INTERIM REPORT on OPORA observation of the Special Parliamentary Election in Ukraine 2014 (October)

SUMMARY

The special parliamentary election is taking place amid the military aggression of the Russian Federation and armed conflict with pro-Russian fighters. Safety of election participants and organizers, inevitability of prosecution for the crimes committed against citizens’ voting rights, reducing the impact of illegal campaigning methods remain among the key challenges. Comparing the special election 0f 2014 with the regular one of 2012, the OPORA observers note the lessening effect of the administrative resource, strong competitiveness of the campaign and progress with citizen access to information. Yet, voter bribing and unfair campaigning remain on the agenda.

The changes to the Criminal Code of Ukraine, adopted by the Ukrainian parliament on 14 October 2014 have made a positive breakthrough in the part of legal regulation. Most of the crimes against the voting rights are classified as serious ones. Therefore, illegal campaigning, voter bribing, use of administrative resource, hindering observer activities, illegal voting, procedure violations, rigging election documentation, damaging ballot boxes will be prosecuted with penalties ranging from large fines to imprisonment. Since the law does not have the retroactive effect, the penalties will cover violations registered from the 23 of October onwards. Yet, the new norms may significantly improve the voting day and become a preventive measure against vote rigging attempts.

Despite the announced “ceasefire” armed clashes with the illegal armed groups supported by the Russian Federation army continue – although with lower intensity – in a number of districts of Luhansk and Donetsk oblasts. Occupation of the Autonomous Republic of Crimea as well as the number of administrative units of Donetsk and Luhansk oblasts block the possibility of carrying out the parliamentary election on the whole territory of Ukraine. The OPORA observers learned that in some territories occupied by the terrorist groups, according to the CEC, PECs have been formed. The question remains open how the Ukrainian government can ensure the voting process in these districts.

INTERIM RESULTS

Candidates’ campaigns are highly competitive and pro-active. It has to do with the government noninterfering into the election process and limited timeframe for the campaign, during which the election participants aim at achieving the maximum results

The OPORA observers note lessening of the administrative resource impact on the election compared to the 2012 and absence of systemic interference into the election process on the part of state officials.

 The list of the most frequent violations committed by the candidates and parties is as follows: 1) violations of the campaigning rules (212 incidents), voter bribing (117), use of administrative resource (84), criminal interference into the election process (74), procedural ones (13), infringement of the official observers and journalists’ rights (4).

 During the election, the CEC has mostly been working consistently and openly. One of the major lines of the commission’s activities, among the traditional ones, was solving the issue of voting arrangements in the frontline territories of the Donetsk and Luhansk oblasts and ensuring voting rights of the citizens. The CEC has simplified the procedure of the temporary change of voting location for the internally displaced persons, provided explanations on the opening of election funds for the candidates nominating themselves in the conflict territories, the procedure for obliteration of ballots that will not be transferred to the conflict districts of Donbas by the voting day. For security reasons, the CEC has changed the meeting venues for certain DECs (ED # 45, 51, 53, 59, 104, 114).

During the work of the DECs, 1 723 member replacements took place and almost 46% of the commissions’ composition was replaced since their formation. According to OPORA’s calculations, 121 DEC heads, 126 DEC vice-heads, and 127 DEC secretaries (the number of each position category being 213) have been replaced. Composition of DECs in Donetsk and Luhansk oblasts has been replaced for more than 80 percent.

Formation of PECs mostly went without serious abuses and within the prescribed terms. OPORA notes a nonpublic manner of PEC formation in the districts of Donetsk oblasts that are partly or totally under control of the illegal armed groups. OPORA has additionally analyzed the directives of the DECs # 41, 43, 44, 55, 56 on forming PECs in conditions that have practically rendered full implementation of election subjects’ (election commissions, parties, candidates, official observers) rights and responsibilities impossible. In particular, the official copies of the directives of the DECs # 41, 44, and 45 published at the CEC web-site show that the meetings of these election commissions took place at Makiivka and Donetsk city occupied by the terrorist organizations. At the same time, the documents of the DEC #43 (Donetsk city) state that the commission meeting on PEC formation took place in Mariupil, yet the CEC has not taken a decision to change the DEC location. The uncertainty over the working venues of these DECs and the real format of their activities does not allow verifying the compliance of their decisions to the Law of Ukraine “On parliamentary elections in Ukraine”.

 19 205 more citizens as compared to the latest presidential election used their right of temporary changing their voting location without changing their permanent voting address. On 26 October 2014, 190 283 voters will vote away from their place of registration.

After the Law of Ukraine #1703-VII “On Making Amendments to the Criminal Code of Ukraine on Strengthening Responsibility for Violating Voting rights of the Citizens” has come into effect the OPORA observers note the increased activity of the law enforcement agencies. The week before the voting day the MIA and local government bodies have opened response centers for registering and responding to violations of voting rights. As of 23 October, according to the official MIA of Ukraine data, 227 criminal cases have been initiated. The largest number of cases is initiated in response to the infringement of voting rights (106 criminal cases) and hooliganism (48 criminal cases). 5 persons were notified of being suspected in committing a crime. 84 criminal cases deal with voter bribing, 32 – with physical injuries to the candidates campaigners and headquarters personnel.

ELECTION PROCESS SUBJECT ACTIVITIES

In October, the parties and candidates have to the full extent started their campaign activities in most regions of Ukraine using all traditional campaign methods: placing visual political advertisements, installing campaign-tents in crowded places, advertising in printed mass-media and on the TV, candidate meetings with voters, and national-level politician’s visits to the regions. Unlike the previous election, the political forces did not organize mass public events (meetings, demonstrations, pickets, concerts).

Compared to September, the campaigning activities of all high-rank political parties have significantly increased. Mainly this was through the intensive external and mass-media advertising. Street campaigning has also become more active – distribution of party papers and other printed materials from the tents.

The largest-scale campaigns were organized by “Petro Poroshenko Block”, “Batkivshchyna” All-Ukrainian Union Political party, “People’s Front” Political party and the Radical Party of Oleh Lyashko. These parties use all available forms of campaigning and maintain massive campaigning presence in 70% of electoral districts. “Civic Position”, “Strong Ukraine”, “Opposition Bloc”, AUU “Svoboda”, “Selfhelp” and “ZASTUP” were somewhat less active. The other active parties, whose campaigning was mostly performed on external advertising media and in the mass-media were “Right Sector”, the Internet Party of Ukraine, “The Bloc of Left Forces”, the Liberal Party of Ukraine, the Political Party “5.10”.

Ranking of the most active parties (October2014)[1]:

The main campaign struggle is happening among the majoritarian candidates and it overshadows the competition of parties in the nation-wide constituency. The use of the “coordinated candidate” status from the Maidan parties is the main technique employed by the single-member district candidates. Ending the war (peace and security), systemic reforms and people’s lustration are the most popular commitments of parties and candidates.

In spite of the persistently tense situation in the Eastern regions of Ukraine, election campaigning became active in Donetsk and Luhansk oblasts in October.

In Donetsk oblast, the political parties and candidates have started full-scale campaigns in the relatively calm single-member districts (ED № 46, 47, 48, 49, 50, 57, 58, 59). “Petro Poroshenko Block”, “People’s Front”, AUU “Batkivshchyna”, “Opposition Bloc”, “Strong Ukraine”, Radical Party of Oleh Lyashko, and AUU “Svoboda” run the most active campaigns. In Luhansk oblast, in the towns and districts controlled by the Ukrainian government, campaigning is large-scale and intensive. Especially popular slogans among the candidates nominating themselves in these districts are those of renewing peace (for example, “Together towards peace and consent” by Serhii Kliuev, “For peace and justice” by Yevgen Geller, “Peace and prosperity are only achievable with civil consent” by Viktor Topolov). At the same time, individual candidates openly use “campaign charity” (indirect bribing) as a usual method of ensuring voters support.

A negative feature of the election campaign in Donetsk oblast was lack of activities by the leading political forces aimed at direct communication with the voters in the region. In fact, none of the high-rank party leaders have visited the region during the election process period. Considering the wide-scale government de-legitimation that has happened in Donetsk oblast as a result of the military conflict, leaders’ ignoring the need of direct communication with voters creates additional societal risks.

Attempts of destabilization and election disruption on the part of the illegal armed groups are registered in Zaporizhia oblast, bordering on Donetsk oblast. In Zaporizhia, the SSU on a regular basis detains subversive groups aiming at socio-political destabilization.

In view of the election campaign growing intensity, the observers noted ever more frequent incidents of law infringement and various kinds of abuses on the part of all election process subjects during October. The most common ones included violations of campaigning rules, voter bribing and the use of administrative resource at the local level. Most frequently, such incidents happened in those districts where the major candidates were of equal rank (see the Table “The Districts with the highest level of candidate competition”). Severe competition between candidates is usually accompanied by public accusations in the use of administrative resource and voter bribing not always supported by the proofs. Also, candidates often use dirty campaigning and black PR against each other. This happens on a much larger scale compared to the presidential campaign of 2014. The incidents of destroying campaign materials and external political advertisements as well as candidate or campaigner intimidation became more frequent.

An indirect voter bribing presented by the candidates as charitable activities remains among the most popular methods of illegal campaigning by the single-member district candidates. The wide spectrum of “pre-election charity” includes road repairs, yard maintenance, building children playgrounds, fountains, gifts to doctors, endowments for educational and cultural establishments, book printing, and free invitations to sports events. The novelty of this campaign is the use of military and defense themes: material support to the military, organizing volunteering military units, preparing bomb-shelters, preparing civilians for defense activities under conditions of a military threat, etc.

The OPORA observers receive ever more information on incidents of voter bribing (including in money form) in individual single-member districts and on the probability of large-scale schemes of buying votes on the voting day and the day before.

The amount of hidden political advertising (“jeans” advertising) in the mass-media of various levels has significantly increased as compared to September. All of the most active parties use this kind of abuse and manipulation.

Civil Network OPORA’s observers revealed that a part of the candidates have ignored the direct requirement of the Law[2] and have not submitted (or have done so late) interim financial reports on income and use of the campaigning fund. Those reports that were submitted to DECs are often formal and do not contain all necessary annexes (so called “decipher”). Only 18% of the interim reports of the single-member district candidates are published at the CEC web-site.

However, the Civil Network OPORA observers have not detected large-scale violations that could significantly impact voting results in October. After the teleconference held by the MIA with participation of the Civil Network OPORA that took place on 21 October the leaders of the local law enforcement agencies have assured their readiness to immediately respond to all election process violation reports.

Campaigning Activities of the Election Process Subject Parties Ranking of parties’ campaigning activities by various types of advertising

(October 2014):

“Petro Poroshenko Block” Party

“Petro Poroshenko Block” Party runs the largest-scale campaign, extensively using external advertising media. Individual campaigners and street tents distribute printed materials at district level. Direct communication with voters is also practiced, particularly in the form of mobile groups visiting remote settlements. Leading national constituency candidates as well as other V.I.P campaigners (Viktor Pynzenyk, Oksana Prodan, Iryna Lutsenko) actively participate in advertising activities. Local media regularly publish materials with advertisements of the “Petro Poroshenko Block”.

“Batkivshchyna” All-Ukrainian Union

AUU “Batkivshchyna” combines external, mass-media and street advertising as well as direct work with voters. The party has spread the wide network of tents in most district capitals and actively employed volunteers for distribution of party papers and leaflets. In advertising tents they continue collecting signatures in support of the referendum on Ukraine’s joining NATO. AUU “Batkivshchyna” employs the “door-to-door” campaign strategy for communication with voters, where election headquarters representatives talk to voters in the streets and at their house doors. There is a lot of external advertising (billboards) displaying the number one candidate in the party-list Nadia Savchenko as well as billboards with the image of Yulia Tymoshenko.

The Party “People’s Front”

“People’s Front” Political party uses external (billboards and city-lights) and street (tents and distribution of printed advertisements) advertising and somewhat less the direct work with voters. The party’s political advertising is actively running in the local mass media.

Radical Party of Oleh Lyashko

Most of all, the party uses mass-media and street advertising (advertising tents where printed materials are distributed). Also, advertisements are extensively placed on external media. Single-member district candidates actively work with voters directly.

“Civic Position” Party of Anatolii Grytsenko uses all traditional forms of campaigning. The most massive-scale campaign is running via external advertising and street tents down to the district capital level. The least used is political advertising on the TV.

“Strong Ukraine” Political Party mainly runs mass-media and external advertising as well as distributes printed materials through the network of street campaigners.

All-Ukrainian Union “Svoboda” Party is, overall, less active than at the previous parliamentary election. The AUU “Svoboda” mostly uses external and street advertising as well as direct work with voters. In western and central oblasts of Ukraine there is an extensive network of advertising tents placed in most district capitals. Political advertisements in mass media – although present – is not extensively used.

The All-Ukrainian Agrarian Union “ZASTUP” and the party “Right Sector” use visual advertising as well as – not too extensively – distribute printed materials through the network of street campaigning tents. The Party “The Union “Selfhelp” extensively uses external advertising and, in some regions, runs street advertising and distributes the party paper. The Political Party “Opposition Bloc” uses external and mass-media advertising and places tents in eastern and southern oblasts of Ukraine, where they distribute their printed campaign materials. The “Ukraine of the Future” Party, the Liberal Party of Ukraine, “5.10”, and the Internet Party of Ukraine run their campaigns predominantly via external advertising media.

Candidate Activities in Single Member Districts

After the pre-election calm period in September, the majoritarian candidates have invigorated their campaigns this month. In every district, there are 3-4 candidates, who run detectable election campaigns and whom one may consider real contenders for the deputy’s mandate. The rest, as a rule, perform technical functions of various kinds – either in advertising or by influencing election commissions. Overall, the nominees from “Petro Poroshenko Block”, “People’s Front”, AUU “Batkivshchyna”, “Selfhelp”, Radical Party of Oleh Lyashko as well as self-nominated candidates (among which the most prominent ones are ex-deputies of the Party of Regions) are the most active. The most active majoritarian candidates use all forms of communication with voters: external, mass-media, and street advertising as well as direct work with voters. Most of the single member district candidates focus on street campaigning, and direct work with voters that often looks like indirect voter bribing and is accompanied by use of administrative resource.

There are districts within each oblast, where the level of competition between candidates is extremely high, that can provoke parties and candidates to practice all sorts of illegal manipulations or abuses.

Only 181 candidates have deliberately withdrawn themselves submitting corresponding applications to the CEC. The majority of the candidates (111 persons), whose registration was cancelled are self-nominees that did not demonstrate any observable campaign activities. Among party-nominated candidates 18 nominees from the “Opposition Bloc” and 11 from “Strong Ukraine” withdrew.

VIOLATIONS STATISTICS

As of October 23 observers from Civil Network OPORA registered 502 cases of violating electoral legislation by candidates and parties who are subjects of the election process. The largest number of such incidents (212) is related to violations of campaigning. The second largest group is voter bribery – 117 cases. A little less number of election misuse cases is related to use of administrative resources (84 cases) and force methods of influencing the election process (74 incidents).

Violation of campaigning rules

Among all violations of campaigning rules, dissemination of campaigning materials without proper labelling[3] is the most common misuse by all the most active subjects of electoral process (“Opposition Bloc”, “Civic Position”, AUU “Svoboda”, Liberal Party of Ukraine, “People’s Front”, “Selfhelp”, AUU “Batkivshchyna”, Radical Party, “Petro Poroshenko Block”, Internet Party of Ukraine, “Left Forces Block” and self-nominated candidates). 76 such cases were registered in Volyn, Chernihiv, Odesa, Kherson, Luhansk, Zakarpattia, Ivano-Frankivsk, Zhytomyr, Sumy, Ternopil, Kirovohrad, Dnipropetrovsk, Chernivtsi oblasts and Kyiv city. According to part 23 article 74 of the Law «On parliamentary elections in Ukraine» it is forbidden by express law to produce and distribute printed campaigning materials that contain no information about ordering client, publishing house that printed the materials, circulation, information about persons responsible for publication. Similar cases bear signs of political corruption and prove that candidates and parties spend money beyond their electoral funds. According to the most recent amendments to the Criminal Code, distribution of campaigning materials that is not paid by the electoral fund shall be punished by custodial restraint for the period up to three years (Article 159-1).

Other regulative violations of campaigning rules that were registered by civil observers were placement of campaigning materials in forbidden places: public transport, architectural monuments, on buildings and in premises of municipal and state institutions, on lamp posts. In total there were registered 46 such incidents in 12 regions (mostly in Sumy, Zaporizhia oblasts and Kyiv city). For instance, in violation of rules of providing public amenities, party “5.10” continues to paint numerous pavements and walls of buildings in different regions.

Dirty campaigning and black PR is a one more illegal method of campaigning popular among candidates. In 13 oblasts of Ukraine there were registered 41 such cases – mostly in Kharkiv, Zaporizhia oblasts and Kyiv city. Objects of discreditation are usually “Strong Ukraine”, candidates from “Petro Poroshenko Block”, “People’s Front”, Radical Party and self-nominated candidates. For example, in Dnipropetrovsk oblast (ED No. 34) posters were distributed with depiction of a self-nominated candidate (soldier of “Dnipro-1” battalion) Artem Kravchenko saying “I AM A FASCIST”. It is forbidden by express law (item 10 Article 74 of the Law «On parliamentary elections in Ukraine») to distribute inaccurate or scandalous information about parliamentary candidates. Such actions are administrative offence pursuant to article 212-10 Code of Administrative Offences.

Voters’ bribery

Most frequently candidates used bribery in the form of providing voters, institutions, organizations with goods, services, work, lotteries and other non-monetary values on free of charge basis or on privileged terms – which is classified as indirect voters’ bribery. 101 such incidents were registered in 20 oblasts of Ukraine, mostly in Odesa, Kharkiv, Chernihiv, Cherkasy, Kirovohrad oblasts and Kyiv city. In the majority of cases such misuse (70 %) was done by self-nominated candidates. Among all party candidates, indirect voters bribery was mostly used by representatives of “Petro Poroshenko Block”, “People’s Front”, “Strong Ukraine”, “Batkivshchyna” and “ZASTUP”.

The closer the day of elections, the more cases are registered related to attempts of monetary bribery of voters. Thus, electioneerers claiming to represent a self-nominated candidate Oles Dovhyi - (ED No. 102) visit elector’s homes and collect signatures of electors who agree to vote for O.Dovhyi in exchange for UAH 200. Money is promised to be paid after the day of elections and only after showing a photo of bulletin with a tick put opposite this candidate. Similarly, persons representing a self-nominated candidate Mykhailo Poplavskyi (ED No. 101) offer UAH 300 to those who votes for M.Popolavskyi on October 26. Those who agree are being put on the list. Money is promised to be paid after the day of voting. Such actions have elements of crime, namely: offer, promising or providing a voter with an illegal benefit for making or no actions related to immediate realization of their voting right (p.2 article 160 CC of Ukraine) and shall be punished by custodial restraint or imprisonment for the period up to three years.

There is no reducing tendency in the number of cases of providing goods or services by candidates on free of charge or privileged terms, namely – military equipment (Ivan Fursin, a self-nominated candidate in ED No. 138), apartments (Leonid Baisarov, a self-nominated candidate in ED No. 50), household goods (Oleksandr Presman, a self-nominated candidate in ED No. 139), food products (Riisa Mykhailova, “Sylna Ukraina”, ED No. 219; Vladlen Girin, a self-nominated candidate in ED No. 182).

The activity campaigning charity funds is considerably less extensive than at the parliamentary elections in 2012. OPORA observers discovered 14 cases of charity funds’ activity aimed at campaigning purposes in 12 oblasts of Ukraine: “DAR” charity fund (Dmytro Reva, a self-nominated candidate, ED No. 46); fund related to Yurii Solod (“Opposition Bloc” ED No. 47); “Volyn Patriots” fund (a self-nominated candidate Stepan Ivahiv, ED No. 21); Fund by Oles Dovhyi (a self-nominated candidate, ED No. 102); Charity Fund of Oleksandr Volkov (“Petro Poroshenko Block” ED No. 81).

Although the law envisages no restrictions for charity activities during election period, campaigning in such a form is strictly classified as indirect voters’ bribery (pursuant to part 14 article 74 of the Law of Ukraine «On parliamentary elections in Ukraine»). And pursuant to the new provisions of the Criminal Code, such criminal actions shall be punished by imprisonment for the period up to seven years (article 160 CC of Ukraine).

Administrative resources

At the extraordinary elections, application of administrative resources has no systemic or planned character and is restricted to individual cases of misuse at the level of local municipal authorities and local government bodies. A specific characteristic of using administrative resources is that is it simultaneously used by different subjects of election process, who are close to government institutions.

Registered cases of misuse of administrative resources are mainly restricted to illegal participation of officials in campaigning (27 cases in 14 oblasts of Ukraine) and to using premises of government bodies for campaigning (23 cases in 11 oblasts of Ukraine.)

Most frequently the officials illegally joined participation in campaigning in Kharkiv, Volyn, Chernivtsi oblast and Kyiv city. For instance, in ED No. 172 posters were distributed in which Kharkiv city mayor Gennadiy Kernes was campaigning for a majoritarian candidate Anatoliy Denysenko. And in ED No. 168 via similar campaigning posters the official G.Kernes was supporting a self-nominated candidate Valeriy Pysarenko. Head of Ivano-Frankivsk Oblast Council Vasyl Skrypnychuk at the festive town’s meeting on October 14 was campaigning for a self-nominated candidate Petro Shkutiak.

The largest number of cases of placing campaigning materials in premises of public authorities and/or use of public authorities premises for campaigning purposes was registered in Kharkiv, Odesa and Kherson oblasts. In addition to self-nominated candidates, such misuse was also applied by representatives of parties “ZASTUP” (Mykolaiv and Dnipropetrovsk obl.), “People’s Front” (ED No. 69), AUU “Svoboda” (Rivne oblast), “Selfhelp” Party (ED No. 217), Radical Party (Volyn, Chernivtsi oblasts).

Also there were detected 19 cases of using material and human resources for campaigning purposes in state and municipal bodies. The largest number of incidents was registered in Kherson oblast. And in Zaporizhia oblast, for instance, Semen Semenchenko (“Selfhelp”) held his meeting with electors in premises of Zaporizhia Oblast State Administration.

Methods of force in the election process

One of the principal features of force (criminal) methods in the election process is property damage and damage to campaigning materials. In total there were 55 such cases registered in 15 oblasts of Ukraine. The majority of them took place in Kуiv city, Zakarpattia and Chernivtsi oblasts. The most frequent victims of such illegal actions were “People’s Front”, “Strong Ukraine”, AUU “Batkivshchyna”, Radical Party, “Civic Position”, “Opposition Bloc”.

Considerably more serious by their consequences and effect on election process are attacks on candidates, parties’ activists and observers. We are aware of 11 such incidents in 9 oblasts of Ukraine. In particular in Uzhgorod an agitator for “Petro Poroshenko Block” Andriy Grab suffered bodily blows. In Kyiv (ED No.) OPORA observer was attacked during meeting with electors of a self-nominated candidate Victor Kondratenko. In Kharkiv oblast the unknown set on fire a car of an agent of a self-nominated candidate Serhii Kuzan (“People’s Front”). In accordance with the new provisions of the Criminal Code such actions shall be punished by custodial restraint or imprisonment for the period from two up to five years (part 2 article 157 CC of Ukraine).

RECOMMENDATIONS

To political parties and candidates:

• Make maximum organizational efforts to close the door upon delegitimization of election process in Donetsk and Luhansk oblasts;
• Refrain from uncompetitive and unfair campaigning methods and in no case use illegal ways of effecting election process and votes calculation;
• Promptly supply DEC with interim financial reports on receipt and application of electoral funds money and ensure timely submission of final financial reports.

Officials of public and municipal authorities:

• Adhere to impartiality principle and ensure equal conditions for conducting campaigns for all candidates and parties. Guarantee conducting fair and competitive elections.

Law enforcement agencies:

• Promptly counteract and prevent any attempts to hinder execution of electoral rights, using available additional opportunities for detecting and registration of electoral legislation violations (pursuant to amendments to the CC of Ukraine).

Activities of Central Election Commission during special elections

Activities of the Central Election Commission

During October 2014 the CEC issued 610 resolutions concerning the organization of special parliamentary elections in Ukraine. The main objectives of the Commission during this period included:
1) revocation of registration of candidates based on their waiver of participation in elections;
2) registration / revocation of registration of authorized representatives of candidates / authorized persons; 3) changes in composition of DEC and the approval / amendments to consolidated estimates of expenditure of DEC. At the same time CEC has registered 34 observers from foreign states and 2 017 observers from international organizations.

One of the most important areas of activity of CEC was the resolution of problems of the electoral process in Donetsk and Luhansk oblasts. In particular, the Commission has decided to release the voters in these regions from responsibility to provide the documents confirming the need for a temporary change of their place of voting when referring to the State Voter Register maintenance body[4]. In addition, CEC has adopted Clarification on opening the electoral fund accounts of candidates for people's deputies of Ukraine registered in single-member districts of Donetsk and Luhansk oblasts, taking into consideration the specifics of activity of banking institutions in these regions[5]. Given the objective impossibility of transferring the ballots to some of PEC in these regions, CEC has adopted Clarification on cancellation of ballots for special parliamentary elections in Ukraine to be held on October 26, 2014 in single-member districts established within Donetsk and Luhansk oblasts, which were not handed over to District and / or Precinct Election Commissions[6].

In order to create safe conditions for the functioning of DEC in the Donetsk and Luhansk oblasts, CEC has adopted a number of decisions regarding the change of address of facilities of District Election Commissions for the period of preparation and holding of special parliamentary elections. Basically, we are talking about the transfer of place of activity of DEC from the cities or towns, which are located in military action zone, to peaceful cities (villages) in the same district. Having taken into account the applications of Donetsk and Luhansk regional state administrations, CEC changed the addresses of facilities of DEC №45, 51, 53, 59, 104, 114. Moreover, CEC has revised the addresses of DEC №45, 59 (Donetsk obl.) twice. Place of activity of DEC №45 was moved to the center of totally different district, namely, to the city of Slovyansk. CEC did not change the boundaries and centers of single-member districts, which is prohibited during the election process in accordance with part three of Article 18 of the Law of Ukraine “On Elections of People's Deputies of Ukraine”. These innovative decisions of CEC, aimed at supporting the activity of DEC in troubled regions, result from prior refusal of Ukrainian parliament to authorize CEC to revise the centers of single-member districts.

At the same time, CEC did not pay enough attention to informing participants of electoral process and the general public about the organization of voting in those districts of Donetsk and Luhansk oblasts, which are totally or partially under the control of illegal armed groups. Lack of proactive problem management on the part of CEC contributed to nonpublic activity of DEC in these districts.

Activities of District Election Commissions

In the special parliamentary elections in Ukraine CEC has created 213 District Election Commissions (hereinafter - DEC) in all regions of Ukraine, with the exception of the Autonomous Republic of Crimea and Sevastopil City[7]. Due to the legal recognition of AR Crimea and Sevastopil City as temporarily occupied territories[8] the activities of DEC could not be organized in 12 single-member districts (SMD № 1-10, 224-225). Given the lack of a similar legal status of certain districts of Donetsk and Luhansk oblasts, the cities and towns in which are de facto under the control of illegal armed groups and terrorist organizations, CEC has created DEC in these problematic cases as well. Due to distinctions of the special parliamentary elections, composition of DEC includes only members of those political parties that have factions in the current convocation of the Verkhovna Rada of Ukraine and also those political parties that had nominated their candidates to run in the national election district during regular election in 2012[9].

Rotations in the composition of DEC

As many as 1723 replacements have been made in the composition of DEC since their creation, mostly by means of making submissions to the CEC to replace the member of DEC by the political party, upon the submission of which such member was earlier included in the commission. Thus, the composition of all DEC has been renewed by nearly 46% from the date of creation of corresponding commissions[10]. According to the calculations of OPORA, 121 heads of DEC, 126 deputy heads of DEC, 127 secretaries (whereas the total number of each of these categories of posts equals 213) have been replaced[11] over the period from 05.09.2014 to 22.10.2014.

Significant rotations in the composition of DEC did not lead to serious problems in the election process, except DEC in Donetsk and Luhansk oblasts. At the same time replacement of nearly 50% of members of DEC reduced the effectiveness of the efforts of the CEC in terms of training the members of the commissions, since a large part of them were removed from office.

Rotations in the composition of DEC in Donetsk and Luhansk oblasts

The composition of DEC in Donetsk and Luhansk oblasts has been renewed by more than 80%. Some of DEC in these regions have already experienced rotations in the newly formed composition of commissions. In particular, 28 rotations were made in DEC №52 (Donetsk obl.), more than 20 rotations were made in DEC №49, 59 (Donetsk obl.) while each commission is limited to the maximum of 18 members. More than 15 changes have taken place in the composition of DEC №104, 105, 106, 112, 113 (Luhansk obl.).

Unstable political and security situation in the Donetsk and Luhansk oblasts lead to mass refusal of members of election commissions to exercise their powers and obligations. At the same time, large-scale rotations in DEC of Donetsk and Luhansk Oblasts were partly linked with non-public agreement between the political interests of the different actors of the electoral process. In some cases, intensive rotations in the composition of DEC were accompanied by statements of some participants of electoral process on unlawful pressure and imbalanced representation of different political forces in the commissions of troubled regions. For example, self-nominated candidate in DEC №49 (Donetsk obl., Kostiantynivka) Valery Panasovskyy[12] launched a hunger strike as a mark of protest against the replacement of members of the DEC prior to the election (CEC terminated the powers of 6 members of DEC №49[13] on 20.10.2014). At the same time, the Municipal Department of MIA of Ukraine in the city of Syevyerodonetsk, Luhansk oblast, gathered several complaints from members of DEC № 106 who received telephone threats from unknown persons.

OPORA observers recorded signs of nonpublic majority in DEC № 47 (Donetsk obl., Slovyansk) and in DEC №59 (Donetsk obl., Mar’yinka) [14].

Lack of motivation of members of DEC in Donetsk and Luhansk oblasts to exercise their powers and obligations, security concern and heightened political tensions have destabilized the work of corresponding commissions greatly. These circumstances require responsible attitude from electoral subjects towards ensuring the steady work of their representatives in election commissions. Meanwhile, law enforcement authorities are required to demonstrate their readiness to guarantee safe conditions of work of DEC in Donetsk and Luhansk oblasts, avoid unlawful interference of third parties in their work, and ensure adequate protection of members of DEC and facilities of corresponding commissions.

Replacements in the composition of DEC by region: as on 22.10.2014

(in terms of number of replacements in descending order)

Rotations in the composition of DEC in stable regions

Rotations in composition of DEC in regions with stable security situation were less intense, compared to Donetsk and Luhansk oblasts, but still the number of rotations here was also significant. The composition of DEC in Odesa, Kherson, Kirovohrad, Kyiv and Dnipropetrovsk oblasts was renewed by more than 50%. The most stable composition of DEC remained in Ternopil, Ivano-Frankivsk, Zhytomyr and Poltava oblasts.

The composition of 213 DEC, created during special parliamentary elections in Ukraine, most frequently experienced replacements of representatives of political parties "The Our Ukraine", "UDAR" of Vitaliy Klychko, "Greens", Ukrainian Platform "Sobor" and the Party of Regions.

Replacements in the composition of DEC by subject of nomination of members of corresponding commissions:
as on 22.10.2014 р.

The activities of DEC on the formation of PECs

According to the Calendar of the electoral process [15], during October 2014 the DECs had to undertake a number of measures to organize the voting process: 1) to form the PECs (until 10.10.2014 including); 2) to receive the ballots from the CEC (from 19.10.2014); 3) to register the official observers from parties and candidates in single-mandate districts, NGOs on the basis of applications received by 20.10.2014 including; 4) to deliver ballots to PECs (from October, 23 until October, 24 including). Furthermore, the DECs had to provide to CEC a copy of the interim financial report on the receipt and use of election funds of MP candidate [16] in order to publicize it on the Commission website and to approve the analysis of interim reports.

Upon the whole the process of formation of PECs was held without any significant violations and in compliance with the terms established by the law, except for commissions that were formed in unstable regions (see. Detailed report on the formation of PECs [17]). According to OPORA, DECs № 46, 47, 48, 49, 50, 57, 58, 59 (Donetsk obl.), № 104, 106, 107, 112, 113, 114 (Lugansk obl.) formed the PECs, but with significant delay.

OPORA reports limited access of public to the process of PECs formation in those districts of Donetsk region, which are totally or partially controlled by illegal groups. Under the prevailing circumstances of access absence of observers and candidates to the PEC meeting that is organizing the voting process in problematic districts, the principle of equality of conditions and opportunities of the electoral subjects in this case could not have been achieved in full.

The formation of PECs in districts that are completely or almost completely controlled by illegal armed groups

Thus, it was found that the decisions of DEC № 41,43,44, 55, 56 on PEC formation under the circumstances which practically made full implementation of the rights and responsibilities by the electoral process subjects (election commissions, parties, candidates, official observers) impossible. In particular, official copies of DEC № 41, 44, 55 resolutions, promulgated at the CEC website, certify that the meeting of the election commission took place in Donetsk and Makiivka cities, occupied by terrorist organizations. At the same time, the document DEC № 43 (Donetsk city) states that the commission meeting on PEC formation was happening in Mariupol, thereby the CEC did not make a decision to change the address of current DEC.

OPORA states that the uncertainty of workplace of DECs (№ 41, 43, 44, 55, 56) and the actual size of their work does not allow recognizing made decisions in correspondence with the Law of Ukraine “On Elections of People's Deputies of Ukraine”. Nevertheless, published on the website of CEC decision on the establishment of PEC in these districts does not allow us to determine the number of PECs, which are established for the voting process. Only resolution of DEC № 44 indicates that the district has formed 9 PECs, whilst these commissions are to operate on the territory controlled by illegal formation of Petrovsky district, Donetsk city.

The above mentioned circumstances require from the CEC an immediate disclosure of complete information on the voting preparation in Donetsk and Luhansk oblasts districts, which are fully or partially under the control of illegal armed groups. Transparency and openness ensuring of organizational measures in problematic districts must protect the electoral process from manipulation and use of emergency security situation in the interests of certain parties and candidates.

Violations in DEC activities

With the exception of Donetsk and Luhansk oblasts, DEC activities were seen as stable, without any major violations of the Law of Ukraine “On Elections of People's Deputies of Ukraine”. Instead there were reported few cases when DECs and members of the relevant committees failed to comply with national regulations.

Example given, a member of the DEC № 197 (Cherkasy obl.) undertook public appeals, discouraging to vote for a particular candidate. DEC № 177 (Kharkiv) did not provide a full possibility for official observers to get acquainted with the content of decisions. At the same time, DEC № 139 (Odesa obl.) took an illegal decision on the rejection of the nomination to PEC from the candidate Dmitry Pyestruyev, which was established by court. DEC № 166 (Ternopil obl.) violated the legal requirements to publish their decisions on the stand. Few incidents of missing PEC seals, which were deposited in DEC had a place in DEC № 199 (Cherkasy obl.) and number 107 (Luhansk obl.). Meanwhile DEC № 157 (Sumy obl.) did not receive adequate funding. Violations of DEC were not systemic and in most cases are procedural.

PEC activities

For the Early Parliamentary Elections Ukraine PEC consisted of 10-14 people - small polling stations (up to 500 voters), 12-16 people - for medium polling stations (from 500 to 1 500 voters) and 14-18 people - for large polling stations (more than 1500 voters). At the polling stations where the number of voters does not exceed 50 persons, PEC can be formed with a chairman, a secretary and 2-4 members.

The right to nominate person to PEC (1 candidate for each PEC) was given to:

• political parties, factions of which have been registered in Verkhovna Rada of Ukraine of the current convocation (“UDAR”, AUU “Svoboda”, Party of Regions, AUU “Batkivshchyna”);
• political parties - electoral process subjects, candidates from which are registered in the nationwide district (in total: 52 parties);
• MP candidates in the respective single-mandate district. .

DEC had to create a PEC until October, 10 including, while PEC had to hold its first meeting no later than on the third day after their formation.

Significant rotations were typical problem for Ukrainian elections in PEC activity. For instance, in district № 117 (Lviv obl.) on the second day of the PEC functioning Political Party “Agrarian Union “ZASTUP” made request for 96% replacement of its representatives in these commissions. Whilst, in distract №129 (Mykolaiv) within 7 days political parties and candidates have made 450 submissions to replace their members of PEC. The most unstable is the composition of PEC in Donetsk and Luhansk oblasts, because of the exceptional social, political and security conditions in these regions. In particular, in district № 112 (Luhansk obl.) only 12 of the 105 PEC began their practical work.

At a large scale PEC acquainted citizens with the previous list of voters and delivered voters invitations.

CONCLUSIONS

• The activities of election commissions at all levels in general complies with the law and ensures implementation of basic organizational measures on voting preparation for Early elections October 26, 2014. At the same time, the functioning of electoral commissions in Donetsk and Luhansk oblasts is difficult due to the extreme political and security situation;
• Rotation in the district and precinct election commissions, except Donetsk and Luhansk oblasts, do not cause disruptions in commission functioning. However, large-scale replacement of the election commissions’ composition reduces the effectiveness of CEC and DEC efforts to train members of election commissions;
• Non-transparency of organizational measures on voting preparation in some districts of Donetsk and Luhansk oblasts entails risks of using emergency security situation in the interests of certain parties and candidates. Under the circumstances of uncertainty of election commissions’ format of work in these districts it is difficult for Ukrainian state to guarantee the principle of equal rights and opportunities for all participants of electoral process.

РRECOMMENDATIONS

Central Election Commission

• Promptly inform the general public about the progress of polling preparations in Donetsk and Luhansk oblasts, especially in districts that are wholly or partly controlled by illegal formation;
• To ensure disclosure of all reports on the website of CEC regarding interim financial statements of the receipt and use of the candidates funds in single-mandate constituencies.

Law enforcement officials

• Ensure proper security of election commission premises and its documentation;
• Effectively respond on information regarding intimidation of election commissioners;

Political parties - electoral process subjects and MP candidates

• Refrain from interfering in the work of election commissions and ensure efficient operation of their representatives in DECs and PECs.

ACTIVITIES OF STATE VOTER REGISTER BODIES

As in September 2014 OPORA observers have analyzed the activities of Register Maintenance Bodies (hereinafter - RMBs) regarding their willingness to perform duties in accordance with the Law of Ukraine “On the State Register of Voters”, “On Elections of People's Deputies of Ukraine”. The RMBs have power of periodic updating and refinement of personal data in the Voters Register, preparation and transmission of preliminary and revised voter lists to precinct election commissions, enabling a temporary change of voting place without changing polling address etc.

According to OPORA, RMBs didn’t have any violations in the performance of their duties, ensuring adequate access for voters on clarification of personal data or temporary change of voting place without changing the polling address. In the meantime informing of citizens about the possibilities of the State Voter Register, the need for clarification of voters personal data in the Register, procedure of changing temporally voting place without changing the polling address as a general were carried by RMBs passively.

Prior to October 20, including citizens had the opportunity to apply to the departments of RMB with the claim of temporary change of voting place without changing the polling address. Taking into account the factor of internal migrants, this procedure of electoral rights ensuring has drawn considerable public attention.

The number of voters who temporarily changed their polling place in the context of Early Parliamentary and Presidential elections in 2014

According to CEC, out of 190 283 persons the number of people who changed the polling place is: in Donetsk oblast – 21 704 persons, Dnipropetrovsk – 15 040, Lviv – 14 715, Kyiv – 11 213 and in Luhansk oblast – 11 119 persons.

WORK OF THE LAW INFORCEMENT AGENCIES AND COURTS

Role of the law enforcement bodies (militia, Security Service of Ukraine (SSU) and Prosecutor’s Office) is crucial in terms of preventing crime against electoral rights, ensuring public order and observing the principle of inevitable punishment for committing crime. In September 2014 in accordance with the decision of the interagency meeting under the National Security and Defense Council of Ukraine (NSDCU) operational headquarters have been established to record and fight against violations and ensure safety measures during elections. The headquarters started operating at the Ministry of Internal Affairs and on the local level. OPORA observers report that headquarters became more active one week before Election Day.

Selector meeting took place on October 21 chaired by the Minister of Internal Affairs, Arsen Avakov, with participation of the representatives of SSU, General Prosecutor’s Office, relative agencies on the ground and Civil Network OPORA coordinators from all the regions of Ukraine. The following issues have been discussed during the meeting: application of the Law of Ukraine №1703-VII “On introducing changes to the Criminal Code of Ukraine on strengthening accountability for violation of electoral rights”, cooperation between law enforcement agencies and OPORA civic observers, performance of the militia on the ground, as well as necessity to inform the citizens about cases connected to the electoral process.

As of October 23, according to the official data from MIA of Ukraine, 227 criminal proceedings have been opened. The largest number of violations has been recorded and taken under control of militia in Kyiv city, Chernihiv, Kharkiv, Zaporizhia, Odesa, Kyiv, Cherkasy and Zhytomyr oblast. Most of the cases are opened on the issues of obstruction of electoral rights (106 criminal proceedings), hooliganism (48 criminal proceedings). 5 people received notification with suspicion of committing a crime. 84 criminal proceedings have been open on voters’ bribing, 32 – on causing bodily injuries to candidates, campaigners and election headquarters staff.

According to the laws of Ukraine electoral arguments are jurisdiction of the Administrative Courts, proceedings under this category of cases are carried out based on the Code of Administrative Procedure of Ukraine. The courts followed the principle of holding proceedings within a reasonable timeframe. Court practice has a positive impact on the compliance with the legislation on elections of all electoral subjects.

During the time of the election process of special elections of MPs of Ukraine till October 20, 2014 Register of Court Decisions received significant number of judgments. About half of them are procedural decisions in the form of decisions to institute criminal proceedings, to complete preparations for the review, to leave the claim without consideration etc.

Considerable number of cases dealt with by local courts as administrative have to do with updating voter lists, namely inclusion in the lists of voters, far less complaints are regarding the exclusion of people from the voter lists, and on the presence or absence of the notification “UMI” (unable to move independently) on the list. Large share [18] comprise decisions by Kyiv Administrative Court of Appeals based on the consideration of claims filed to CEC appealing the decisions on registration or refusal to register MP candidates, as well as decisions of the Higher Administrative Court based on the results of appellate review of such cases. Some of them have gained public attention.

Separate category of cases reviewed by the courts during election process is public and private arguments on admission of violation of campaigning rules. In particular it’s worth separating category of indirect bribery, campaigning with violation of financing rules and spread of false information by the candidates. Based on the court’s ruling CEC announced warnings to candidates Medvid V. [19] (declared illegal actions of candidate Medvid V. on production and distribution of printed campaign materials without providing information about the customer of the printed election campaign materials) and Zubriy D. (for indirect voters’ bribery established by court decision).

Nevertheless, the attention should be drawn to the uneven approach of the courts towards establishing the facts of indirect bribery. In particular in the decision[20] the court did not recognize the fact of providing voters with goods at reduced prices, accompanied by campaigning for a particular candidate as indirect voters’ bribery.

Also one of the problems of law enforcement practice is laws of Ukraine not providing clear definition of voters’ fraud. This way art.6 of the Law of Ukraine “On elections of People's Deputies of Ukraine” prohibits to use fraud that prevents free expression of voter’s will. Nevertheless the courts usually don’t see false information provided by the candidates to pose obstacles for free expression of voter’s will. For example, the decision in the cases on recognizing as fraud information presented in mass media by one of the candidates saying that he did not vote for the "dictatorial laws" (despite the fact that information about him voting for the laws on January 16, 2014 can be found on the official website of Verkhovna Rada), the court states that despite the fact that information provided by a candidate is incorrect, it does not prevent free expression of voter’s will. According to the court, voter’s will is formed among other things on the basis of information which leads voter not to vote for a certain candidate. Thus the Court believes that the candidate plaintiff has power to influence the will of voters himself by means of refuting false information submitted by other candidate.

In accordance with Clause 2.1 of the Resolution №15 of the Plenum of the Higher Administrative Court of Ukraine “On the practice of administrative courts in the application of the Code of Administrative Procedure of Ukraine in disputes regarding legal aspects of electoral process” as of 11.01.2013, only a dispute concerning refusal (evasion) of mass media to publish a response to false information, publicized earlier, can be regarded as an electoral dispute and such a dispute is subject to legal investigation under administrative procedure, but at the same time it is impossible to determine false information [1] in electoral matters under administrative procedure. Obviously, it is necessary to improve the relevant provisions of the Law of Ukraine “On Elections of People's Deputies of Ukraine” in order to change judicial practice.

The register has a number of decisions relating to appeals against actions of officials of state and local governments, including actions in connection with the agitation in favor of certain candidates. In particular, the court laid Sumy Regional Council under an obligation to remove from its official site the interview with the head of Sumy Regional Council in which he declares his support for a certain candidate for people's deputies of Ukraine. However, a number of courts in their judgments based on analysis of public support of officials for certain candidates take the position of not recognizing propaganda in the fact of statement of personal attitude to the candidate for deputies as a private individual, if there is no direct appeal to vote for a particular candidate for MP in the statement.

With ever increasing frequency the courts consider the cases concerning appeal of mass media actions. Thus, the coverage of results of the survey without reference to the ordering party, timing, coverage area, size and method of forming a sociological survey sampling, survey methods, the exact formulation of the questions and possible statistical error by TV and radio company in its “News” program was recognized as a violation of the election law [3], while the argument of the broadcasting company about the technical impossibility to provide all this information was found unacceptable.

Judicially recognized as unlawful decisions, actions or inaction of district election commissions and members of these commissions. In particular, judicially Kyiv District Administrative Court in form of separate decision ruled as violation of the oath the actions of the Deputy Chairman of DEC 93 [21] electoral district, Vitali Kutsenko. Additionally large category of cases deals with appeals against decisions of DEC on refusals to register PEC members and official observers. This way, by the decision of Kyiv District Administrative Court the party “Petro Poroshenko Block” was partially denied the claim[22] on illegal actions of DEC № 93 – according to which commission did not register submission of candidates to be members of PEC from this political force.

Observers of Civil Network OPORA also have been subjects of filing [23] administrative claims. They were mostly about refusal to register official observers.

ANNEX

Electoral districts with the highest level of competition and proneness to conflict:

Most active candidates on single mandate electoral districts within oblast: