CIVIC NETWORK OPORA OBSERVATION REPORT,OCTOBER – NOVEMBER 2016

Civic Network OPORA is performing observation of the first local election in 185 merged territorial communities. Voting days are scheduled for 11 and 18 December 2016. OPORA’s independent observation covers all stages of the election process and includes cooperation with the law enforcing authorities on preventing and revealing election violations as well as on statistics collection and analysis for the first local elections in merged territorial communities.

In the territorial communities, where the voting day is scheduled for 11 December, the election process has started on 22 October 2016. In those communities, where the voting day is scheduled for 18 December, the election process has started on 29 October 2016. This OPORA report includes evaluation of the quality of election procedures and the overall election campaign; it was performed by OPORA’s official observers in October-November 2016.

SUMMARY

OPORA observers note an uncharacteristically low level of pre-election activities on the part of both potential candidates (parties) and already registered election participants. Over October-November, there were only episodic instances of election legislation or democratic standards violations.

The ongoing election campaign is marked by public conflicts and confrontations (including those in the form of lawsuits) between supporters and opponents of the territorial communities’ merger. Such activities are mostly initiated by public activists, representatives of local governments, local deputies, and political parties’ local organizations.

There are recorded instances of violating the procedure of arranging candidate nomination meetings in the part of timely informing TECs and Media about the date and venue of the meeting.

Local government top officials – village, town and city heads – were the most active in nominating themselves as candidates for the first local elections in merged territorial communities. Also, participants of the electoral competition comprise deputies of councils of various levels and officials of state administration. At times, local government officials use their public status and powers for campaigning purposes. In particular, they either organize or join socially oriented public events (trade-fairs, ceremonial events, etc.).

National level politicians and public figures, including MPs, do not seem to have much interest in the election process in merged communities. We registered only several instances of people’s deputies (Oleksandra Kuzhel, Fedir Nehoi) visiting electoral districts and arranging meetings with voters. Aside from episodic exceptions (the town of Talne, Cherkasy oblast), there was no local party organizations’ coordination for joint support of candidates for local head positions.

Legislation violations by district election commissions at the stage of creating TECs were episodic and non-systemic. An insignificant number of violations registered by the observers had to do with local organizations failing to meet deadlines for TEC member candidates’ nomination and for creation of TECs. Local organizations of the parties that have their factions in the parliament ensured their dominant representation in TECs based on legally set quota (two guaranteed candidates). The largest number of candidates belong to AU Batkivschyna (431) and Petro Poroshenko’s Bloc (410); the least number (of all parliamentary factions) are from Union Samopomich[Self-Help] (71).

Almost all TECs met the legislation requirement and arranged their first meetings within the legally set timeframe (on the second day after commissions were formed). The key problems of TEC operation were late promulgation of their decisions and failure to provide access to observers’ decisions.

Similar to the regular local election in 2015, forming electoral districts proved to be among the most problematic issues for territorial election commissions. Some TECs failed to meet the deadlines for forming electoral districts at the first local election. Absence of legally set limits for deviation from an average number of voters in an electoral district and of the requirement to follow administrative territorial division while creating electoral districts caused confrontations (including lawsuits) between election commissions and subjects of the election process.

A positive sign about the first local election in merged territorial communities on 11 and 18 December 2016 is that there were no mass-scale denials of candidate registration and consequent confrontations between territorial election commissions and potential subjects of the election process.

Voters do not demonstrate much interest in the election process and are poorly informed about its progress and participants. They are also poorly informed about distinctive features of the first elections in the merged communities.

PRE-ELECTIONACTIVITIES OF CANDIDATES AND PARTIES’ LOCAL ORGANIZATIONS

OPORA observers have recorded low campaigning activity among political parties’ local organizations and candidates. In spite of the fact that candidate nomination started on 07 Novermber (for the elections on 11 Dec 2016) and on 14 November (for the elections on 18 Dec 2016), parties’ entities and self-nominating candidates submitted their registration applications to TECs in the last few days before the deadline set by the election legislation.

Unlike the regular local election in 2015, at the first local elections in the merged territorial communities there were practically no recorded instances of untimely campaigning that was widespread last year violating the legally set timeframe. In accordance with the Law of Ukraine on Local Elections, a candidate is allowed to campaign no earlier than on the following day after his/her official registration by TEC’s decision. As a rule, even officially registered candidates at the first local elections in merged territorial communities on 11 and 18 December 2016 were launching their campaigns at a slow pace. A noticeable campaigning activity was registered only in the last few days of November. Still, we registered occasional instances of violating campaigning timeframe.

Unsettled disputes about the necessity of mergers of individual cities, towns and villages and confrontations between supporters and opponents of this process make a noticeable impact upon the election process in a number of communities. One of the high-profile local confrontations led to termination of the election process in Richky village merged territorial community (Bilopillia district, Sumy oblast). The TEC has stopped its operation following the court decision on the denial of the village of Pavlivka to join the Richky village merged community, which made further election process impossible.

With the election process under way, public protests against mergers of territorial communities were registered in the villages of Postolne (Sumskyi district, Sumy oblast), Antonivka (Chemerovetskyi district, Khmelnytskyi oblast), Olhivka (Kherson oblast). In Cherksasy oblast, a deputy of the Sokolivochka village council has declared his intention to litigate the decision on forming Talnivska city merged territorial community in the court. At the same time, some political parties’ local organizations show activity in those territorial communities, where they have previously supported activist groups against certain format of territorial communities mergers. For example, the AU Svoboda [Freedom] local organization has actively supported activist groups striving for moving community center to the village of Podorozhnie instead of the village of Velyka Andrusivka (Velyka Andrusivska village merged territorial community, Kirovohrad oblast). It is necessary to stress that, in a number of communities, a positive discussion of government decentralization tasks as well as mergers of territorial communities constitutes an important part of candidates’ pre-election activities, especially among those who are current heads of local government institutions.

Over October-November 2016, OPORA observers have registered low level of voter awareness about the scheduled voting at the first elections in merged territorial communities. This was primarily because of the low campaigning activity and unfinished candidate registration. But, in any case, candidates and election commissions have to put significant efforts to inform voters about the importance of voting at the first local elections considering current level of interest citizens have in the election processes.

Current heads of villages, towns, and cities that belong to merged territorial communities were actively nominating themselves as candidates for the first local elections on 11 and 18 December. Moreover, many of them have significantly intensified their official activities by arranging socially oriented events and promulgating reports on territorial communities’ development and achievements over their previous terms in office. A good example of current local government officials’ activities is the case of Bashtanka city Head and a nominated candidate for the next term Ivan Rubskyi, who, on 19-21 November, arranged a trade-fair for agricultural workers and opened a new tomographic imaging cabinet at the central district hospital (in Mykolaiv oblast)

In some regions, OPORA observers noted a significant interest on the part of deputies and heads of district councils as well as heads of state district administrations in participating in the elections of heads of merged territorial communities (for example, Kalanchak district, Kherson oblast).

Although not a widespread practice, there still were instances of national or regional level politicians’ involvement in election campaigns at the first local elections in merged territorial communities on 11 and 18 December. For example, a few days before the election process started, a people’s deputy of Ukraine Fedir Nehoi together with the head of the Chaplynka district council and the head of Hrihorivka village, who was a to-be candidate, arranged a meeting with citizens to discuss local road repairs. At the same time, local residents report that a people’s deputy of Ukraine Oleksandra Kuzhel arranged a public meeting in the village of Starovyshnevetske, which, after the merger, belongs to Rozdory town council of Sinelnykove district in Dnipropetrovska oblast. Several officials of oblast state administrations and district authorities have participated in public meetings arranged by political parties’ local organizations.

Political parties’ local organizations that are active at the first elections in merged territorial communities do not tend to coordinate their stances on candidates. In fact, there are only few cases where several local party organizations agreed upon common candidate for the first local election. For instance, 5 political parties have supported Oleksii Iurchenko, a candidate for head of the city of Talne from AU Svoboda.

It is for the first time that the new parties (Rozumna Syla[Smart Force] and several others), which had not nominated their candidates at the regular election in 2015, participate in the local elections in merged territorial communities. The Social Democratic Party (Serhii Kaplin), which competed at the regular election in 2015 under another name, also participates in the election after being re-branded.

CANDIDATE NOMINATION

The process of candidate nomination by local organizations, overall, went in accordance with the legislation requirements and meeting the appropriate standards of openness to Media and observers. At the same time, we have recorded instances of inappropriate informing of TECs by parties’ local organizations about date, time, and venue of candidate nomination meetings, which was the responsibility of political parties’ local organizations. In accordance with the Article 37 (5) of the Law of Ukraine on Local Elections, political parties’ local organizations are required to inform TECs in written no later than one day before a meeting or conference is to take place. TEC members have the right to be present at a candidate nomination meeting or conference. The legislation also requires informing the Media about date, time and venue of the candidate nomination meeting. Some meetings and conferences took place at a different time than was announced by parties’ local organizations and no free access for journalists and observers was allowed.

In communities of Mykolaiv oblast, OPORA observers found that parties informed commissions about the meetings but sometimes those meetings have not taken place or were held at a different time than announced. However, decisions of local party’s organization meetings on candidate nomination were later submitted to TECs. In particular, the conference of Petro Poroshenco’s Bloc Mykolaiv district organization took place at a venue that was inaccessible for OPORA observers. Bashtanka district organization of AU Svoboda held its conference two hours earlier than was announced, which rendered observation of this process impossible. At the same time, Head of Koblivo village commission could not identify the address of the venue, indicated by AU Batkivschyna’s Berezan district party organization in its notice on candidate nomination meeting for the first local election.

In Ternopil oblast, local organizations of the parties Ukrainian Union of Patriots – UKROP and AU Svoboda have not informed Veliki Dederkaly and Borsuky village election commissions about their candidate nomination meetings. At the same time, AU Batkivschyna’s Shiroke district organization (Dnipropetrovsk oblast) held its candidate nomination conference one day before the announced date rendering it impossible for journalists and observers to attend the event. Similar situations were registered in several other territorial communities. Either inaccurate or false notice by Oleh Liashko’s Radical Party Manevychi district organization (Volyn’ Oblast) about the date, time, and venue of its candidate nomination meeting prevented an OPORA observer from attending that event.

TEC ACTIVITIES

Based on OPORA observers’ evaluation, majority of TECs created for the first local elections in merged territorial communities on 11 and 18 December perform their functions in accordance with the legislation requirement meeting sufficient organizational standards.

As mentioned in the OPORA’s report on TECs formation results at the first local elections in merged territorial communities on 11 and 18 December, TECs formation went in accordance with the legislation and in a non-confrontational manner. Violations by district election commissions during TECs formation were episodic and non-systemic (Link: https://goo.gl/1ttLkC). Most TECs were formed without sortitions, since the number of candidates proposed by parties’ local organizations was smaller than maximum number allowed for the newly formed election commissions. According to OPORA, it was only in 15 out of 185 TECs where more than 18 candidates for TEC membership were nominated and the sortition procedure had to be applied.

District election commissions responsible for TECs formation at the first local elections did not allow mass-scale violations of the election legislation. An insignificant number of violations had to do with failing to meet the deadlines for TEC candidate nomination and overall TEC formation. Also, we revealed a number of instances where TEC membership appointments were given to candidates proposed by heads of district election commissions while there were also candidates nominated by parties’ local organizations.

The right of parliamentary parties’ local organizations to nominate three candidacies, two of which had to be accepted, allowed those political parties to dominate in territorial level commissions.

OPORA Special Report indicates that the largest number of election commission members at this level represent AU Batkivschyna,(431), Petro Poroshenco’s Bloc (410), People’s Front, Opposition Bloc, and Oleh Liashko’s Radical Party (222). At the same time, the Union Samopomich, which also has a faction at Verkhovna Rada of Ukraine, is lagging behind its parliamentary rivals with the smallest TEC membership (71). Next to the parliamentary parties’ local organizations, the parties with largest representation in TECs are Nash Krai [Our Land] (66), the Agrarian Party (63), Ukrainian Union of Patriots – UKROP (61), and AU Svoboda (40). The Party Vidrodzhennia’s [Renaissance] local organizations ensured over 10 representatives in a number of TECs (14). Local organizations of other parties, individually, have less than 10 representatives in all 185 TECs.

In accordance with the Law of Ukraine on Local Elections, first TEC meetings are to take place no later than on the second day after TECs are formed. It was only individual TECs that did not meet this legislation requirement and held their first meetings after the legally set deadline. For example, Storozhinets’ city election commission (Chernivtsi oblast), Vytvycia village election commission (Ivano-Frankivsk oblast) and several other TECs held their first meetings not in a due time.

At TECs’ first meetings OPORA observers noticed significant logistical problems in commissions’ operation (lack of venues, communication and computer facilities, etc.). Later, however, those issues were solved.

There remains a traditional problem with untimely promulgation of TEC decisions or observers lacking access to commission decisions. This kind of election legislation violations is rather widespread at the first local elections in merged territorial communities on 11 and 18 December.

Over the reporting period, TECs’ major responsibilities included forming single mandate and territorial electoral districts as well as candidate registration.

Similar to the regular local elections 2015, forming electoral districts proved to be among the most problematic issues for territorial election commissions. Several TECs failed to meet the deadlines for forming electoral districts at the first local elections in merged territorial communities (for example, Prybuzhany village election commission, Mykolaiv oblast; Baranivka city election commission, Zhytomyr oblast), but the key problem was with ensuring approximately equal number of voters in each district.

Article 17 of the Law of Ukraine on Local Elections stipulates that in order to hold elections of deputies to village and town councils, TECs form single mandate electoral districts with approximately equal number of voters in each of them in a total number that equals the number of seats in a respective local council. While forming territorial electoral districts for city council elections one also has to ensure approximately equal number of voters in each of them. If a city includes another citiy, town or village, a TEC has to form a separate territorial electoral district in each of them. In this case, the number of voters in such a district should be as close as possible to the average number of voters in a territorial electoral district of a multi-mandate district. A territorial electoral district may include the territory of only one city, town or village that is part of the city, whose local council is to be elected. At the same time, electoral districts have to correspond with boundaries of regular precincts, which cannot be altered except where the number of precincts is smaller than the number of territorial electoral districts.

Since there are no set limits for allowed deviation from the average number of voters in an electoral district and no obligation to follow the provision on an approximately equal number of voters together with the requirement to form territorial electoral districts in every city, town and village, which form a part of another city, create an environment for disputes and confrontations between election commissions and election process subjects.

At the first local elections in merged territorial communities there were a number of instances of revised TEC decisions on forming electoral districts. Among the high-profile incidents there was an annulment by Vinnytsia District Administrative Court of the Numyriv city election commission’s decision on forming territorial electoral districts in a lawsuit filed by a voter. The court has decided that the plaintiff’s rights may be infringed by the decision to form the territorial electoral district #13, where the number of voters significantly differed from number of voters in other districts. The court referred to the Article 18(1) of the Law of Ukraine on Election of People’s Deputies of Ukraine to interpret an approximately equal number of voters requirement for forming electoral districts; based on that article, a deviation in number of voters in a single mandate electoral district at parliamentary elections cannot exceed twelve percent of the approximate average number of voters in single mandate districts. Vinnytsia District Administrative Court put an obligation on the city election commission to form territorial electoral districts within electoral precincts #050772 and #050773 with an approximately equal number of voters in individual territorial electoral districts. Based on that court decision, boundaries of the seven territorial districts at the Nemyriv city council election were redrawn.

There was another court proceeding on the election dispute regarding districts formation in Chernihiv oblast. In a lawsuit by five subjects of the election process, Chernihiv District Administrative Court annulled the decision of the Nosivka city election commission in five territorial electoral districts and put an obligation on the TEC to form these districts in accordance with the current legislation requirements. That dispute was finally settled by the decision of the Kyiv Administrative Court of Appeal denying the appeal by the Nosivka city election commission. As a result, the TEC revised its decision and changed the boundaries of the territorial electoral districts.

Reshetylivka village council (Poltava oblast), on its own accord, has changed its previous decision on forming electoral districts by creating a separate district in one of the villages of the merged territorial community.

Also, observers revealed certain specific problems with the process of forming electoral districts. In Ivano-Frankivsk oblast, several village election commissions, while forming electoral districts, faced the problem of lacking street names in some of the lists provided by institutions responsible for maintaining the State Register of Voters. At the same time, the Sokolivske village election commission (Kirovohrad oblast) revised boundaries of one of the electoral districts since the previous decision did not account for the street, where one of the voters was registered. OPORA observers paid their attention to the fact that in some territorial communities TEC decisions on forming electoral districts caused public discontent among voters (Shyriaeve village community, Odesa oblast; Bashtanka city community, Mykolaiv oblast). However, since there were no court litigations, these protests had no practical consequences.

Overall, electoral districts at the first local elections in merged territorial communities on 11 and 18 December significantly differ by number of voters. This is, primarily, due to the absence of legally set limits for deviations from an average number of voters in a district and the need to follow other requirements in regard to forming districts. In any case, local election legislation reform has to include systemic revision of approaches to forming electoral districts with focus on ensuring equal weight of individual votes.

Civic Network OPORA plans to promulgate a separate special report on forming electoral districts at the first local elections in merged territorial communities on 11 and 18 December.

CANDIDATE REGISTRATION

A positive sign about the first local elections in merged territorial communities on 11 and 18 December 2016 was absence of mass-scale denials of candidate registration and consequent confrontations between territorial electoral commissions and potential subjects of the election process.

Problems occurred occasionally and were mostly due to differing interpretations of the legislation. As OPORA observers note, it was quite frequent that candidates submitted registration documents with inaccuracies or mistakes, but those were subject to correction and did not provide sufficient ground for registration denial. In rare cases, self-nominating candidates or parties’ local organizations attempted submitting documents for official registration after the legally set deadline. The latter refers, for example, to the case of the Povorsk village merged territorial community (Volynsk oblast), where the Agrarian Party local organization was late to submit candidate registration documents.

In Zhytomir oblast, the Semenivka village election commission has registered two candidates for deputies after the deadline set by the Law of Ukraine on Local Elections. The candidates submitted their documents in due time, but the TEC failed to make a decision for either registering the candidates or denying them registration within three days after filing their applications.

Occasionally, election commissions requested candidates or parties’ local organizations to submit documents that were not required by the current legislation. In most cases, this was about certain registration and other kinds of documents from political parties, whose local organizations were nominating candidates. Also, there were rare instances of ungrounded requests to submit documents of a personal kind. As a rule, such incidents were settled peacefully after making election commission members familiar with regulations of the Law of Ukraine on Local Elections.

In individual territorial communities, there were recorded instances of registering candidates with fully or partially identical surnames, first names and patronymics. This circumstance can, potentially, create difficulties to voters, who can be misled by similar candidates’ personal data. Such instances were recorded at the elections of Poliana and Novolativka village councils (Zakarpattia and Dnipropetrovsk oblasts respectively). In Zakarpattia oblast, there are three candidates participating in the village head election with similar personal data, one of them being the current Head of Poliana village (Drohobetskyi I.V., Drohobetskyi I.I., and Drohobetskyi I.I.). At the same time, in Dnipropetrovsk oblast, at the election of the Novolativka village head, the two nominated candidates are Zubrii O.V. and Zubrii O.O. Candidates for the head of Dubove village are Bezeka M.Y. and Bezeka P.V. (Volynsk oblast). At the same time, two registered candidates for the head of Shalyhino town are Matvienko Y.V. and Matvienko A.M. One of the candidates is the current Head of Svarkove village, while the other one is a student at Hluhiv Pedagogical University (Sumy oblast). Also, at the election of the Nemyriv city head (Vinnytsia oblast) there are three registered candidates with identical surnames: Kachur V.M., Kachur I.H., and Kachur B.H.

VIOLATION OF ELECTORAL LAWS BY CANDIDATES AND LOCAL ORGANIZATIONSOF POLITICAL PARTIES

Low intensity of pre-election campaigns and nonoccurrence of acute political conflicts in the first local elections in the united territorial communities, which are scheduled for December 11 and December 18, 2016, is accompanied by the absence of mass violations of electoral laws and generally accepted electoral standards. There were only isolated cases of non-compliance with legal requirements during October – November, 2016.

Observers emphasize the fact that current officials of local self-governing authorities, who are running in the first local elections, made quite extensive use of of formal events and local development programs in an attempt to attract the attention of voters.

These activities create conditions for violation of the principle of equal opportunity for all candidates. At the same time, voters find it difficult to distinguish current activities of elected officials from agitation activities of candidates, as evidenced by previous elections. In this context OPORA’s observers also emphasized the problem of mass publication of articles about current activities of officials of local governments in local media, which contain hidden agitation.

For example, information about meeting of residents in support of nomination of current mayor Oleh Omelchuk was published on the official website of Olevsk city council (Zhytomyr oblast). In the same city, local deputies were raising money for construction of playground under the guidance of current mayor of Olevsk.

Some of the candidates prior to their registration performed certain activities that constitute bribery of voters. For example, one of the leaders of “Good Samaritan” party Volodymyr Kravets conducted charitable actions and social activities for voters and institutions located in Vyshnivetskiy township election district. One of mayoral candidates, nominated by “Good Samaritan” party, is a tenant of land parcels located on the territory of Vyshnivetskiy township united territorial community (Ternopil oblast).

In some territorial communities there were recorded cases of distribution of printed materials containing false information about certain candidates (the so-called black PR). For example, a newspaper containing information materials aimed at discrediting current village mayor Serhiy Bondarenko, who runs as a candidate in mayoral election, is distributed in Zasullya village (Poltava oblast). However, according to reports of observers, the use of black PR technology is not a widespread practice in the first local elections scheduled for December 11 and December 18, 2016. A similar case in the form of distribution of printed material under the title “An open letter to premature mayor” was recorded in the election of mayor of Vyzhnytsia (Chernivtsi oblast). This printed material provides negative coverage of activities of current mayor Olexiy Chepil.

In Vinnytsia oblast, local law enforcement agencies have started criminal proceedings concerning the obstruction of the exercise of electoral rights of candidate who was faced with threats of physical violence. Candidate for mayor of Tomashpil village Volodymyr Nimerovskiy filed a notice of withdrawal from election with the TEC. Later on, candidate informed the police and the election commission that he was subjected to moral coercion and threats of physical violence due to participation in the elections. It should be noted that this candidate currently holds the post of village mayor.

Non-transparency of campaign finance and non-accountability of candidates’ expenses remains an acute problem in the local elections in Ukraine.

Candidates, who run in the first local elections scheduled for December 11 and December 18 in the united territorial communities, aren’tin a hurry to disclose information on their electoral funds. At the same time, there were documented cases of violation of procedure for pre-election campaigning. In particular, there were recorded cases of distribution of leaflets urging to vote for mayoral candidate Oleh Levchuk in Mlyniv (Rivne oblast). Although, as of November 24, 2016, this candidate still hasn’t opened his electoral fund account.

Despite the small number of recorded violations, all cases of ignoring the law on the part of candidates should be promptly investigated in order to bring lawbreakers to justice and prevent potential violations in the closing stages of campaigning period, as well as during vote tabulation and announcement of election results.

RECOMMENDATIONS

To Central Election Commission:

Together with territorial election commissions, to ensure appropriate informing of voters about what is special about the first local election, about their rights and responsibilities, as well as about responsibility for violating the election legislation.

To Verkhovna Rada of Ukraine:

Reform of the local election legislation has to include a systemic revision of approaches to forming electoral districts so as to make the principle of equal weight of votes possible to implement in practice.

To MIA: