Statement
Observers of Civil Network OPORA report that their right to observe the election process is restricted by DEC members, what becomes a systemic issue.
Another systemic issue is that the DECs interpret the Article 78(9.4) of the Law is such a way that an observer from NGO can attend only DEC meetings. Thus, a number of DECs are trying to forbid observers to be present in DEC premises if there are no meeting held, or to record videos in DECs. Besides that, commissions establish additional registration requirements that are not provided by the Law of Ukraine on Elections of People's Deputies of Ukraine, and forbid to observe and record videos without prior registration. There were also some incidents when observers are not allowed to enter DEC premises.
We are convinced that such actions of DECs (that became systemic these days), significantly restrict the rights of observers, established by the Article 78 of the Law of Ukraine on Elections of People's Deputies of Ukraine, and are against the fundamental principle of publicity and openness of the election process, established by the Article 13 of the Law of Ukraine on Elections of People's Deputies of Ukraine.
According to Paragraph 91 of the Code of good practice in electoral matters, approved by the Venice Commission on 19 October 2002, the legislation shouldn't create excessive obstacles for activities of observers. The law also should precisely enlist places, closed for observers. For example, the Venice Commission expressed an opinion that if a law allows observers visit only voting sites, it may be narrowly interpreted by the certain election precincts without adequate justification.
We are asking the CEC to provide official explanation of whether an official observer can attend and make photo and video recordings on meetings of district election commissions, and in the premises while DEC members are fulfilling their other duties (inserting and verification of data in the automated information analysis system, handing out equipment to members of PECs and DECs, conducting deliberations and consultations.
Thus, for example, the Article 82(5.3) of the Law of Ukraine on Election of the President of Ukraine guarantees the right to attend while the protocol data is inserted and verified: to system administrator, operator of the automated information analysis system, the head, deputy head and secretary of a district election commission (chairman), members of the commission and official observers.
Although such possibility is not provided by the Law of Ukraine on Elections of People's Deputies of Ukraine directly, it results from the principle of publicity and openness of the election process, secured by the Article 13.
According to the Article 307 of the Civil Code of Ukraine (CCU), the consent for filming on photo or video is presumed if such recording is made openly on a street, meeting, conference, rally and other public events.
Some examples of incidents that occurred during observation of early parliamentary elections are given below.
On 14 October 2014, OPORA's observer Ye. Ponomarenko has noticed violation of electoral legislation. Member of the DEC was handing out equipment to PEC members. Heads of some PECs located in the district #200 were filling in protocols of the first meeting with oathtaking on the agenda and sealed them with PEC seals right in premises of the DEC. Observer Ye. Ponomarenko has recorded this violation on video. Shortly afterwards, Head of the DEC #200 L.V. Yaremchuk and the attracted specialist, Commission's jurist, prohibited the observer to be present in the DEC due to the reason that meetings weren't held. Besides that, jurist of the DEC seized observer's phone and made him delete the video, justifying his demand by the fact that private persons on video didn't give consent to be recorded. When the observer advanced a remark that the Law doesn't require consent on recording of public events, particularly activities of public authorities, the Commission Head and jurists ignored it. Head of the DEC L.V Yaremchuk insisted that her consent is a must if she's recorded as a private person outside the meeting. Head of the DEC and the attracted specialist called the Police and banned further observation without joint decision of the DEC on prohibition of observer's presence.
In the DEC #115, access to the room where the Commission works with the Vybory analytical information system was limited, and closed to parties' authorized persons, candidates' proxies and observers during the procedures established by Resolutions of the CEC (drawing of lots, determination of quotas for managing positions).
On 8 October 2014, OPORA's observer Denys Davydov came to the commission meeting in thirty minutes before the beginning. The observer greeted commission members who were already in the premises, and sat down. Shortly afterwards, Commission Secretary O.M. Tkachenko roughly and loudly demanded observer to leave and come back at the beginning of the commission meeting. He justified his demand saying that observers can attend only during the commission meetings. Commission Head L.V. Katsapova and Commission Member I.I. Shevchenko supported the Secretary. The observer refused to obey, as long as demands were, to his mind, illegitimate and appealed to the Article 11 and 13 on publicity and openness of the election process. Commission Member I.M. Shevchenko insisted that the observer was intruding into activities of the commission, despite he was only observing. Commission Secretary called his lawyers, to the central office of the OPORA and to regional coordinators in Dnipropetrovsk oblast, in order to make the observer leave.
The next day, on 9 October 2014, when the sortition between PEC members was to be held, observer Denys Davydov came to the Commission at 3:05 PM, and the meeting was scheduled for 4:30 PM. The observer came in advance in order to receive information about the readiness to sortition, whether lists of candidates are ready to every PEC, to take a look at the protocol of preliminary meeting, and not to distract Commission Members right before the meeting. However, as soon as the observer came into the Commission and opened his notebook, the Commission Secretary O.M. Tkachenko demanded that he left. Similarly to the previous day, he called his jurists, as well as the central and regional offices of the OPORA. The observer received a lot of remarks, particularly from: the Commission Head L.V. Katsapova, saying that his presence is unwanted and bothers commission members, who work in coordination; the Commission Secretary O.M. Tkachenko emphasized that observers can attend the Commission only during its meetings; Deputy Head of the Commission N.V. Kumanovska and Commission Member I.V. stated that the observer should register in the journal to attend the Commission premises; Commission Member I.I. Shevchenko stated that the observer should leave the premises immediately and, despite such decision can be taken only by two-thirds of present members on commission meeting, the observer should leave if separate members demand, because the Commission is a collegial body only on its meetings. The Commission Head called the Police from the Babushckinskyi Raion Department. When two policemen came, the Head demanded that they took the observer out of the Commission. The observer explained policemen his rights, they left the Commission without writing a report.
On 10/10/2014, before the DEC meeting dedicated to allocation of managing positions in PECs and creation of DECs, observer Denys Davydov came to the DEC at 3:50 PM (the meeting was scheduled for 4:00 PM). He and around 10 other observers, authorized persons and proxies of candidates stood in the hall in front of the Commission door. The door was closed, and the Technical Secretary O.V. Rohoza was registering everyone present. She informed that observers, authorized persons of parties and proxies of candidates can enter only when the meeting starts. The observer informed her that it's against the Law, as long as Commission premises cannot be closed on working hours.
According to the Article 30 (1.2), the CEC shall control the adherence to and uniform application of the Law on Election of the People's Deputies by the voters; district and precinct election commissions, official observers and NGOs.
According to the Article 14(1) of the Law of Ukraine on the Central Election Commission, electoral subjects can appeal to the CEC concerning issues that are within its authorities.
Taking into consideration the examples given above, and the Article 14(3.1) of the Law of Ukraine on the Central Election Commission, OPORA appeals to you with an application, asking to assist in realization of electoral rights of official observers deployed by NGOs, and give interpretation to the certain issues of application of the Law of Ukraine on Elections:
- Can an official observer be present and take photos/record video in the DEC while election commissions fulfill their other duties than holding meetings.
- Is the registration in a separate journal is mandatory, both to attend the meeting or other activities of DECs; and whether the fact that there's no registration for every visit to commission premises is a restriction of observer's rights?
- Does an observer have the right to access all premises where DECs conduct their activities, and the room where the automated information analysis system is located in particularly?
In addition, if the Central Election Commission considers the actions of commission members, officials, and attracted specialists described in this application as such violating the legislation, we'd like to ask that the abovementioned persons were explained that such actions are inadmissible.