The election campaigns of 2019–2021 showed that some of the restrictions provided for in Art. 57 of the Electoral Code are ineffective. That is why the relevant working group on the development of media legislation is working on improving the legal regulation of election campaigning. 

This piece continues a series of publications on the reform of electoral legislation on information support and election campaigning. Here, we will focus on certain limitations of Art.57 of the Electoral Code, which is proposed to be improved in the draft law No. 8310.

Expansion of the group of subjects with limited participation in pre-election campaigning

In the current version of Part 1 of Art. 57 of the Electoral Code, it is prohibited to participate in election campaigning for executive bodies, their officials, and employees. Such wording does not cover a number of other subjects of power. Therefore, the draft law proposes to replace “executive authorities” with “state authorities”, which will allow to cover a wider range of people (for example, to extend its effect to the President and people's deputies of Ukraine). 

Also, the current legal regulation generates uncertainty from the following wording: “Participation in election campaigning shall be prohibited … to authorities … their officials and employees during working hours (except if such a person is a candidate in the relevant elections)”. In this regard, the draft law specifies that candidates who are public persons can campaign only on holidays and non-working days, or while on formal vacation leave. 

Such changes are also necessary to distinguish between the status of a public person and a candidate, which will reduce the risks of abuse of office for campaigning.

Changes in Voter Bribery Approach

The legislator proposes to correct the mistake they made in 2020, when they tied the cost of products that will be considered voter bribery to the tax-exempt minimum of citizen income, rather than to the minimum wage. The fact is that according to clause 5 of subsection 1 of section XX “Transitional Provisions” of the Tax Code of Ukraine, the tax-exempt minimums can have two meanings: according to the general rule — 17 hryvnia, and for provisions of administrative and criminal legislation — at the level of tax social benefits (50% of the subsistence minimum, which in 2023 is 1,342 UAH). This led to the fact that, according to the Verkhovna Rada of Ukraine, the cost of branded campaigning products cannot exceed 1.02 UAH, and this is incommensurate with the real prices for goods.

The bill is designed to solve this problem by setting a maximum for the cost of branded campaigning products in the amount of 5% of the minimum wage as of January, 1, which in 2023 is equal to 335 UAH.

Establishment of the Expert Council During the Elections

The draft law provides that in order to assess violations in campaign materials in the media during the elections, the National Council shall create an Expert Council on Election Campaigning. If the Expert Council provides an opinion identifying the signs of violations of Part 3 of Art. 57 of the Verkhovna Rada of Ukraine (calls for the elimination of Ukraine's independence, changing the constitutional order by violent means, violating the sovereignty and territorial integrity of the state, undermining its security, illegal seizure of state power, propaganda for war, violence and incitement to interethnic, racial, or religious hatred, encroachment on human rights and freedoms, public health), the media is obliged to refuse their dissemination. At the same time, when finalizing the draft law for the second reading, it is necessary to clarify the status of such a council.

Places for Election Campaigning

The draft law stipulates that only:

  • in the places specified in Part 3 of Art. 53 of the EC of Ukraine (that is, in locations specially equipped by local authorities, on stands, bulletin boards in crowded places for placing printed campaign materials);
  • on legally established advertising structures.

Such changes clearly distinguish between violations of electoral legislation and violations of the rules of landscaping. At the same time, it may be necessary to expand the list of authorized locations so as not to narrow the space for election campaigning. Formally, this provision means that anywhere, in any premises, places, any campaign materials (not only printed versions) shall be prohibited to place (including legally rented facilities), as well as to put up campaigning tents. In addition, this provision requires coordination with other restrictions on the placement of campaigning materials, such as those established in Part 16 of Art. 57 of the EC of Ukraine.

Limitations on Campaigning Content

The draft law contains many restrictions on the content of election campaigning. Here is a non-exhaustive list of prohibited topics and materials:

  • propaganda of the russian totalitarian regime, armed aggression of the russian federation as a terrorist state against Ukraine, as well as symbols of the military invasion of the russian totalitarian regime; denial or justification of the criminal nature of the communist totalitarian regime of 1917–1991 in Ukraine; or the criminal nature of the National Socialist (Nazi) totalitarian regime;
  • information that humiliates or disparages the state language; 
  • encroachment on human rights and freedoms;
  • materials that contain signs of sexism or incite to sexism;
  • materials that can cause significant harm to the physical, mental, or moral development of children, or cause their feeling of inferiority;
  • materials mentioning people included in the List of persons who pose a threat to national security. 

In general, OPORA positively assesses most of the restrictions but some of them are not well defined. In particular, we are talking about prohibitions on the use of means and technologies that “affect the subconscious of voters” or “contain elements of cynicism.”

Warning for Non-Compliance

In addition, in Part 19 of Art. 57 of the Electoral Code of Ukraine, the draft law proposes to give the right to the CEC during national elections, or to the main election commission at local elections, to issue warnings to a candidate, a party, or its organization, in case of violation of prohibitions or requirements for campaigning. At the same time, it is not clearly indicated which body establishes the fact of such a violation. Therefore, with regard to legal certainty, it is necessary to clarify the grounds for announcing a warning, for example: “In case of a violation established by a court decision”.