KHARKIV. THE LAW OF UKRAINE «ON THE UKRAINIAN PRESIDENTIAL ELECTIONS» IN THE CONTEXT OF THE ACTIVITY OF THE MASS MEDIA AND THE DISSEMINATION OF CAMPAIGNING MATERIAL
The KHRG Election Campaign Monitoring Group
An assessment of how the Law «On the Ukrainian Presidential elections» is being implemented in practice forces us to note the large number of violations to the norms of this law, with effectively total absence of any punishment for the violations.
Under such circumstances threats of punishment from outside the legal framework to those who do, nonetheless, attempt to implement the law, can logically be anticipated.
As regards the Mass Media, they are also subject to such pressure, primarily from State executive bodies, while in Kharkiv and Kharkiv region, also from the bodies of local self-government, which is a violation of Paragraph 2 of Part 4, Article 3 (Equality of rights and opportunities for participation in the election process are assured): 2) the prohibition on interference by State executive bodies and bodies of local self-government in the election process, except in situations allowed for by this Law) and Paragraph 1, Part 2 of Article 11 of the Law (the election process is carried out on the basis of i) legality and the prohibition on interference by anyone in this process.
Although Part 1 of Article 60 stipulates that pre-election campaigning using means of mass media of all types of property is carried out observing the principle of equal conditions and according to procedure, set out by this Law, it is even now, before the end of the pre-election campaign, possible to state that the principle of equal opportunities at these elections is being violated, as are a number of norms of the Law. Together with this, the use of printed publications of bodies of State power and of local self-government for pre-election campaigning in favor of one of the candidates also contravene Paragraph 2 Part 4 of Article 3 and Paragraphs 6 & 7 of Part 2 of Article 11 of the Law (The election process is carried out on the basis of … 6) the freedom of pre-election campaigning, equal opportunities for access of presidential candidates to the mass media; 7) the impartiality of executive bodies, bodies of local self-government, business enterprises, institutions and organizations, their directors, other officials and functionaries, with regard to candidates to the post of President of Ukraine.)
In publications issued by bodies of local self-government in Kharkiv and Kharkiv region, addresses made by the Prime Minister to citizens have frequently been published which do not fall under Part 3 of Article 58 since they are not official announcements about the activities of presidential candidates connected with their fulfilment of official duties, foreseen by the Constitution of the Ukraine or Ukrainian legislation, and since they carry photographs.
In addition, such practice directly violates Part 4 of Article 64 which states that State and municipal forms of mass media, their management and staff, and employees in creative posts during the election campaign are not allowed to campaign for or against presidential candidates, assess their election manifestos or give them preference in any form in their material and programs, not otherwise stipulated in agreements made in accordance with the demands of Part 9 of Article 61and Part 6 of Article 63 of this Law. In the case of any violation by them of this requirement, the activity of these forms of mass media, may on the request of the Central Election Commission (hereafter CEC) or the appropriate Territorial Electoral Commission, be temporarily suspended by decision of court.
Despite the fact that the municipal mass media in Kharkiv and Kharkiv region have, in their material, repeatedly shown preference for Viktor Yanukovych, the CEC has not deemed it necessarily to suspend their activities.
Furthermore, as a form of indirect campaigning from bodies of State power, one can also view the announcement to pensioners from the State Pension Fund about an increase to their pensions, which in particular states: «The Government of V. Yanukovych (our underlining) has taken the decision to set pension payments at the level of the minimum living wage.
One should note that while Article 6 of the Law, allows for the holding of free elections and for ensuring conditions for people to freely make their own choice, and prohibits deception as a means of exerting influence on voters’ position (Part 2 of Article 6) and while Part 4 of Article 13 positively obliges the mass media to cover the course of the election process objectively, during these present elections all of the above have largely remained noble wishes, and those who violate such norms (whether a presidential candidate or the mass media), effectively face no consequences at all.
Part 2 of Article 6 also prohibits the use of violence, threats, bribery, or other actions which may hinder the free forming and free expression of the will of the voter.
Yet there have been cases of threats directed against private businessmen who had placed campaigning material in support of Viktor Yushchenko in their shops.
One of the most telling examples of the actions of State executive bodies, directed at hindering the free development of voters’ opinion, was an event which occurred on 11 September 2004 on the road leading into Kharkiv from the direction of Kyiv. At approximately 20.30 at a control point of the State Automobile Inspection (SAI) «Pesochin», officers of SAI stopped a vehicle transporting the print run of the weekly «Without censorship». The real reason for the measure was a photograph in the newspapers where a poster of Viktor Yanukovych was photographed through the bars of a fence. After lengthy discussion and appeals, the vehicle and print run were returned only in the morning of the following day.
Threats of dismissal from work have been used to force state sector workers (doctors and teachers) to distribute campaigning material for Viktor Yanukovych, as well as to carry out so-called surveys and discussions, the purpose of which are to persuade those targeted to vote for Yanukovych, and also to give them ‘voters’ orders’. There have been cases when campaigning material for Viktor Yanukovych has been circulated by employees of post office departments.
One of the aspects of the use of the mass media during the elections is linked with the authority of the Central Election Commission (CEC) to carry out educational work dedicated to the Presidential elections (Paragraph 7 of Part 2 of Article 25), however this work is practically not carried out. In connection with this, it is perhaps worth mentioning that the CEC has no interest in ensuring that citizens are informed about the principles and procedure for holding elections, their role in the life of society and of the State, the procedure for voting, the rights and obligations of voters, and also, the prime importance of which has been seen in the course of this electoral campaign, mechanisms of control over adherence to legislation for presidential elections in Ukraine. In turn, the lack of awareness or weak understanding by citizens of the specific features of legislation on presidential elections creates the conditions for possible election fraud.
Part 1 of Article 58 stipulates that election campaigning may be carried out in any form and using any means which do not contravene the Constitution of Ukraine or Ukrainian legislation. However, we have information suggesting that police officers in Kharkiv have, on many occasions, detained people distributing forms of mass media and campaigning material in support of the presidential candidate Viktor Yushchenko, on the pretext of checking the source information of the given material, then after some time released them.
Although Part 8 of Article 59 of the Law sets out that local authorities, and bodies of local self government should, not later than one hundred and twenty days before the elections, provide space and prepare stands and notice boards in public places for election campaigning material, in Kharkiv there are virtually no stands and notice boards specially installed for the elections, on which, in accordance with the principle of equal opportunities, presidential candidates could put their campaigning materials.
As regards pre-election televised debates (Article 62 of the Law) between candidates to the post of President of Ukraine, it is obvious that the excessively large number of candidates (including ‘technical’ candidates who have no chance of even getting their registration fee back[1]) would make such debates on the conditions stipulated by the Law (in particular, the limitation of the number of participants) of no interest to either television organizations or television and radio audiences.
There is extremely wide-scale preparation and distribution of printed election campaigning material, which does not contain information about the institution having printed it, its print run or information about the people responsible for the issue (in contravention of Part 7 of Article 59 of the Law: printed pre-election campaigning material must contain information about the institution having printed it, or an indication, that the printing was carried out using the property of the corresponding Presidential candidate or of his or her party, its print run, and information about the people responsible for the issue, while Part 16 of Article 64 prohibits the dissemination of material in which the above information is not given). This regulation remains largely on paper and achieves only a situation whereby those people responsible for the issue, at best, try to conceal the very fact of it having been printed. In Kharkiv and Kharkiv region cases where such printed material has been disseminated are quite common. Some of these contain calls supposedly from their opponent inciting people to inter-ethnic hostility and war propaganda which violates Part 3 of Article 64 of the Law. However, even in those cases, when the people who prepared and distributed such material have become known to State executive bodies, no action has been taken against them. Thus, for example, on 18 August 2004, in Kharkiv, campaigners from the regional headquarters of Viktor Yushchenko discovered leaflets pasted around with a nationalist-fascist content, discrediting Yushchenko, and detained, together with the police officers on duty nearby, those responsible. There was no information about the print run, the publisher or the person in charge. As became clear later, these people had been hired by a campaigner from Viktor Yanukovych’s headquarters (official identification document No. 505.)
It must, therefore, be acknowledged that the level of implementation of the Law of Ukraine «On the Ukrainian Presidential elections», in particular with regard to the activity of the mass media, the preparation and dissemination of campaigning material, is extremely low. In our opinion this is connected with several factors:
1) the use by the candidate from the State powers of State administrative resources (executive bodies and bodies of local self-government), the involvement of employees of the state sector in the dissemination of his campaigning material;
2) the dependence of the mass media on their owners;
3) the existence of a large number of declarative regulations and the lack of adequate mechanisms for ensuring liability for infringements of the Law’s regulations;
4) open disregard by executive bodies (and their officials) of the requirements of the law, and selective application of the law only to opposition candidates.
25 September 2004
[1] All candidates had to pay a registration fee (of around half a million hryvnias) which was refunded if the specific candidate gained 7 % of votes or more. (translator’s note)