations with registered electoral lists
Mykolayiv	36%
Odesa	67%
Berdyansk	93%
Kherson	52%
Lutsk	64%
Uzhhorod	60%
Sumy	100%
Kramatorsk	75%
Lviv	21%
Poltava	30%
Kamianets-Podilskyi	13%
Cherkasy	100%
Rivne	81%
Dnipro	65%

Statistics of financial reports submitted by mayoral candidates with a breakdown by city

City	% of candidates that submitted final reports in the total number of registered candidates	% of candidates that submitted interim reports, out of the total number of registered candidates
Mykolayiv	83%	83%
Odesa	35%	43%
Berdyansk	93%	93%
Kherson	35%	35%
Lutsk	36%	64%
Uzhhorod	59%	45%
Sumy	90%	90%
Kramatorsk	18%	27%
Lviv	53%	71%
Poltava	62%	8%
Kamianets-Podilskyi	43%	71%
Cherkasy	54%	To be determined
Rivne	63%	63%
Dnipro	65%	0%

OPORA calls on the Verkhovna Rada of Ukraine to focus on the problem of implementing democratic and anti-corruption standards in the field of political and campaign finance after the end of local elections. The current format of reporting by election fund managers is extremely inefficient, while the voters are deprived of easy access to information about sources and scale of financing of campaigning activities.

Activity of territorial and precinct election commissions

The responsibility for administering the process of preparation and conduct of repeat vote (representing one of the stages of election process that began on September 5, 2020) rests with the territorial election commissions that were formed on August 10, 2020. The process of repeat voting and vote tabulation shall be facilitated by the same PECs that organized the vote on October 25.

All TECs scheduled the repeat vote within statutory time limits (on or before November 6) on the basis of vote counting protocols certifying the results of corresponding local elections. November 6 was also the deadline for determining the results of elections to local councils and mayoral elections. However, on the eve of the deadline the CEC Secretariat was informed that the territorial election commissions determined the vote returns only in 54% of all elections to local councils and in 48% of all mayoral elections in villages, townships and cities. The complexity of the process of examining the election documentation and accepting the vote counting protocols from a large number of PECs all at the same time is one of the objective reasons why it took so long for TECs to determine the election results in large territorial communities. The majority of TECs certified the results of elections on the very last day allowed by the Electoral Code of Ukraine.

On November 11, the day when the results of all local elections were supposed to be published in local print media and on the official websites (of local councils, TECs or the CEC), it was officially confirmed that the TECs had determined the vote returns in more than 99% of local elections. At this stage, the key problem was the absence of unified approach to publishing the election results and the lack of operational information on the process of determining the vote returns in the elections. Voters were deprived of prompt and unlimited access to information about summarized results of local elections not only on a nationwide scale, but also at the level of oblasts, rayons and territorial communities. The uncertainty and gravity of the situation is evidenced by the fact that the Secretary of the National Security and Defense Council of Ukraine called on the CEC to take immediate measures to determine the results of local elections held on October 25, 2020, and publish them on the official website without further delay. The existing problem can be resolved by establishing uniform requirements and developing technical solutions for data handling at the level of TECs, incorporating them in the training programs of commission staff and monitoring the implementation thereof.

The TECs were responsible for approving the text, printing and transfer of ballot papers to relevant precinct commissions within the framework of preparation for the repeat vote on November 15. In practice, the TECs didn’t take due account of the time required for proper organization of the process of production and transfer of ballot papers to lower-level election commissions when adopting the decision to schedule the repeat vote. In particular, city TECs in Odesa and Sumy breached the time limits for producing and transferring the ballot papers as provided for by the Electoral Code. Although this procedural violation didn’t have a significant impact on preparation for repeat voting, the TECs could have avoided this situation if they had planned their work properly. For example, Odesa city TEC didn’t issue a public statement or clarification on the expediency of holding a repeat vote within 10 days of the date of determination of vote returns in mayoral election (the results of mayoral election in Odesa were certified on November 5, while the repeat vote was scheduled for November 15) under circumstances where the Electoral Code established a softer deadline for implementing this procedure.

Nominating entities have been actively replacing the members of election commissions at all levels throughout the election process. More than 54% of the initially appointed members of territorial election commissions were replaced, and this process is still ongoing, albeit to a lesser extent (according to OPORA’s observers, the scale of rotation of members of PECs is somewhat smaller). Four days before the election day, the Odesa city TEC carried out large-scale rotation of personnel in four city rayon TECs, which resulted in replacement of one third of the overall composition of each of the four TECs. Four members, including the secretary, were replaced in Odesa city TEC itself.

Besides the traditional reasons for renewal of election commissions such as the intentions of political parties and candidates to optimize control over the election administration process, large-scale rotation and reduction in commission staff numbers can be attributed to the negative trend in COVID-19 cases. Senior and rank-and-file members that withdraw from PECs due to illness are often replaced by those who have no previous work experience in the field of elections and haven’t received any training on special aspects of applying the new election law. This creates a risk of improper implementation of the procedures for counting the votes and drawing up the protocols on election results coupled with the inability to reach a quorum required for making decisions and organizing the routine work of election commissions.

OPORA’s observers gave a positive opinion on the general state of organizational readiness of precinct election commissions for repeat voting. The fact that PECs in the administrative centers of oblasts and large cities were formed with the inclusion of maximum allowable number of members (or close to maximum) gives reason to expect that these commissions won’t experience any problems with reaching the quorum. However, given the trend towards reduction and rotation of PEC staff and in view of the extremely short time frame left before the election day, large-scale replacement of PEC members may pose a serious challenge to the organization of repeat vote due to impossibility of mastering the electoral procedures and professional training of new members.

In general, OPORA’s observers didn’t identify any critical problems in the activities of territorial election commissions. The vast majority of TECs performed their duties in a proper manner. The most significant problems were encountered by Kramatorsk city TEC which was unable to convene a regular meeting and administer the oath to two new members for several days (in the November 8-11 timeframe). The formal reason for inaction of election commission was the conflict between the chairman and a group of commission members who tried to convene a meeting but without success. According to OPORA’s observers, replacement of old members of TEC and appointment of new members will change the balance of mutual control and is indicative of the struggle of the two rival candidates for the influence over non-uniform political composition of the TEC.

Pre-election campaigning activity of mayoral candidates

On November 15, 2020, repeat elections of mayors will take place in four administrative centers of oblasts (Lutsk, Odesa, Sumy and Kherson) and three other cities (Kramatorsk, Kamianets-Podilskyi and Ukrainka). The short time frame for conducting the election campaign (less than two weeks) was the defining feature of campaigning activity of mayoral candidates, given the date of decision to schedule the repeat vote (October 29 in Lutsk, November 2 in Sumy, on November 5 in Kherson and Odesa) and the date of holding the vote.

The election campaign of candidate standing for the post of local mayor officially begins on the day following the date of decision to schedule the repeat vote. All campaigning activities must be financed from the election fund established at the stage of candidate registration. In practice, candidates participating in the second round of mayoral election continued to conduct agitation activities after expiry of statutory period, albeit on a much smaller scale and with the use of campaigning methods different to the ones applied at the previous stage of election campaign.

Given the specifics and limited time frame for organizing a repeat vote featuring only two candidates, electoral subjects refrained from conducting intensive campaigns, including a combination of outdoor political advertising, media advertising, street campaigning and direct communication with voters. The current campaign is significantly less dynamic and less visible as compared to campaigning activity of candidates prior to the elections held on October 25. High-profile political events of national significance and election debates are the main topics of discussion initiated by the candidates.

Online campaigning was the most noticeable and prevailing form of candidate activity during this period. According to observers, the scale of political advertising on the internet was similar to the one observed at the previous stage of election process. Online campaigning was accompanied by direct and more active involvement of voters and candidates (parties) in agitation events.

The use of regional media for covert or direct political advertising of candidates is another popular form of campaigning activity. Cases of using influential national media resources for campaigning purposes have become more frequent in the absence of equal and unimpeded access of all candidates to mass media.

The scale of street campaigning in the form of distribution of newspapers, booklets with information about candidate’s election program and other image building materials has significantly decreased. Outdoor advertising media were used for placing campaign materials only shortly before the election day and to a smaller extent.

The search for allies and mobilization of support from other political forces that are no longer competing in elections is one of the key features of public campaigns of mayoral candidates. Public demonstration of support by political parties often forms an integral part of a broader process of political structuring of the newly elected local councils and marks the beginning of formation of inter-party coalitions. However, campaigning activity of political parties that are not running in the elections (and their calls to vote for or against certain candidates) exceeds the scope of election law. It has a direct impact on the election campaign and gives additional advantages to candidates-electoral subjects. One of the effects of demonstrative uniting of politicians and parties behind the two candidates is the polarization and escalation of confrontation between their supporters. The increasing propensity of election campaign towards conflict may manifest itself in a negative way at the stage of vote tabulation and certification of election results.

Incumbent MPs who demonstrate public support and agitate for mayoral candidates and often use their official status and powers for campaigning purposes is another key feature of current campaign.

Campaigning activity on the election day, October 25, 2020, and political advertising of mayoral candidates during repeat voting

Violation of the rules of pre-election campaining on October 24-25

According to the law of Ukraine, campaigning on the election day and on the day before is prohibited. This prohibition applies, among other things, to political advertising on social media. However, in the absence of state regulatory authority responsible for monitoring the compliance with the rules of online campaigning it is impossible to prosecute a person for violating the election law.

OPORA has been closely monitoring the activity of electoral subjects with regard to political advertising on the election day and on the day of pre-election silence. The majority of electoral subjects observed the law and refrained from placing political advertisements. This is also evidenced by the data of Political Ad Library. In particular, in the last few days of election campaign more than 25 thousand political ads were displayed on Facebook on a daily basis, while on October 24 and October 25 the number of active ads didn’t exceed 3.5 thousand. In other words, some electoral subjects ignored the ban on campaigning activity and continued to serve political advertising on the day of pre-election silence. During the days of election silence, anonymous pages were heavily used to distribute campaign materials containing elements of “black PR” technology and covert political agitation.

On the election day, OPORA recorded numerous cases of publication of popularity ratings and other results of public opinion polls on social media. In particular, a number of telegram channels, including the official channel of online periodical “Dzerkalo Tyzhnya”, published preliminary results of exit polls conducted in several cities of Ukraine. During the days of election silence, OPORA also recorded cases of publication of opinion polls in the city of Kamianske. The results of opinion polls were published by online media “Kamianskoye”, and more than 1,100 dollars were spent on promotion of this web resource. Publication of opinion poll findings bears the marks of covert campaigning that may have a significant impact on the outcome of the elections. OPORA calls on the electoral subjects and journalists to abide by the election law and refrain from publishing such materials until the end of voting process.

Campagning activity of candidates and parties during the period from October 25 to November 7

After the election day, the overall level of campaigning activity of political parties and candidates on social media decreased significantly. Over the past two weeks, electoral subjects spent nearly $144,000 on publication of more than 4,000 political ads on Facebook. OPORA analyzed these publications and determined which of the parties and candidates were the most active users of social media campaigning tools on the eve of the repeat vote.

By tradition, it is the parties who spent the largest amount of money on political advertising on Facebook. According to Political Ad Library, 30 political parties spent more than $34,000 (over 900 thousand UAH) on publication of 857 political ads. The majority of political ads posted by the parties included information about election results and campaign materials in support of party nominees participating in the second round of mayoral elections. Below you will find the list of top 10 parties that are spending the most on social media campaigning.

During the period from October 25 to November 7, “Servant of the People” party spent the largest amount of money – more than 8 thousand dollars (230 thousand UAH) on 89 political ads. The party used 8 pages to serve advertising on Facebook (official page of the party and a number of regional pages: “Servant of the People - Kyiv oblast”, “Servant of the People - Rakhiv”, etc.).

The official page of “Servant of the People” party spent the bulk of the money – more than 3.8 thousand dollars. For the most part, the pages displayed advertising materials about party nominees that won the elections in different regions of Ukraine and the level of representation of “Servant of the People” party in newly elected local councils. Party’s advertisements were primarily targeted at residents of Dnipropetrovsk (8.3%) and Lviv (6.1%) oblasts and the city of Kyiv (7.9%). Women aged 55+ make up the majority of party’s target audience (more than 40%).

The main topics of party’s advertising materials are quite similar to the ones posted by “Servant of the People”. The pages of “For the Future” party informed the audience about the regions in which the party won the election, but there were no campaign materials in support of party nominees that advanced to the second round of mayoral elections. Political advertisements were primarily targeted at western regions of Ukraine: residents of Chernivtsi oblast make up 9.5% of party’s target audience, residents of Lviv oblast – 7.2%, residents of Ivano-Frankivsk oblast – 6.6%.“For the Future” party ranks second on the list of big spenders, having paid more than 6 thousand dollars (175 thousand hryvnias) for political advertisements. The party used 9 pages (“Political party “FOR THE FUTURE”, “Women’s movement “For the Future”, “Fastiv rayon - For the Future”, etc.) to distribute the largest number of political ads in the reporting period – 164.

“European Solidarity party spent more than 3.7 thousand dollars (over 105 thousand UAH) on political advertising. The party created a large network consisting of 13 pagers (“European Solidarity - Chernivtsi oblast”, “European Solidarity – Cherkasy city”, “European Solidarity”) that served a total of 122 political ads.

The pages of “European Solidarity” party informed the audience about the results of elections in various regions of Ukraine and called on the voters to go to the polls in the second round of mayoral elections. This is especially the case of “European Solidarity Lviv” page that campaigned for candidate Oleh Synyutka.

Political advertisements of “European Solidarity” were primarily targeted at western regions of Ukraine: residents of Lviv oblast make up 14.4% of party’s target audience, residents of Dnipropetrovsk oblast – 7.1%, residents of Chernivtsi oblast – 6.6%.

“Rivne Razom” party spent $ 2.4 thousand (over 63,000 UAH) on political advertising on Facebook. The party posted 16 ads to one single page – “Political party “Rivne Razom”. The advertisements of “Rivne Razom” thanked its voters for the support, informed them about the election results and campaigned for party candidate for the post of mayor of Rivne – Viktor Shakyrzyan. Since this is a local political project, it is natural that residents of Rivne oblast account for 99.9% of party’s target audience.

“Holos” party paid a total of $2,300 for publication of 20 political advertisements. The party used 5 pages to serve ads on Facebook: “Holos”, “Holos of Ukrainka”, “Holos. Cherkasy oblast”, “Holos of Lviv” and “Holos of Zhytomyr oblast”. The advertising posts of “Holos” campaigned for party candidate for the post of mayor of Cherkasy Viktor Yevpak and called on the candidates for mayor of Ukrainka to publish their election programs. The advertising posts of candidate Viktor Yevpak called on the voters to go to the polls in the second round of mayoral election, solicited the support of other political parties and politicians and also urged rival candidates to publish their election programs before the second round of election. Political advertisements were primarily targeted at residents of Lviv oblast (who accounted for 11.9% of party’s target audience), Cherkasy oblast (7.6% of party’s target audience) and Ivano-Frankivsk oblast (7.1% of party’s target audience).

“Nash Krai” party spent more than $1,300 dollars (over 37,000 hryvnias) on political advertising on Facebook. The party posted 53 ads that were displayed on 7 pages: “Nash Krai - Pryluky”, “Nash Krai - Konstantinovka”, “Nash Krai - Mena”, etc.).

Campaigning activity of “Nash Krai” became less intensive after October 25 – the majority of party’s advertisements were published before the election day. The main topics of advertising posts – campaigning for party nominees and get-out-the-vote pleas. Some of the party’s advertisements were served during the days of election silence. Party advertising was primarily targeted at residents of Zhytomyr oblast (make up 45.3% of the target audience), Kirovohrad oblast (29.7%) and Donetsk oblast (20.9%).

“Opposition Platform - For Life” party spent more than $ 1,300 (over 37,000 hryvnias) on political advertising on Facebook. The party used 11 pages to serve 71 advertising posts. The advertisements informed the audience about the results of vote and accused the central government of exerting undue pressure and election fraud.

Unsurprisingly, political advertisements were primarily targeted at residents of Dnipropetrovsk oblast (they account for 97.5% of the target audience) and Kyiv oblast (2.3%) oblasts. Women make up the majority of party’s target audience (68.8%).

“Propozytsia” party ranks eighth on the list of big spenders. The party paid almost $1,000 for publication of 16 political ads on 5 pages: “Propozytsia”, “ProMarhanets”, “ProKropyvnytskyi”, “ProDnipro” and “ProRivne”. The advertising posts of the central office of “Propozytsia” party accused political opponents of using dirty campaigning tactics against the party candidate for the post of mayor of Dnipro Borys Filatov. The pages of local branches of “Propozytsia” introduced the party nominees who were elected to local councils and also accused political opponents of using dirty tricks against the party candidate for mayor. The party’s advertisements were viewed by users from all over Ukraine, but the primary focus was on residents of Rivne oblast (they make up 12.21% of the target audience), Kirovohrad oblast (11.86%), Dnipropetrovsk oblast (7.69%) and the city of Kyiv (11.77%).

“Syla Lyudei” party spent nearly $1,000 on 8 political ads that were posted to one single page – “Syla Lyudei Ternopil”. The advertisements informed the audience about party nominees that were elected to local councils and called on the residents of Ternopil to take part in voting on local non-government initiatives. All of party’s advertisements were targeted at residents of Ternopil and Khmelnytskyi oblasts.

Vilkul Bloc “Ukrainian Perspective” spent more than $800 on 10 political advertisements that were posted to 3 pages, including two pages of central party office – Russian and Ukrainian versions. The pages distributed campaign materials in support of party candidate for the post of mayor of Dnipro Oleksandr Vilkul. All advertisements were targeted at residents of Dnipropetrovsk oblast:

Candidates that advanced to the second round of mayoral elections also demonstrated very high levels of campaigning activity on Facebook. Below you will find the information about mayoral candidates’ expenditures on political advertising during the period from October 25 to November 7.

Political advertising on Facebook, October 25 – November 7, 2020
Candidates’ expenditures	Number of posted ads
Oleh Synyutka (Lviv) $3,625	44
Andriy Veselyi (Drohobych) $1,858	44
Pavlo Prydvorov (Sloviansk) $1,618	40
Vitaliy Mykhaylishyn (Chernivtsi) $1,449	6
Bohdan Andriiv (Uzhhorod) $1,336	49
Ihor Kolykhayev (Kherson) $1,025	23
Viktor Shakyrzyan (Rivne) $775	7
Viktor Shchadei (Uzhhorod) $748	31
Bohdan Shyba (Lutsk) $605	13
Vladyslav Chaika (Mykolayiv) $550	5

Candidate for mayor of Lviv Oleh Synyutka, who represents “European Solidarity” party and competes with the current mayor of Lviv Andriy Sadovyi, spent the largest amount of money on social media campaigning. Oleh Synyutka invested more than $3,500 in publication of 44 ads on Facebook. Candidate’s advertisements were targeted at users residing in Lviv, Ternopil and Ivano-Frankivsk oblasts.

The candidate paid for part of political advertising, while the other part was financed by Lviv branch of the “European Solidarity” party. In his advertising posts, the candidate talks about his future plans in the event of winning the mayoral election, invites rival candidate Andriy Sadovyi to the public debate and introduces the supporters of his election campaign.

Self-nominated candidate Andriy Veseliy spent more than $1,800 on publication of 44 political ads within the framework of preparation for the second round of election that will take place in Drohobych UTC on November 22. The candidate’s advertisements are primarily targeted at female audience. Users aged 18-34 account for one third of candidate’s target audience.

In his advertising posts, the candidate invites his rivals to the public debate, talks about himself / and his position on issues of social importance. Political advertising of the candidate was financed by Denys Perepelytsyn.

Candidate for mayor of Sloviansk Pavlo Prydvorov, who was nominated by “Opposition Platform - For Life”, spent more than $1,600 on publication of 40 political ads. In contrast to other candidates, Prydvorov’s advertisements can be viewed by users from all over Ukraine:

Prydvorov’s advertising posts provide coverage of his meetings with the residents of Sloviansk. The candidate also writes a regular column “In touch with people of Sloviansk”, in which he answers the questions of citizens and talks about his future plans in the event of winning the mayoral election. According to Political Ad Library, the candidate posted political ads at his own expense.

Candidate for the post of mayor of Chernivtsi Vitaliy Mykhaylishyn representing the “Team of Mykhaylishyn” party spent almost 1.5 thousand dollars on publication of 6 political ads. The advertisements are primarily targeted at young audience. The candidate paid for political advertising out of his own pocket

Candidate for mayor of Uzhhorod Bohdan Andriiv spent more than a thousand dollars on 49 political ads. In his advertising posts, Andriiv tells about his future plans in the event of winning the election and describes his achievements during the previous term of office as a mayor of Uzhhorod. Andriiv’s targeting is similar to those of other candidates included on our list:

Pages that do not belong to any of electoral subjects also remained active throughout the campaigning period. These pages are owned by politicians, media outlets, organizations, activists, anonymous “shared interest” groups, etc. These pages spent more than 80 thousand dollars on publication of almost 5 thousand political ads. The vast majority of these pages distributed campaign materials with elements of “black PR” technology directed against candidates participating in the repeat vote.

Political advertising on Facebook, September 1 – 15 Third persons’ expenditures on advertising in favor of political parties
Expenditures	Number of posted ads
Arseniy Yatsenyuk $4,171	421
“City of stagnation” $2,993	12
“2020 Election” $2,695	57
“Expert-KR - expert video about Kryvyi Rih” $2,390	5
Dmytro Nikonov $2,199	34

In the reporting period, Arseniy Yatsenyuk spent more than 4 thousand dollars on publication of 421 ads. The campaigning activity of Yatsenyuk is not related to the election process in Ukraine. In his advertising posts, Yatsenyuk addresses various nationally significant issues (holding the elections in the occupied territories, achieving peace in Donbas region) and criticizes the presidential initiative to conduct an opinion poll on October 25.

Almost $3,000 were paid for posting 12 ads to the anonymous page “City of Stagnation”. The advertising posts highlighted the worst aspects of life in Kryvyi Rih and sometimes directly criticized the local authorities (in particular, mayoral candidate Yuriy Vilkul) for the lack of progress in solving the burning problems of the city. It should be noted that political ads were actively posted to this page on the election day and on the day before.

The ”2020 Election” page was decorated with official colors of “Servant of the People” party, but there is no information available about page administrators. The page spent more than 2.5 thousand dollars on 57 political ads. The page continued to serve advertisements in the days of election silence and called on the citizens to go to the polls.

The page “Expert-KR - expert video about Kryvyi Rih” ranks fourth on the list of big spenders, having paid more than 2 thousand dollars for posting 5 political ads. The page positions itself as an “independent media platform”. The advertising posts on this page criticize the incumbent local authorities of Kryvyi Rih (in particular, the mayoral candidate Yuriy Vilkul).

The page of private entrepreneur Dmytro Nikonov published 34 political ads worth more than $2,000. In his advertising posts, Nikonov criticizes the current mayor of Kharkiv Hennadiy Kernes. The majority of advertisements containing elements of “black PR” technology were served on the election day.

Violations relating to the electoral process of local elections and progress in bringing the offenders to justice

Since the beginning of local election campaign, the territorial bodies of the National Police of Ukraine have registered a total of 16,121 violation reports and statements of offence related to the electoral process. The majority of violation reports were registered in the following regions: 1782 – in Kyiv oblast; 1742 – in the city of Kyiv; 1228 – in Dnipropetrovsk oblast; 1142 – in Odesa oblast; 1046 – in Donetsk oblast.

The violation reports filed with the police concern the incidents constituting an electoral offence, in particular:

illegal campaigning – 6017 cases;
production or distribution of printed campaign materials – 1183;
breach of the procedure for placing the campaign materials – 839;
bribery of voters – 751;
breach of the procedure for maintaining the register of voters – 477;
falsification of election documents – 437;
breach of the procedure for publishing the election documentation – 431;
taking photos of ballot paper – 321.

Overall, the information on 1,075 criminal proceedings was entered into the Unified Register of Pre-Trial Investigations:

671 criminal proceedings related to violation of election law;
404 criminal proceedings related to electoral process.

In 85 criminal proceedings 103 persons were served the notice of charges, and in 23 criminal proceedings the case materials were submitted to the court.

Furthermore, the law enforcement agencies drew up a total of 2,381 administrative offence reports.

Since the beginning of electoral process (September 5), 702 judgments on cases of prosecution of electoral administrative offences have been published in the Unified State Register of Court Decisions (in particular, 324 judgments were published during the period from October 22 to November 10, 2020).

In 237 cases (nearly one third of all cases), the case materials were sent back for further examination (for proper execution). In 340 cases, (nearly a half of all cases) the accused persons were found guilty. 215 cases were closed for various reasons: due to the absence of the event of administrative offence (with or without finding the accused person guilty) or due to insignificance of committed offence (under Article 22 of the Code of Ukraine on Administrative Offences).

By tradition, the majority of considered cases fell under the Article 212-13 (production or distribution of printed campaign materials without necessary source data – 394 cases), Article 212-14 (breach of the procedure for placing the campaign materials – 201 case) and Article 212-10 (violation of restrictions imposed on pre-election campaigning – 75 cases) of the Code of Ukraine on Administrative Offences (CUAO).

It should be noted that the courts began to consider the cases that fall within the scope of new articles of CUAO: 3 cases under Article 212-22 (public disclosure of the results of expression of the will by the voter at the premises of voting precinct), 18 cases under Article 212-23 (damage, concealment, destruction of ballots by the voter or an attempt to take them out of the voting premises), 8 cases under Article 212-24 (interference with the right to vote in the election or referendum, or obstruction of activities of the electoral subject participating in the election or referendum process).

Judicial practice within the scope of Articles No. 212-22, 212-13, 212-14 that were introduced into CUAO as a result of 2020 law reform

In three cases falling under the Article 212-22 (public disclosure of the results of expression of the will by the voter at the premises of voting precinct) administrative offence reports were drawn up against voters who took photos of their ballot papers. The court proceedings in two cases (No. 359/8429/20, No. 359/8482/20) were closed due to the absence of the event of administrative offence. According to court rulings, the fact that the voters took photos of ballot papers does not represent solid evidence of public disclosure of the results of expression of the will by way of demonstrating the ballots to other people inside the voting premises. Case No. 531/1731/20 was closed due to insignificance of committed offence since the offender admitted his guilt.

OPORA emphasizes the falsity of the practice of opening administrative cases under Article 212-12 of CUAO against persons that took photos of their ballot papers, but didn’t demonstrate the content of ballots to anyone inside the voting premises.

The accused persons were found guilty in 13 out of 18 cases falling under the Article 212-23 (damage, concealment, destruction of ballots by the voter or an attempt to take them out of the voting premises).

In 8 cases, violators received a verbal warning and were exempted from paying a fine. For example, the defendant in case No. 453/1332/20 was served a warning after admitting his guilt and giving the following explanation: he received four ballots for voting in regular local elections, marked two of them, but was unable to make a choice in the other two ballots, which is why he decided to take them out of the voting premises and throw them into the waste-bin. In case No. 497/1453/2020, a female voter with poor eyesight received the ballots and asked the commission members if they can lend her glasses for temporary use, and when they said ‘no’, she tore the ballots into pieces and threw them on the floor. In other cases, the accused persons were brought to responsibility and received a fine.

As can be seen from the above, decriminalization of offences falling under the Article 212-23 (destruction of ballots by the voter) led to positive consequences. In each of the above cases, the actions of accused persons didn’t pose a significant threat to public order.

8 cases falling under the Article 212-24 (interference with the right to vote in the election or referendum, or obstruction of activities of the electoral subject participating in the election or referendum process) were published in the Unified State Register of Court Decisions.

In one case (No. 531/1732/20), an administrative offence report was drawn up against the head of PEC who opened the voting precinct on October 25, 2020, at 8.30 am. The court proceedings were closed due to insignificance of committed offence. Head of election commission admitted his guilt and explained that the incident occurred due to technicalities.

In cases No. 647/2944/20, No. 647/2940/20, No. 647/2945/20, No. 647/2941/20 four persons were brought to responsibility for refusing to admit persons other than local residents into the premises of voting precinct No. 650021 for the purpose of casting ballots.

Problem points of court proceedings in cases on electoral administrative violations

In the previous report, we drew your attention to the problem of large-scale return of administrative case materials (about 30% of the total number) for further examination (proper execution) and named the most typical reasons why the courts sent them back to the police authorities.

It should be noted that the impossibility of proper execution of case materials is due to the specifics of new law on local elections, and therefore it can’t be fixed without introducing changes in the legislation. The main problems arising from the new election law include the following:

Unlike the local organizations, the central organizations of political parties are not the electoral subjects participating in local elections, therefore, the use of the name “All-Ukrainian organization” instead of “local organization of political party” in the leaflet can’t be interpreted as campaigning activity (case No. 331/ 3778/20).
It is impossible to determine the party representative that bears responsibility for pre-election campaigning in the period between nomination and registration of candidates. For example, the court closed the proceedings in case No. 161/16742/20 due to the absence of event of administrative offence. In its statement of reasons, the court noted that administrative case materials don’t contain any evidence that placement of campaign materials in support of political party “Victory of Palchevskyi” on the outdoor advertising media (billboards) in the city of Lutsk was carried out against the order and on the initiative of particular person nor is there any evidence that this particular person was responsible for the conduct or timely termination of campaigning activities in favor of the specified party.
The legal definition of the term “campaigning” as provided in the Electoral Code does not allow for prosecuting the potential candidates that commenced their campaigning activities before the official start of the electoral process. The term “pre-term campaigning” is used in the election law, but there is no legal definition and no clear algorithm for bringing the person to responsibility for committing such a violation. For example, the court closed the proceedings in case No. 365/417/20 on placement of campaign materials on the billboard in support of “For the Future” party on August 23, 2020, which falls under the Article 212-13 of CUAO. In its statement of reasons, the court noted that the electoral process began on September 5, 2020, while the administrative offence report refers to the incident that occurred earlier on. However, in case No. 297/2115/20 the court arrived at the opposite conclusion and brought the accused person to responsibility for placing campaign materials in support of “KMKS” party on the billboard on August 15, 2020, before the official registration of this political force as an electoral subject.
The law does not establish a clear procedure for bringing the authorized representatives of local authorities and self-government bodies to responsibility for failing to take necessary measures to remove the campaign materials from the outdoor media at midnight between Friday and Saturday on the eve of the election day. For example, in case No. 192/1727/20 the court refused to bring the head of communal enterprise “Novopokrovske” to responsibility. In its statement of reasons, the court pointed to the absence of valid evidence that this enterprise is responsible for removing the campaign materials. During the court hearing, the director of communal enterprise explained that this enterprise is a self-sustained organization and it didn’t receive any funds for organizing the work on removal of campaign materials.

Analysis of key court proceedings relating to determination of election results in the territorial communities where repeat voting (repeat elections) will take place

Chernivtsi

The impossibility of determining the results of local elections in Chernivtsi was caused by the decisions to recount the votes in a significant number of voting precincts where the TEC breached the procedure for accepting the election documents from PECs. In particular, the TEC accepted the election documents from PEC for safe custody in view of long duration of the procedure for transferring and accepting the documentation. This fact gave rise to legal action by political forces that appealed against the procedure for accepting the election documentation, demanded the adoption of decision to recount the votes and also appealed against the results of vote recounting.

In case No. 600/2221/20-a, the court declared illegal the decisions and actions of TEC concerning vote recount in PEC No. 730274 as a result of invalidation of 1,636 ballots for all types of local elections due to the fact that they weren’t stamped with a number stamp of PEC. The court interpreted the absence of TEC response to the appeal as admission of the claim. The court also took due account of written and electronic evidence and the testimony of witnesses (the head and member of PEC No. 730274 as well as the police officer who accompanied the election documents confirmed the absence of any signs of documentation unpacking in the process of transfer to the TEC) and concluded that the TEC violated the provisions of Sections 5, 9 and 10 of Article 254 of the Electoral Code of Ukraine by adopting an illegal and ungrounded decision to schedule the vote recount. In case No. 600/2204/20-a, the court demanded to bring all 1,636 ballots to the court hearing for further examination, but in the end the ballots were not transferred to the court for the reason that the claim was dismissed without prejudice at plaintiff’s request.

In case No. 600/2071/20-а, the court dismissed the appeal filed by local organization of AUU “Svoboda” against the decision of city TEC to recount the votes in 11 voting precincts. In its statement of reasons, the court noted that the defendant had legal grounds for adopting the decision to recount the votes. Furthermore, the decision on vote recounting ensures implementation of the principles of objectivity, impartiality, legality and equal opportunities for all candidates and allows for determining the actual results of expression of the will of voters.

In case No. 600/1997/20-a, the court dismissed the appeal filed by local organization of “Ridne Misto” party against the decision of city TEC to recount the votes in the voting precinct No. 730080. In its statement of reasons, the court noted that the number of citizens who voted for territorial electoral lists of several local organizations of political parties does not correspond to the number of citizens who voted for each of the candidates representing these parties as evidenced by the vote counting protocol of PEC.

Odesa

In case No. 420/11902/20, mayoral candidate Serhiy Kivalov appealed against the actions of TEC in Prymorskiy rayon of Odesa and demanded to recount the votes in 97 voting precincts within the boundaries of Prymorskiy territorial election constituency. However, the plaintiff failed to provide valid evidence of breach of the procedure for transferring the election documents, namely, the absence of accompanying police officers in the process of transportation of documents and violation of election law insofar as it relates to holding a TEC meeting without taking a recess. As a result, the court dismissed the appeal.

Berdyansk (Zaporizhzhya oblast)

In case No. 280/7819/20, the court invalidated the decisions of Berdyansk city TEC to recount the votes in 8 voting precincts after arriving at the conclusion that TEC decisions were adopted in violation of Section 9 of Article 254 of the Electoral Code of Ukraine. According to online videos of continuous meeting of Berdyansk city TEC, the decisions on vote recounting were adopted on October 26, 2020, October 27, 2020 and October 30, 2020. According to excerpt from the minutes of continuous meeting of the TEC held on October 30, 2020, Berdyansk city TEC adopted the decisions on vote recount following on from the results of consideration of complaints. However, after examining these complaints the court concluded that they don’t contain any attached documents that confirm the fact of violation of election law. Therefore, the TEC had no legal grounds for adopting the decisions on vote recount. Furthermore, the decisions of TEC on vote recount as of October 26, 2020, were adopted on the basis of consideration of complaints that were not submitted to TEC in the manner prescribed by law (the information about these complaints wasn’t entered into the register). Consequently, the TEC had no lawful basis or valid reasons for adopting these decisions, and therefore they are subject to invalidation.

Cherkasy

In case No. 580/4944/20, the court partially satisfied the appeal filed by Cherkasy oblast organization of “National Corps” party and placed the TEC under an obligation to reconsider the organization’s complaint about violations that were recorded in 20 voting precincts of Prydniprovskyi and Sosnivskyi rayons of Cherkasy. The oblast organization of “National Corps” demanded to invalidate the elections in these voting precincts.

Boryspil (Kyiv oblast)

In case No. 320/10936/20, the plaintiff appealed against the decision of TEC that invalidated the election and scheduled a repeat vote owing to the death of the candidate who received the largest number of votes. The appeal was dismissed by the court.

Brovary (Kyiv oblast)

On November 9, Kyiv District Administrative Court satisfied the appeal against Brovary city TEC in case No. 320/11152/20 and invalidated the elections of mayor and deputies to Brovary city council.

The appeal was filed on the grounds of electoral violations recorded by candidates and observers during the voting process, such as the presence of numbered ballots and control slips. According to the court, this constitutes a breach of secret ballot procedure as well as violates citizens’ right to free elections and equal voting rights.

On November 10, the court adopted another decision on the repeat election of mayor of Brovary based on the results of consideration of the case No. 320/11153/20. After receiving the information about numbered ballots and control slips, the TEC obliged all PECs to cut off the numbers that were printed on strict reporting forms in an effort to ensure the secrecy of ballot. The court ruled that under these circumstances it was impossible to comply with the basic principles of suffrage, ensure due course of the law and prevent unlawful interference in the electoral process as provided for in the Constitution and the Electoral Code of Ukraine.

According to the courts, the aforementioned violations indicate that the election process wasn’t organized and carried out in strict accordance with the Electoral Code in all voting precincts of the corresponding electoral constituency. As a result, the courts ruled that such circumstances provide the legal basis for holding a repeat vote and obliged the Brovary city TEC to schedule the repeat elections of mayor and deputies of Brovary territorial community as provided for in Article 280 of the Electoral Code of Ukraine.

Karolino-Bugaz village (Bilhorod-Dnistrovskyi rayon of Odesa oblast)

The court decisions in 13 cases concerning the elections in Karolino-Bugaz village territorial community came into force. In half of all cases, the first instance court satisfied the plaintiff’s claims. Karolino-Bugaz village TEC was placed under an obligation to declare the elections invalid and to schedule the repeat elections of village chief and deputies to village council in all multi-member constituencies as well as in certain single-member constituencies. All decisions of Odesa District Administrative Court were challenged in the appellate court. The Fifth Administrative Court of Appeal employed a formal approach to considering the appeals. In particular, the appellate instance didn’t conduct an assessment of committed violations in terms of their influence on the election results and failed to substantiate the grounds for declaring the elections invalid and scheduling the repeat elections. As a result, the appellate court overruled almost all decisions of the first instance court and adopted new decisions on dismissal of plaintiffs’ claims to declare the elections invalid and schedule the repeat elections. Only in one case (case No. 420/11489/20) the plaintiffs failed to annul the decision of first instance court that invalidated the elections in multi-member constituency No.5 and scheduled the repeat elections. This happened only because the plaintiffs missed the deadline for filing the appeal. As of today, the TEC is yet to adopt a final decision after the decisions of the appellate court have entered into force.

Kryvyi Rih (Dnipropetrovsk oblast)

It wasn’t until the evening of November 12 that the Kryvyi Rih сity TEC announced the results of the “first round” of mayoral election. This announcement came out after the plaintiffs and authorized representatives of candidate for mayor of Kryvyi Rih Dmytro Shevchyk had lost the vast majority of cases against TEC, including judicial appeals. In particular, the courts considered the following cases: No. 160/14519/20, 160/14520/20, 160/14522/20, 160/13924/20, 160/14526/20, 160/14527/20. It should be noted that the appeal in case No. 160/14518/20 was satisfied by the court, and the Kryvyi Rih city TEC located in Kryvyi Rih rayon of Dnipropetrovsk oblast was placed under an obligation to consider the complaint filed by the authorized representative of the candidate for mayor of Kryvyi Rih Yevhen Kovalev on November 3, 2020, under the procedure established by the Electoral Code of Ukraine. Candidate Yevhen Kovalev was nominated by Kryvyi Rih city organization of “Servant of the People” party.

Recommendations

Cabinet of Ministers of Ukraine, local state administrations, local self-governments and their officials:

Ensure coordinated efforts to implement anti-epidemic measures aimed at maximizing the exercise of citizens’ electoral rights and preventing the spread of COVID-19 across Ukraine.
Establish direct, transparent and effective communication with the election commissions in order to quickly assess their needs and respond to their requests regulated by the Government resolution and CEC recommendations.

Central Election Commission:

Promptly collect information and ensure full publication of up-to-date data on the results of all elections on October 25, 2020, and the repeat vote.

National Police of Ukraine:

Carry out prompt investigations and provide regular information to the citizens on the results of the investigation of possible fraud incidents at the stage of vote counting and establishing voting results, as well as the instances of violations during the repeat vote.