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Human rights in Ukraine – 2007. 13. The Right to free elections and to participate in referendums

   

[1]

In 2007 early parliamentary elections took place, as well as 132 pre-term elections for city, settlement and village heads. Last year Ukrainians also attempted to exercise their right to a nationwide referendum, while in some places representatives of territorial communities initiated local referendums.

In this section we will analyze the trends with regard to safeguarding the right to take part in nationwide and local referendums and to freely elect and be elected to the State authorities and bodies of local self-government.

1.  Pre-term elections to the Verkhovna Rada (parliament)[2]

  During the election campaign human rights groups identified infringements both of electoral rights and of other rights linked with the elections.

1.1. Restrictions to electoral rights at the legislative level

The preparation and holding of the pre-term elections of National Deputies (MPs) took place amidst a fierce political crisis and was made more difficult by the lack of realistic norms in electoral legislation which could ensure appropriate legal regulation for the early parliamentary elections.

The adoption of the needed amendments to the Law on the Elections was made possible only via political deals which regrettably took into account the interests of specific political parties, not of the voters.

For example, the amendments effectively made it impossible for a considerable number of citizens to take part in the voting. Absentee voting papers were cancelled, which is in contravention of the commitments taken by OSCE member States which stipulate that reliable mechanisms must be created for citizens temporarily away from their place of residence to enable them to vote.[3]

Serious problems were also presented for people temporarily outside the country. The State Border Guard Service had to provide electoral commissions with information about such people.  Committee of Voters of Ukraine (CVU) experts predicted that this procedure would only confuse and complicate the electoral process and if the norm were enforced, it would restrict the electoral rights of people returning to Ukraine in the last three days before the elections, including even voting day itself, since they would have been taken off the voter lists.[4]  CVU considered the norm to be retrograde which made inclusion of people who were abroad on the electoral list significantly more difficult. In order to vote, these Ukrainian nationals had to be registered with a consulate.

  Restriction of voters’ rights was thus already set in place by norms at legislative legal. During the election came, other serious problems also emerged of an organizational nature, with these also causing electoral rights infringements.

 

1.2. The main infringements of voters’ rights. Particular features of the pre-term elections.

According to the OSCE Mission, the early parliamentary elections in Ukraine were conducted mostly in line with international commitments and OSCE and Council of Europe standards. At a press conference in Kyiv on 1 October 2007, Tone Tingsgaard, , the Special Co-ordinator of the short-term election observers said that the elections “confirm an open and competitive environment for the conduct of election processes”.  She stressed that the constitutional right of citizens to gather and express their will had been respected, and that the Mission considered the elections to have passed peacefully, and that the voting process had been transparent. At the same time she noted that the last amendments to legislation on the elections had had an adverse effect on their running. Of particular concern to the Observer Mission was the low quality of the voter lists, the loss of the right to express their will of people who crossed the border after 1 August, as well as the fact that people were unable to vote with absentee ballot papers. She added that there had also been no legislative possibility for ensuring honest and transparent home vote. However “despite difficult circumstances, these elections were conducted in a positive and professional manner.”[5]

According to the report of the European Network of Election Monitoring Organizations (ENEMO), the pre-term elections in Ukraine were on the whole free of pressure and threats against voters, political parties and their blocs, and in the main complied with international standards.[6]  The international observers found infringements concerning adherence to legislative procedure by electoral commissions, campaigning by public officials, problems with the voter lists, etc.

The all-Ukrainian civic organization - the Committee of Voters of Ukraine (CVU), which carried out monitoring of the elections in all regions of the country, concluded that the election campaign had been free, competitive and transparent. CVU did not find significant or systematic violations or cases of pressure on voters, although it did identify other violations.

Summarizing the reports on observing the election campaign, one can highlight three man tendencies in infringements of voters’ rights during the early parliamentary elections.

Hundreds of thousands of voters were denied their chance to express their will because they either weren’t placed on the voter lists or were unwarrantedly removed from them. Nor was the procedure for checking information about voters organized properly due to the incompetence of the authorities and electoral commissions. The Committee of Voters therefore considers that the elections were not universal

A significant violation was seen in the constant and demonstrative campaigning by public officials at all levels for various political forces which in our view infringed the rights of Ukraine to free expression of their will.

The elections were also marked by violations of other human rights. One should firstly note the mass-scale violations of the labour rights of members of electoral commissions. Over the course of several days, the members of precinct electoral commissions, effectively volunteers from political parties were forced to work around the clock without appropriate pecuniary compensation. For example, voting day for members of the commission, in accordance with legislation, was supposed to begin on Sunday 30 September at 6.14 a.m. with a morning meeting, and conclude on Monday 1 October, in some places even Tuesday 2 October, following the acceptance in constituency electoral commissions of the bulletins and protocols on the vote count.

  We also saw the content of certain rights being twisted. For example, during the elections, the right to freedom of speech was transformed into the right of participants in the elections to place political advertising or covertly commissioned news items [“jeansa”] in media outlets.

  Oleksandr Chekmyshev, Head of the “Equal opportunities” Committee, which carried out nationwide monitoring of the media in August and September 2007, said that a specific feature of the 2007 electoral campaign had been the shift from censorship to commissioning. “Instead of “temnyky”, we have “jeansa”[7] The political “jeansa” of 2007 has replaced the “temnyky” of 2004. After all, the voter doesn’t receive objective information when, under the guise of real news, s/he is presented with paid advertising material”

He adds that “in coverage of the activities of the participants in the electoral process, there remains a tendency for there to be virtually no objective material, that is, material which the newspaper itself has commissioned, or which reflects the position of its author. With very rare exceptions, articles are “jeans”, i.e. covert and paid advertising for political parties, and not a source of objective information, or the personal opinion of the journalists. Essentially the Law on the Elections itself encourages such buyer-orientated behaviour from the local press which turns its editorial policy into that of a leaser letting “vending space” in their newspaper.”[8]

This campaign resulted in the emergency of a serious threat to one of the foundations of democratic society – freedom of speech. “Society does not have a social institution which through mass coverage and refutations can uncover cases of political corruption in pro-regime structures and in business. There is basically a threat in the Ukrainian media of losing their professional calling, just as in the times of “temnyky”.[9]

 

1.3. Examples of human rights violations during the election campaign and on voting day

The use by public officials, the authorities and bodies of local self-government of administrative resources

The Committee of Voters of Ukraine only recorded isolated cases of pressure or intimidation of voters by public officials, as well as a not major number of cases where representatives of the authorities placed obstructions on carrying out election campaigning. The reduction in such cases is undoubtedly a positive feature.

According to the Donetsk branch of the Bloc of Yulia Tymoshenko [BYuT], it applied to the Donetsk Prosecutor’s Office to investigate alleged persecution on political grounds of Senior Police Lieutenant and District Inspector of the Proletarsky Police Station in Donetsk, V. Shebanov. The application stated that on 4 September in non-working hours he had been present at a public rally with Yulia Tymoshenko which aroused displeasure among the management. Immediately after this event, the application asserted, the persecution of Shebanov by the management of the city police had begun. There had been a search carried out, for example, of his working place, and Shebanov himself had been asked for explanations about shortcomings in his work. After this, his official identification document had been taken away.[10]

Another case was recorded in the Rivne region. The Dubnya branch of the Party of the Regions reported that on in the centre of the city on 25 August 2007 pressure had been brought to bear on their members by the Mayor of Dubnya who represents “Nasha Ukraina” [“Our Ukraine”]. He had allegedly demanded that they stop their campaigning and take away their tent.[11]

In other regions similar isolated incidents were also reported.

The greatest problem related to the use of administrative resources during the pre-term elections, was the fact that public officials from the authorities and bodies of local self-government combined their official duties with their role as leaders of electoral headquarters or parliamentary candidates.

In general, CVU calculates that around one third of the heads and deputy heads of local administrations and bodies of local self-government were formally involved in the electoral campaign on the side of different political forces. Despite numerous statements, the majority of them did not go on leave.  And those who announced that they were going on leave, most often continued to carry out their duties.

The following are standard examples of such violations made public by long-term CVU observers in September 2007.

  Sevastopol

  The Head of the Sevastopol City State Administration  [SCSA] S. Kunitsyn (No. 2 on the candidate list of the bloc “URA” – Ukrainian Regional Activists), while on leave, continued to carry out his duties, hold meetings, briefings, take part in official events as the Head of the SCSA (for example, a trip to Moscow), appointed and removed civil servants. He stated at a briefing: “you should all be pleased that while on leave I’m carrying out my duties. Incidentally, many officials in Kyiv are doing the same.”

  The Kherson region

  After considerable criticism, on 31 August the press service of the finally announced that the Head of the Administration and all heads of district State administrations [DSA] had gone on leave. The CVU did not however find confirmation of this among Instructions of the Head of the Kherson Regional State Administration [RSA] sending his subordinates on leave which are posted on the Administration’s official website.

  In the newspaper “New Day” No. 33 from 16 August interviews with candidates from the Socialist Party [SPU] who are public officials (the Head of the Beryslavka DSA,  Volodymyr Stetsenko, the Deputy Head of the Holoprystansk DSA,  Petro Shevtsov, the Head of the Service for Juvenile Affairs for the Kherson RSA Natalya Ivanenko), in which the above-named people explain why people should vote for the Socialist Party. The article has the expressive title: “The socialists are convinced that …”.  The article does not say that those people are candidates for National Deputy, only their positions are given. The article was not clearly identified as political advertising.

The Cherkasy region

From 1 September the Head of the RSA O. Cherevko who headed the regional headquarters of Our Ukraine – National Self-Defence and the heads of the DSA heading district headquarters went on leave. However, while on leave, Cherevko together with the DSA Heads “on leave” held a travelling gathering of the Regional State Administration in the town settlement Mankivka.[12]

Such activities by public officials led to the use of State and communal resources in the electoral campaigns of political parties in power, and merged the image of non-party power with a specific political force. These actions violated the principles of free electoral campaigns, and also influenced the expression of will of the voters. One can cite the following occasions:

Luhansk region

In Slavyanoserbsk (Luhansk region), a rally was held on the central square with the use of flags, songs and mottos of the Party of the Regions. During working hours employees of organizations of the district centre (including civil servants) were sent by order to the rally.

As the Stakhaniv “Telegazeta” reported, “The first deputy of the Mayor of Stakhaniv, who is also the head of the city branch of the Party of the Regions Serhiy Hladkykh, spoke during a rally to mark the Day of the Miner about the need as he put it to uphold the reforms begun by the government of Viktor Yanukovych. The event dedicated to a professional festive and organized from the city budget, was effectively turned into a pre-election rally for the Party of the Regions.

  Kherson region

  On 21 and 22 August the Head of the Kherson Regional State Administration B.V. Silenkov presented the residents of Kakhivka and Nova Kakhivka with President Yushchenko’s social initiatives. An advertisement about the event with the participation of the Head of the RSA was printed in orange. After the presentation, campaigning material from the bloc “Our Ukraine – National Self-Defence” were handed out.[13]

  We should note attempts by the Central Election Commission [CEC] to put an end to such covert pre-election campaigning by those involved in the election process.

  The CEC reacted to pre-election campaigning by President Yushchenko which took place on 15 September 2007 in Lviv. In his address during a “People’s viche”, the President used the following words: “I would ask you to support my team - “Our Ukraine – National Self-Defence”. I am convinced that as President and citizen, I have the right to make this request since it is precisely with this force – patriots and professionals which is capable of effectively helping me to implement our plans”. The CEC issued a judgment on 22 September 2007 №471 found the actions of Ukraine’s President V.A. Yushchenko to have violated the electoral rights of citizens, the rights and legitimate interests of participants in the electoral process, and ordered Ukraine’s President V.A. Yushchenko to refrain from participating in pre-election campaigning during the pre-election campaign for the pre-term elections of National Deputies of Ukraine on 30 September 2007.

Violation of the principle of universality of the elections

  A considerable number of Ukrainian citizens were deprived of the right to vote in the elections due to the unprecedented poor quality of the voter lists; the unsatisfactory work of the working groups on voter records, and the electoral commissions on drawing up and checking voter lists, as well as in the lack of a developed mechanism for border guard officers to record information about Ukrainian nationals who had gone abroad and then returned. Such problems were identified in all regions of Ukraine.

One can name the following reasons for these problems:

  The voter lists taken as the basis already contained numerous shortcomings. These were the lists which had been used during the 2006 parliamentary elections, although in certain cases the 2004 lists (!) were used. This meant that the shortcomings from the 2006 lists were repeated in 2007. Information began emerging from many regions on the eve of voting that the “new” lists had not retained the corrections made by voters themselves during the 2006 elections.

There was a lack of coordination, efficiency and a single format for the work of State structures. Information from many of these structures, for example, bodies of the Ministry of Internal Affairs, State Registrar offices, military registration offices, reached the working groups on voter records belatedly. Furthermore the information from different bodies often came in different formats which made processing the data extremely difficult.  For example, the records from passport offices are kept on paper making the information as a rule little suited for processing by the working groups. There simply was no single system for a computerized exchange of information which also presented obstacles to establishing the lists.

  The fact that personnel at local level were not ready for innovations in collecting data caused additional problems with the voters’ lists. Considerable problems in forming the lists were created by the ill-considered attempt to computerize the process for checking the lists modelled on the electronic register of voters. The use of software which had not been properly tested, as well as the inadequate qualification level of the technical workers (who, due to lack of time, did not received the proper training, when added together led to systematic distortions of the lists in some constituencies. As a result of all these problems arising during work on the lists, the voter lists had many varied inaccuracies with no indication of the year of birth or no full address, (the number of the apartment block or flat not being given), and people were either not included on the voter lists, or included twice.

  The working groups on voter records, and later also the electoral commissions, proved unable to adequately make amendments to the voter lists. This affected entire groups of the population: those who had only recently turned 18; students in their first year at higher academic institutes; as well as people who had recently changed their last name, or their place of registration.

  The State Border Guard did not cope with the task it had been given and as a result the information which it passed to the electoral commissions was not satisfactory. On the basis of lists provided by the border guards, 570 thousand people were removed from the voter lists, although a considerable percentage of these people had returned to Ukraine as much as a month before the elections. The rights of several hundred thousand Ukrainian citizens were thus violated.[14]

  As well as the poor quality of the voter lists, CVU also identified other problems linked with the organization of the elections, for example, the lack of ballot papers at some special polling stations, with this also depriving some voters of the chance to vote.

  Most of the above-mentioned reasons were caused in the first instance with the inability of the authorities and volunteers from political parties in the electoral commissions to appropriate implement the new norms of electoral legislation on drawing up the electoral list.

  We must state that the wish of the legislators to avoid vote-rigging by making the procedures for preparing and checking the voter lists more complicated, ended up with  the authorities being unable to ensure the rights of hundreds of thousands of voters to take part in the voting.

  The following are typical examples of infringements and problems identified regarding participation by voters on the eve of voting day.

Kyiv region

In Vyshneva, 11 streets ad hostels of a milk factory, involved more than 600 voters, were not added to the list at polling station №72.

Lviv region

In Sokal, Territorial Electoral District [TED] No. 118, the polling stations received old voter lists. None of those voting for the first time were included, and there were also names of people who had died. In the hostels attached to the Lviv Ivan Franko National University (TED No. 112), the electoral list contained the names of fifth-year students who had left the hostel. Students from other regions were included on the voter lists twice – at home and at the student hostel.

Odessa region

In the Suvorovsky district of Odessa TED No. 132, a lot of young people aged between 18 and 20 were not included on the list; in TED № 132, polling station № 44: 5 buildings from the sector of private housing were not included; TED № 132, polling station № 151, which includes 5 hostels attached to the Odessa Mechnikov National University did not have approximately a third of the students from the hostels on their list.

Kherson region

TED № 187: The village of Novourkrainka, Skadovsky district.  There are 400 voters in the village. 170 of them were not included on the list, while there were the names of people who had died a long time before.

TED № 187: Polling stations № 121 and 122 ascertained that 900 voters from one village (Velyki Kopani) had been erroneously recorded as being from the village Dobrosillya. This was due to a technical error when inputting the information and the situation was rectified.

Khmelnytsky region

The working groups on voter records based the voter lists on those used in 2004 for the first round of voting in the Presidential elections. The lists did not therefore contain a part of the streets, and buildings housing up to 400 people (Starokostyantynivske shosse 9 in the town of Shepetivka).

Cherkasy region

In the lists of polling station No. 14 of TED №199 (Cherkasy) for one of the hostels there were 500 names of people who had already graduated, while the list did not contain the names of 250 students who had begun living in the hostel that year.

The nine-storey multi-apartment blocks №№ 71-79 on Gagarin St in Cherkasy were “forgotten about”, with this becoming known thanks to the CVU helpline and vigilance of voters[15]

On voting day problems with voter lists and not being able to vote were on an ever greater scale. The following are standard cases recorded by CVU observers throughout the country on voting day.[16]. For convenience, we have systematized the problems which led to voters being deprived of their right to take part in the voting.
”Forgotten” by the authorities when they were drawing up the voter lists

Dnipropetrovsk region

TED №28: from 800 to 1500 students who should have voted at polling stations located at the student hostels were not included in the lists. The same number of students who had already graduated were “dead souls” on the list.

Transcarpathian region

160 buildings on Kapushanska St in Uzhhorod were not included in the lists.

Kyiv

TED №221, polling stations №№ 61, 63, 67: approximately 300 voters in each of the stations were not included in the voter lists. There were mainly students’ polling stations.

Rivne region

TED № 154, town of Dubno   – two blocks (with a total of around 60 flats) on Starobudska St were not included in the lists.

Kherson region

TED №187, Tsurupynsk. For the second elections in a row a street (Internationalna in the centre of the city) was “mislaid” and not on the voter lists. On the street in the evening of 30 September there was a large-scale disturbance as voters deprived of their right to vote expressed their indignation.

Khmelnytsky district

A crowd of voters who had not been put on the list gathering near the building housing the District Electoral Commission [DEC], demanding that they be given the chance to vote.

Cherkasy region

TED № 205, polling station №2 (Uman):  Around 500 students living the hostel were not included on the voter list.  There were 2, 000 voters in all at the polling station.

Problems of voters who left the country on the eve of the voting

Dnipropetrovsk region

People came with complaints about the voter lists to the DEC from the entire region, but especially those from big towns. The overwhelming majority complained of having been removed from the list as the result of information received from the Border Guard service.

Donetsk region

The Donetsk City Mayor Oleksandr Lukyanchenko at his polling station №3 (TED №39), together with journalists, was unable to vote. His name had been removed from the voter list on the basis of information from the State Border Guard Service although he had received an invitation to come and vote. At the beginning of September Lukyanchenko had been abroad, but had returned on 3 September.

TED № 42, Artemivsk: More than 40 complaints were made to various polling stations over voters having been removed from the lists although they had returned to the country long before voting day.

Transcarpathian region

TED № 69, town of Berehovo:  Apporximately 50 percent of the voters were removed from the voter lists. A similar situation was seen in other border areas. This occurred due to the border guards not having collected people’s card stubs when they returned to Ukraine.

Overall, around the 69th electoral district 16, 000 voters were removed from the lists on this basis. Around the 70th electoral district) there were 21 thousand such voters; around No. 67 – 7, 500 voters; around the 66th – 6, 000. The District Electoral Commission for the 68th electoral district (Mukachevo and the district around it) refused to provide such information.

Ivano-Frankivsk region

TED № 80, poling station №55, Tysmenytsya.  A voter was removed from the voter list according to information from the Border Guard Service despite having returned on 2 September.

TED № 84, polling station № 11, Kolomya. A couple returned to Ukraine on 22 September. The husband was included, but the wife removed from the voter list.

Ternopil region

According to CVU observers, the DEC №165, in Ternopil received a lot of complaints on voting day from people who had returned from abroad, sometimes a month earlier, but had been excluded from the voter list.

Kharkiv region

TED № 173. On voting day in the DEC a huge queue formed of voters writing complaints over their unlawful removal from the voter lists. In general, almost all the voters who could not find their names on the lists had travelled to Russia in September and had been removed from the lists on the basis of information from the Border Guard Service.

Kherson region

TED №184, polling station №113: two voters – husband and wife – arrived at the polling station where they had been on the voter list, but found that their names had been removed on the on the basis of information from the Border Guard Service

Khmelnytsky region

DEC No. 195: 700 people were unable to vote due to information not being provided on time from the Border Guard Service.

Luhansk region

TED № 103, polling station №26: 906 students from the East Ukrainian National University came to vote having received invitations, yet found that they had been removed from the list.

Kherson region

TED №184, polling station № 83, Kherson. A voter arrived at the polling station where she had always been on the voter list on voting day. It turned out that she had been removed from the list on the basis of Precinct Electoral Commission Decision №184 from 20.09.2007 at the submission of the Komsomolsk Department of the Ministry of Internal Affairs.

TED № 184, polling station № 81, Kherson. Two voters were unable to vote since they had been removed from the voter list as deceased on the submission of the working group on voter records.

Not enough ballot papers on voting day

Kyiv region

In the SIZO [pre-trial detention centre] at Bila Tserkva, polling station №76 – there were 45 voters, but only 17 ballot papers. On 29 September an attempt had been made to solve the problem however the District Electoral Commission did not have spare ballot papers.

Kherson region

TED №184, polling station №47: Special (hospital) polling station. 32 ballot papers were issued even though there are 50 voters on the list. The elections could not continue and the members of the commission approached the District Electoral Commission №184.

TED № 184, polling station № 151, Kherson: The polling station ran out of ballot papers: 116 were received, however there were 126 voters.

TED №186, polling station №56, Kakhovka: Special (hospital) polling station. There were not enough ballot papers, and patients were told they would need to go to vote at their own polling stations, according to their place of registration.

Cherkasy region

TED № 199, polling station №61 – special polling station in a hospital for war veterans. There were 145 voters on the list, yet the polling station received 102 ballot papers. This was despite the fact that the head of the commission had complained of this in plenty of time to the DEC. The shortfall in ballot papers was not rectified and around 40 voters were not able to vote. The veterans were extremely offended at such treatment.

TED № 199, polling station №124 – special polling station in a maternity hospital: there were around 140 voters on the voter list, yet only 60 ballot papers. The head of the commission sent a complaint to the prosecutor’s office.

Problems with voting for those who checked information about themselves in the voter lists on the eve of voting day

Kyiv

TED № 222, polling station №144: A person who had turned 18 on 23 September applied to the Precinct Electoral Commission to be included on the list. The Commission stated that the person had been added, however on voting day the person’s name was not on the list.

Cherkasy region

TED № 202, polling station №3 (town of Zolotonosha): a Mr Moreiko who had in advance checked that he was on the voter list, on voting day itself proved not to be there. He is convinced that the lists were changed. He has made a complaint and intends to make an application to the prosecutor’s office.

Chernivtsi region

10 voters approached both the CVU and DEC №207. They had applied to the DEC to be included in the voter lists before 26 September, i.e. in full accordance with the legally established timeframe, yet did not find their names on the voter list. It is clear that the DEC did not register and deal with their application.

Other infringements of electoral rights were also noted, however, in contrast to the above-mentioned, they were not of a systemic nature, but rather isolated incidents.

The pre-term parliamentary elections of 2007 thus continued the tradition set by the 2006 parliamentary elections. They passed on the whole in a democratic and transparent manner, without systematic pressure on voters’ expression of will and on those taking part in the electoral process. The most serious infringements were seen in the fact that some voters were prevented from voting due to undemocratic amendments to electoral legislation and the inability of the authorities and electoral commissions to carry out legislative procedures on drawing up and checking voter lists. As a result, there was large-scale infringement of the constitutional principle of the universality of elections during the 2007 parliamentary elections.

 

2.  Pre-term elections of city, settlement and village heads

As already mentioned, in 2007 132 pre-term elections were held for city, settlement and village heads. These elections can be divided into two groups.

1)  Those called due to a head standing up for personal reasons (illness, accidents, etc). In the majority of cases these elections passed in a calm atmosphere without infringements of voters’ rights;

2)  The pre-term local elections came about due to a worsening of the socio-political situation in connection with a new surge of redistribution of communal property and land of the territorial communities. The wave of such pre-term elections began at the end of 2006 with scandalous elections in the city of Cherkasy which were accompanied by various infringements and controversial court practice. Most of the attempts to exercise the right to hold local referendums (described in more detail below) can be viewed within this group.

Perhaps the most revealing in this respect were the pre-term elections for the Mayor of Irpin (Kyiv region). On 3 April 2007 deputies of the Irpin City Council adopted a decision to terminate pre-term the powers of the Mayor Myroslava Svystovych. One of the reasons for her dismissal lay in the different approaches taken by the Mayor and by the majority of the deputies to resolving land issues. Despite the fact that on 4 April Myroslava Svystovych lodged an appeal with the court against the decision of the City Council, by 5 April already the Verkhovna Rada had declared the date of new elections.  At that moment the legal status of the Verkhovna Rada itself was unclear since the President had just issued his decree dissolving parliament.

On 17 June 2007 the voting took place. Representatives of the Committee of Voters of Ukraine who observed the voting and vote count recorded a number of flagrant violations of electoral legislation which in their view could have influenced the outcome.  This included campaigning by public officials of the National University of the State Tax Administration in favour of one of the candidates and probable attempts to influence how students of the university themselves voted. For example, the CVU received information that students of the Tax Academy had been offered 50 UAH for their vote. They apparently had to vote for one of the candidates and use their mobile telephones to photograph the ballot paper with the relevant proof while in the polling booth. The most suspicions regarding the possibility of such violations were aroused by polling station No. 11 (inside the Tax Academy). Students voted there in groups, holding their mobile telephones in their hands and after voting headed off for the faculty of the tax police which the security guards did not allow outsiders to enter.

The Irpin city territorial electoral commission through its own unlawful decisions made the work of observers considerably more difficult and effectively provoked the declaration of results invalid at some polling stations.

For examples, on 6 June 2007, the territorial electoral commission passed an unprecedented decision stipulating that observers on voting day and during the vote count must keep at least 2 metres away from members of the precinct commissions. And although on voting day the territorial commission checked this decision and recommended that the heads of the precinct commissions allow observers to go up unimpeded to members of the commissions with comments, acts or complaints. However not all electoral commissions took this clarification into consideration. It was for this reason that at the fifth polling station the vote count was disrupted and the voting there declared invalid.

The poor quality of the voter lists could have also had impact on the outcome. For example, two multi-apartment blocks, where residents supported Myroslava Svystovych, were missing from the voter lists

  The elections of the Mayor of Irpin continued a dangerous trend of holding local elections with infringements of electoral legislation and democratic principles begun at the elections of the Mayor of Cherkasy in 2006.[17]

  The winner in the elections was declared to be Oleh Bondar who received 293 votes more than Myroslava Svystovych.

This was with the voting at one polling station where there were a large number of Svystovych supporters, having been declared invalid (840 people had cast their votes at that station).

In the territorial electoral commission’s protocol on the results of the elections, 3, 102 ballot papers were declared invalid. The number of voters who took part in the voting was, according to this protocol, 12, 568, however if you add the number of invalid ballots mentioned in the protocol with the votes for each candidate, as well as the votes against all candidates, it comes to 2, 767 ballot papers more than the number of voters stated on the protocol to have taken part in the voting.[18]

  On 12 November the Kyiv Administrative Court of Appeal revoked the decision by the Irpin City Council on 3 April 2007, reinstated Myroslava Svystovych as Mayor of Irpin. However she only succeeded in receiving the court ruling a week later, and for another week she was unable to ensure enforcement of the court ruling.  City Council was declared unlawful and Ms Svystovych reinstated as Mayor. At first private security guards did not allow her to enter the City Council, and then deputies of the Council themselves. Then on 26 November the Kyiv Administrative Court of Appeal suspended enforcement of its own previous ruling in connection with the launching of proceedings on newly-emerged circumstances. The civic network and website “Maidan” reported that the second decision had been taken by a judge who had not been on the panel of judges who considered the Svystovych case. Immediately after this, the judge fell ill, and after recovering went on leave, and therefore in the Court of Appeal they informed that the case would be examined no earlier than at the end of January 2008.[19]

  We can thus note that the non-adherence to democratic norms and violation of voters’ rights and those of participants in the electoral process during local elections remain problems for Ukraine’s political situation.

 

3.   Exercising the right to initiate and take part in nationwide and local referendums

  Another problem area in safeguarding citizens’ rights remains the right to initiate and take part in nationwide and local referendums. It should be noted, firstly, that initiating referendums and gathering signatures in support of their own initiatives remains an effective strategy for political parties to involve people. It is actively used on the eve of and during various political, and in particular, electoral campaigns. Secondly, some of the provisions of the current Law on referendums are out of date and require clearer wording. Most importantly, they make it virtually impossible for people to exercise their right to initiate referendums.

  At the beginning of August 2007 the Bloc of Yulia Tymoshenko [BYuT] began a campaign for a referendum on amendments to the Constitution. In almost all regions of Ukraine held meetings of initative groups on holding a referendum. The participants in these meetings passed proposals on holding a nationwide referendum at the people’s initiative on amendments to the Constitution and approved the wording of 9 questions which it was proposed to put to a nationwide referendum.[20]

  All the documents on registration of initiative groups were submitted to the relevant bodies of local self-government. From the end of August, the Central Election Commission [CEC] began regularly passing decisions refusing to register the initiative groups. It justified its position by citing Constitutional Court Judgment No. 3-rn from 27 March, in accordance with which a check was carried out by the Central Election Commission into the compliance of nationwide referendums at the people’s initiative with the Constitution.[21]  According to the results of this legal check, the CEC found that issues put forward for a referendum do not comply with existing constitutional norms.

  At the same time, the Party of the Regions also initiated a referendum, this time regarding Ukraine’s possible joining of NATO, and granting the Russian language the status of second State language. Party of the Regions activists began collecting signatures although the CEC had not previously registered any initiative groups. According to Andriy Mahera “There are all grounds for being aware of this information. However in my view there are no legal grounds for sending these signatures to the President and drawing up a CEC protocol.”[22]

Local referendums

  There are no open general statistics regarding initiatives to hold local referendums which makes monitoring of practice in holding local referendums and observing the rights of citizens to take part in initiating and holding local referendums difficult.

  From information we were able to obtain, we can speak of numerous infringements of this right. On the one hand, representatives of the authorities who have no interest in carrying out “spontaneous” initiatives of the people use formal norms of an old-fashioned law on referendums, court procrastination, and so forth in order to turn down people’s applications to hold referendums. On the other hand, members of the initiative groups are often unable to fully implement the procedure of the Law.

  All attempts to hold local referendums can be divided into two groups:

  A smallish first initiative group seeking to hold referendums – those initiated by the local councils themselves to resolve issues of concern to the community or to give legitimacy to sometimes extremely dubious regions by the majority of the deputy corps.

We recorded referendums held in three territorial communities. In two of them (in the Kosivsk district of the Ivano-Frankivsk region on 4 March 2007 and in the town of Bila Tserkva on 27 May) they did not eventuate due to low turnout. For example, in the Kosivsk district 29% of the population voted, while in Bila Tserkva 25% of the voters. Many years experience of observing shows that such a turnout of voters is typical for local elections and reflects the level of activity of the local communities. This means that the turnout requirements set out in the Law on referendums since Soviet days present a serious obstacle for the active percentage of territorial communities given the indifference of voters to local problems.

A larger second category of initiative groups for holding local referendums is linked with attempts to get either city or village mayors, or deputies of local councils dismissed. Most of such initiatives come from the local political opposition. They all end in failure for the initiators themselves.

Members of the territorial communities of Kyiv, Kharkiv, Odessa, Sumy, Kherson and many other cities, settlements and villages held meetings to create initiative groups for preparing referendums. They even collected signatures in support of these initiatives, however on no occasion were they able to achieve the announcement of a local referendum.

  In each individual initiative group problems arose at very different stages, during the meetings, when submitting documents to register the initiative groups with the city executive committees, etc. in individual cases on the basis of the signatures collected, it remained for the deputies to announce the start of a referendum, yet the deputies voted against the holding of a referendum.

  The following are typical examples of the “obstacles” which arise at various stages in preparing local referendums.

  In Kherson on 11 March members of the public who had a meeting schedule to elect an initiative group on holding a local referendum on suspending ahead of term the mandate of the local authorities, were unable to get into the hall of the local Palace of Youth at the time designated for the meeting. The hall was already totally crowded out by supporters of the local authorities and the meeting was disrupted.[23]

  On 30 March the residents of Kherson did manage to hold the meeting[24], however the local authorities refused to register the initiative group due to infringements when holding this meeting. The court upheld the decision of the local authorities.

The next attempt to hold a meeting aimed at initiating a local referendum took place in Kherson only on 24 November 2007. The meeting was held on the territory of one of the industrial enterprises in the city. As a result, several people who were unable to get to the meeting lodged a suit with the court against the infringement of their right to take part in such events. . It was only on 21 February 2008, after several hearings, that the Komsomolsky District Court in Kherson rejected the suit. At present the case regarding the lawfulness of the location for the meeting on initiating a local referendum on the dismissal of the Mayor of Kherson is under consideration in the Odessa Administrative Court of Appeal.

In Kyiv at the end of 2006 and beginning of 2007, three meetings were held to create initiative groups on a local referendum aimed at ousting the Mayor of Kyiv. A check was made by the Department for legal back-up of the Kyiv City Council Secretariat of the documents for their adherence to the Law “On all-Ukrainian and local referendums”, submitted by the initiative groups, and formal discrepancies were found. For example, 42 people had not signed undertakings to observe Ukrainian legislation on referendum, while 23 people had mistakes in their personal information, etc.[25]. Usually if such inaccuracies are identified during the registration of candidates for National Deputy, the Central Election Commission gives them time to rectify them or to remove the names of specific individuals. In the cases involving initiative groups, the local authorities turned down the right of the whole initiative group to exist.

In Kharkiv last year a civic organization “Kharkivyanin” tried three times to initiate the holding of a referendum. All attempts failed for the simple reason that the Mayor refused to register the initiative groups, and the courts dragged out review of the cases.

For example, at a meeting on 3 April an initiative group was formed to organize a Kharkiv city referendum. One of the issues approved by the meeting was the revoking of the decision by the 11th session of the 5th term of the Kharkiv City Council “On approving items of community problem of the territorial community of the city of Kharkiv which may be granted in concession (№ 26/07).

However the city authorities did not register the initiative group. On 3 May the initiative group filed a suit with the court. The preliminary court hearing took place almost a month later, on 30 May. The court did not take into account the application regarding Article 3.11 of the Code of Administrative Justice with regard to examination of a case within “a reasonable timeframe”, that is, the shortest timeframe for examining and passing a decision of an administrative case sufficient for providing timely (without unjustified procrastination) judicial defence of infringed rights, freedoms and interests in public-legal relations. The first court hearing on the application lodged on 3 May was scheduled for 9 July.[26]

  In Odessa on 16 November 2007 a meeting took place aimed at creating an initiative group for holding a local referendum. The Mayor of Odessa did not register the initiative group on the grounds that the notification about the meeting was sent late. It arrived at the Mayor’s address on 7 November. The Legal Department of the Odessa City Council concluded that the meeting on holding a local referendum which took place on 16 November 2007 had infringed requirements of current legislation (the ten-day term for notifying the authorities of a scheduled meeting had not been kept)[27]  However on 22 November the Mayor of Odessa did register, through his Instruction № 1322-01r another initiative group of the Odessa City Council on a local referendum. This group was not able within a month to collect the requisite 74 thousand signatures of Odessa residents in support of the local referendum.[28]

  The Mayor of Sumy on 27 December 2007 registered an initiative group on holding a local referendum which was formed at a meeting on 1 December. In the space of a month, the initiative group gathered 28, 635 signatures which they submitted to the City Executive Committee. The latter carried out a selective check of the signatures. In all they considered 7 thousand signatures and checked 3, 536, or 12.3% of the total. Of these they identified and formally recorded 1, 549 faked signatures, this coming to 43.81%.[29]

  Even though 24, 635 signatures of Ukrainian citizens and members of the territorial community of the city of Sumy were needed to support the holding of a local referendum (and there were enough votes), the City Executive Committee refused to accept the signatures and to hold the referendum. In justifying this decision, an analysis was also used of the content of the questions to be raised at the referendum for their compliance with Ukrainian legislation.[30].  However, after some hesitation, the Sumy Mayor H. Minayev on 27 February did put the issue of setting a local referendum “On the pre-term revoking of the mandates of the Sumy City Council of the fifth term and the City Mayor H.M. Minayev” forward for consideration at the City Council session. There was a named vote in which the deputies did not support the holding of a local referendum..[31]

  The situation was almost identical in the city of Kalush in the Ivano-Frankivsk region.

On 16 December a meeting of Kalush residents to initiate the holding of a local referendum was held. 460 members of the gathering were registered, and they formed an initiative group made up of 53 members. In 10 days the initiative group collected 7 thousand signatures of Kalush residents (5.4 thousand signatures were needed). The deputies of the City Council considered the question of a referendum at a special session on 25 January 2008.  During the discussion they found inconsistencies in the protocols of the meeting which had elected the initiative group (in the list of registration, some of the participants had given the name and number of their street, but not the name of the city, the protocols for submitting the signatures did not have a date, and some signatures of people on the registration list and on the undertakings to adhere to the Law on referendums were slightly different. They also found other similar mistakes).[32]. It is curious that these “inconsistencies” were not a problem at the stage of registering the initiative group. As a result, the majority of deputies voted against calling a local referendum.

We could continue the list of unsuccessful civic initiatives.

We thus see that during the electoral processes, a large number of manipulative techniques are used aimed at achieving their ends at any cost. At local elections so-called corporate raid set ups are used and one encounters dubious court rulings.

This situation arouses concern not only from the public, but also from representatives of the judiciary. For example, the Plenary of the Higher Administrative Court of Ukraine, in a Resolution No. 2 from 02.04.2007, stated that “a study of court practice in cases on disputes linked with the election process or referendum process shows that some courts make mistakes in applying the provisions of the Code of Administrative Justice of Ukraine”.

There are a large number of infringements of people’s right to take part in local elections and local referendums. There is also effectively no control over the observance of voters’ rights and those taking part in the elections at local level by the law enforcement agencies, the mass media or the public.

 

4.   Conclusions

In 2007 there were a considerable number of elections and attempts to hold referendums at various levels – from pre-term parliamentary elections to pre-term local elections in some territorial communities and initiatives for holding both nationwide and local referendums.

We can point to the consolidation of the positive trends in observance of electoral rights during the holding of national elections seen during the elections to the Verkhovna Rada in 2006.  There is no information about the use of political pressure or deliberate attempts to influence the free expression of citizens’ choice. Nor were there cases of vote-rigging, obstructions from the authorities put in the way of those taking part in the elections being able to campaign, etc. Although there were sporadic attempts by public officials to use their official position to benefit their own political party, in conditions of political competition, these were in the majority of cases neutralized. The electoral commissions should, nonetheless, have been more severe in reacting to them. At present, the problems of first priority are those linked with the right to universal elections. Due to unwarranted legislative restrictions and the inability of the authorities and electoral commissions to carry out existing procedure on preparing and checking voter lists, hundreds of thousands of voters were deprived of their right to vote.

In contrast to the elections at national level, serious concern is aroused by the observance of the rights of citizens during local elections and with regard to the initiating of local referendums. Last year at local level, there were cases of administrative pressure, obstructions from the local authorities, attempts to rig results, and others.

 

5.   Recommendations

Experience of election campaigns has demonstrated that current legislation on the elections and referendums in many ways fails to meet generally accepted international standards, does not ensure the needs of the organizers of elections, those taking part in the elections, or, in fact, of the voters. Cosmetic amendments to legislation before each lot of elections partially resolve urgent issues, however systemic changes are needed. In 2009 -2010 Ukraine awaits regular Presidential and local elections, although one cannot exclude the possibility of pre-term parliamentary or local elections, and nationwide or local referendums.

Uncoordinated and contradictory electoral laws need to be standardized and united in a single electoral code which should consist of a general part, standard for all types of elections, and specific part, unique for each type of elections and referendums.

 

The electoral system

Shortcomings in the existing electoral system must be eliminated. This system leads to problems of excessive centralization of the parties; the possibility of usurpation of power by a narrow circle of the party leadership; a considerable number, not only of non-party candidates who do not wish to link themselves with existing political parties, but also regional members of political parties, are prevented from standing for office. One of the options for resolving the problem could be the introduction of elections with open regional candidate lists.

  Elections to different bodies should be separated in time. Holding such elections together makes them much more difficult to organize and reduces control.

 

Register of voters

The State authorities should ensure implementation of the Law on the State Register of Voters, although the timeframes for its implementation, envisaged in this law, have already been missed. The Central Election Commission should, at long time, hold an open tender to draw up software. The preparation of this register should be completed by the end of 2008.

  The norm in the electoral code about using information from the State Border Guard Service in order to remove voters from the voter lists at polling stations should be revoked. Practice showed that the norm was virtually impossible to implement.

 

Electoral commissions

  The Central Election Commission should be made up of specialists chosen on professional and not political criteria. The CEC should become an independent body organizing electoral processes, and not be held hostage to political intrigues.

  District and precinct electoral commissions should be made up of professions who have undergone the relevant training. The periods allowed for the formation of electoral commissions should be sufficient to enable careful selection of members of such commission. The timeframes for preparation by the electoral commissions of the procedure for voter should also be increased. Pay for members of electoral commissions should be significantly increased.

  A staff reserve for members of district electoral commissions needs to be set up.

 

 

Voting and the vote count

Voting and the vote count according to open candidate lists will require additional measures for educating both the voters and members of the commissions. Present procedure for vote counting demands more from commission members than is physically possible for members of Precinct Electoral Commissions. It would therefore be worth considering the expediency of introducing a centralized vote count in District Electoral Commissions. The Precinct Electoral Commissions should simply ensure the actual process of voting, while the vote count would be undertaken by trained professions under the vigilant control of participants in the election process, the public and the media.

  Ukrainian nationals presently abroad need to be given a real chance to take part in the voting. The current system deprives several million of the most active citizens from taking part in the voting. It would be sensible to organize postal voting within each country or allow voting over 10 days up to the election, with the use of the appropriate measures of control.

 

Nationwide and local referendums

The Law on referendums passed in 1991 has long been out-of-date. The national referendum in 2000 and attempts to hold local elections have shown that with this law it is impossible to hold a productive referendum. The question of holding referendums must be clearly regulated and not dependent on the political climate.

  There should, in the next months, be an unequivocal legal assessment of the millions of signatures collected in order to hold three nationwide referendums during the electoral campaigns of 2006 and 2007, which should be handed to the CEC.

 



[1] Prepared by Dementy Byely, Kherson Regional Branch of the Committee of Voters of Ukraine (CVU)

[2] In the preparation of this section, we used CVU monitoring reports on the early parliamentary elections which are available at:: http://www.cvu.org.ua.

[3] Existing commitments for democratic elections in OSCE participating States  – Warsaw: OSCE – ODIHR, 2003 – p. 17

[4] CVU Report on monitoring the preparation for the pre-term elections of National Deputies of Ukraine from 19 July 2007.

[5]Ukraine’s elections open and competitive but amendments to law of some concern, international observers say

http://oscepa.org/News/Media/168-Ukraine%5C’s%20elections

[6] Organization of election observers: http://www.electiondog.net/doc.php?lang=rus&docid=3167.

[7]  “temnyky” were the instructions issued to media outlets under President Kuchma telling them what to cover, and how, and what was to be left without coverage.  “In recent times, and especially in connection with the elections, many media experts have expressed concern about the “news items” which are clearly being produced and broadcast, especially on television, for money.  The term for such material is “jeansa” (translator0

[8] From a Resume of the results of press monitoring during the pre-term elections in 2007 (August – September))http://www.prostir-monitor.org/results2007.php?reg=19&period=all&zmi=zvit&typ=all&typ2=p&menu=22&menu2=2

[9] Most of the news features about the participants in the elections were commissioned – monitoring of the Ukrainian media // Interfax-Ukraine – 25 September, 2007 http://www.interfax.com.ua/ua/press-center/press-conference/69093/

[10] Analysis of the electoral campaign for 6-14 September 2007, CVU Monitoring bulletin №6. 14.09.2007 http://www.cvu.org.ua/?lang=ukr&mid=fp&id=1470&lim_beg=90

[11] The use of administrative resources at the pre-term elections of National Deputies. CVU Monitoring bulletin №5. 07.09.2007 додаток до http://www.cvu.org.ua/?lang=ukr&mid=fp&id=1461&lim_beg=105

[12]  Ibid

[13]  Ibid.

[14] CVU speaks of the first problems with voting in the pre-term elections. CVU Press release http://www.cvu.org.ua/?lang=ukr&mid=fp&id=1486&lim_beg=75

[15] Analysis of the election campaign from 19-27 September 2007 and a general assessment of the pre-election campaign at the pre-term elections. CVU Monitoring bulletin №8 from 28.09.2007 http://www.cvu.org.ua/?lang=ukr&mid=fp&id=1480&lim_beg=90

[16] From press releases on the results of the work of CVU observers on voting day №№1-4: http://www.cvu.org.ua/?lang=ukr&mid=fp&id=1484&lim_beg=90 , http://www.cvu.org.ua/?lang=ukr&mid=fp&id=1485&lim_beg=90 , http://www.cvu.org.ua/?lang=ukr&mid=fp&id=1489&lim_beg=75 , http://www.cvu.org.ua/?lang=ukr&mid=fp&id=1491&lim_beg=75

[17]  More detail is available in “Infringements at the elections for Irpin Mayor could influence the outcome” CVU Press Release from 18.06.07 http://www.cvu.org.ua/?lang=ukr&mid=fp&id=1356&lim_beg=120 in Ukrainian and in English at: http://www.khpg.org.ua/en/index.php?id=1194996548&w=Irpin and http://www.khpg.org.ua/en/index.php?id=1183585746&w=Irpin

 

[18] IRPENIADA. On Monday Irpin residents will picket the President and court http://maidanua.org/static/news/2007/1197040522.html

[19] Ibid

[20] The questions were as follows:  1. Do you support a Presidential form of government whereby the President of Ukraine is elected by universal franchise, is the head of the State and heads the Cabinet of Ministers? 2. Do you support a parliamentary form of government whereby the post of President of Ukraine is abolished, the Cabinet of Ministers is appointed and dismissed by the Verkhovna Rada, and the Prime Minister is the head of State?  3. Do you support the election and dismissal of judges by the people? 4. Do you support extending the rights of self-government by granting all bodies of local self-government the right to from their own executive bodies? 5. Do you support the establishment of effective control over the authorities by granting constitutional status to the parliamentary opposition? 6. Do you support the abolition of immunity for higher leaders of the country, National Deputies and judges? 7. Do you support the cancellation of all benefits for higher leaders of the country, public officials and National Deputies? 8. Do you support stripping deputies of their mandate if they have broken their promises to the people? – with the right to pass the relevant decisions being given to congress of the party (bloc)? 9. Do you support simplifying the procedure for holding nationwide and local referendums in order to involve the people in directly exercising power?

[21] See, for example, the decision of the CEC №238 from 27 August 2007 http://www.cvk.gov.ua/postanovy/2007/p0238_2007.htm

[22] The CEC will not consider signatures gathering in support of a referendum on joining NATO // Deutsche Welle  www.dw-world.de.

[23]  BYuT has taught the Kherson authorities to respect the community  // BYuT website, http://www.byut.com.ua/ukr/news-3101

[24]  In Kherson supporters of Yulia Tymoshenko are initiating a referendum // BYuT website, http://www.byut.com.ua/ukr/news-3433

[25]  Another two initiative groups on holding a local referendum // KCSA official website:, http://day.kmv.gov.ua/news.asp?IdType=1&Id=84901.

[26] More detail on the situation can be found here:  http://hds-kharkiv.org.ua/2007_07_02/426.htm

[27] See the instruction of the Mayor of Odessa from 03.12.2007. № 1364-01 http://www.misto.odessa.ua/index.php?u=vlast/document/docod, 1, 12, 2007, 1333

[28] Instruction of the Mayor of Odessa № 1589-01r. from 28.12.2007 // The newspaper “Odessa news” http://izvestiya.odessa.gov.ua/Main.aspx?sect=Page&PageID=9487.

[29] With a majority of votes the deputy corps of the Sumy City Council has rejected a proposal from an initiative group to hold a local referendum. // Sumy City Council official website  http://www.meria.sumy.ua/ua/archive/news_events/2008/02/21/referendum.

[30]  Ibid.

[31]  On 13 April there will be no local referendum – the deputies have decided // Sumy City Council official website, http://www.meria.sumy.ua/ua/archive/news_events/2008/02/27/referendum

[32] There will be no referendum on dissolving the Kalush City Council // The newspaper “Vikna” , http://vikna.if.ua/print.php?id=3672.

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