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15. RIGHT OF CITIZENS TO FREE ELECTIONS AND PARTICIPATION IN REFERENDA

   


[1]

The rights to free elections and participation in the referenda were disregarded in 2012, both with respect to the national legislation and elections process. Arbitrary and non-transparent adoption of certain normative/legal acts led to mass violations of the election rights of the citizens; sometimes these latter were unable to exercise their rights at all. E.g. after the hasty passing of the Law of Ukraine “On All-Ukrainian Referendum”[2] the local referenda became impossible, as they were not stipulated by the aforementioned Law, while the previous Law “On Conducting All-Ukrainian and Local Referendum” was invalidated by the law-makers.   

The erroneous, non-transparent and thoughtless steps in law-making have become common. First of all, they are not politically expedient; second, the persistent problems which have not been resolved for years, became the source of election rights’ violations; third, monopolization of authority by a single political force and extensive use of administrative resource combined with inertia and even helplessness of the law-enforcement bodies in election rights protection and the selectivity of justice are evident.  The elections of this year have added some nuances to the “routine” picture: extremely high level of indirect “buying of votes” used by the candidates in the majority districts and actual refusal of the law-enforcers to investigate these violations, which occurred literally “under video-cameras” and were witnessed by the whole country.   

In general last year 282 extraordinary elections of the city, settlements and village heads and dozens of interim and repeated elections of the local councils’ deputies took place in Ukraine.[3] However, the elections of the people’s deputies of Ukraine made the headlines. In our survey we analyzed the major tendencies with respect to observing election standards in the course of the national elections summarizing the reports submitted by the national and international observers and information collected by public activists and journalists.  

Elections of the people’s deputies of Ukraine[4]

General assessment

According to the assessment done by the most renowned national public organizations of observers, the elections of the people’s deputies of Ukraine of 2012 were marked by violations of the fair and democratic elections’ standards and became the most questionable nationwide elections since 2004.

Members of “Opora” [Support] public network pointed out that the elections of the people’s deputies were characterized by artificial restrictions of competitiveness in the elective process and grave violations of the equal opportunity principle for the parties and candidates; the use of illegal technologies in mobilizing administrative resource and bribing of voters. All these factors had their decisive impact on election campaign and did not help in ensuring reliability of its results. In “Opora” observers’ opinion, these violations were systemic. [5]

Members of all-Ukrainian NGO “Alliance Maidan” created an interactive map of the elections-related violations and published it on “Maidan” site. The violations uncovered by them in all the regions of the country can be classified as follows:

-        - preferential treatment or direct support of some subjects of the elective process by the authorities alongside with the discrimination of others;

-        -mass deliberate distortion of facts in lieu of providing objective and unprejudiced information to the voters;

-        - numerous free or discounted services for the voters, offered with the purpose of urging them to vote for a certain candidate or party;

-        -unstable and non-transparent election law allowing for various manipulations.

Public activists sustain that the state that “failed to provide citizens’ protection from manipulation and illegal coercion, which becomes, alongside with corruption, a serious public threat”, bears the lion’s share of responsibility for the violations.[6]

The Ukrainian Voters’ Committee stated that the violations of elective standards were registered at all stages of the election campaign, even prior to its official launching. The most gross violations included:

•    campaigning conducted with bribes and use of administrative resource;  

•    procedure for setting up election commissions; 

•    counting votes in single-mandate districts.[7]

The international experts’ assessment mainly overlapped with the assessment offered by the local public observers. Thus, under the Statement of the international experts on preliminary results and conclusions, the parliamentary election of October 28, 2012  were characterized by the lack of equal opportunities for the participants, mainly, due to the abuse of administrative resource, insufficient transparency in election campaign and partisan funding, and to the lack of appropriate media coverage. Some developments preceding the elections in fact became a step backwards in comparison with the previous elections in Ukraine. The voters had a choice of candidates from different parties. The Election Day was rather quiet and peaceful. The ballot process and counting of votes was assessed positively. The process of establishing final results was assessed negatively due to the insufficient transparency[8].

Election legislation remains unstable and imperfect

Amendments to the law regulating the elections of the people’s deputies in 2012 violated a number of fundamental election rules spelled out in the Code of good practice adopted by the Venice Commission in 2002, i.e. requirements stipulating stability of election law, impossibility of changing election system or defining the boundaries of election districts less than a year before elections.[9]

First, the Law on elections of the people’s deputies of Ukraine was passed by the Supreme Rada in November 2011, while the election campaign was officially launched in summer 2012. The Law “On Specifics of Ensuring Openness, Transparency and Democratic Nature of the Elections of the People’s Deputies of Ukraine” was passed less than a month prior to the beginning of election process without public discussion.

During election campaign the rules for the use of important elective procedures were changed, in particular, the order of lots casting for the members of circuit and district election commissions, changes of ballot venue without changing the voting address etc.

Second, the boundaries of single-mandate election districts were established three months prior to the official launch of the election campaign.

Third, the law-makers consistently ignore the voters’ rights to the repeated ballot in case of annulment of the results in local election districts.[10]

None of these factors were beneficial for the stability of the election law.  

Also, introducing amendments to the election law, the people’s deputies systematically ignore the recommendations of the international experts and observers’ missions compiled on the basis of previous elections’ results and analysis of the draft law “On elections of the people’s deputies of Ukraine”.

It is noteworthy that the election law was passed at the time of acute political confrontation without any prior public discussion or consideration of public experts’ opinion. Thus, once this law is implemented, there was no way to define its gaps and flaws and avoid future problems

These events resulted in the violations of election rights. The Ukrainian Voters’ Committee in its summarizing report pointed at the lack of representation from some parties and candidates in the election commissions; abuse of administrative resource; frequent changes in the membership of circuit and district commissions; violations in establishing the ballot results in single-mandate election districts.  

It is noteworthy, that the election law of 2011on elections of the people’s deputies, although deficient in many cases, provided for fair and transparent elections. As noted in the final report of the observers’ mission of OSCE/ BDIHR the law, if implemented appropriately, created solid foundations for democratic elections.[11]

International standards were disregarded in electoral districts’ formation

The Code of good practice in electoral matters stipulates that electoral districts’ boundaries under single-mandate system requirements, shall be set impartially and with due account of the opinions of the commission composed predominantly of independent members, including an expert in geography, a sociologist and proportionate number of parties’ members, and, if need arises, representatives of national minorities, with due consideration to the size of population, geographic criteria for administrative division and even, when possible, historical boundaries.[12]

In preparation of the elections of the people’s deputies these principles were not fully considered, which fact led, in our opinion, to certain pre-election machinations of “gerrymandering” type, i.e. the process when boundaries are redrawn to get some advantages for a given candidate.

When electoral districts were set in Ukraine, public observers noted the cases when administrative boundaries of rayons or cities of oblast’ order were disregarded; the territories of settlements and villages were divided between different single-mandate districts; the areas of compact national minorities’ settlements were not taken into account, as well as other infringements revealed in the majority of Ukrainian oblast’s. (See Chart 1). Thus, in 15 out of 27 regions of the country the principle of uninterrupted boundaries was disregarded.  At the same time in 2012 the number of regions where the electoral districts were set in violation of the principle of boundaries’ integrity, has increased significantly as compared to 2002. E.g. if in 2002 not a single electoral district within the boundaries of Vinnitsa, Odessa, Kharkiv, Cherkassy, Chenyhyv oblast’s and the city of Kyiv was subdivided into several parts by the areas of other districts, in 2012 the principle of integrity was not observed while establishing electoral districts.

Chart1. Observance of the principle of uninterrupted boundaries in 2002 and 2012

 

Region

2002

 

2012

 

 

2002

 

2012

 

Autonomous Republic of  Crimea
Cr

-

-

Odessa oblast’

+

-

Vinnitsa oblast’

+

-

Poltava oblast’

+

+

Volyn’ oblast’

+

+

Rivne oblast’

-

+

Dnipropetrovsk oblast’

-

-

Sumy oblast’

+

+

Donetsk oblast’

-

-

Ternopil oblast’

+

+

Zhytomir oblast’

+

+

Kharkiv oblast’

+

-

Transcarpathian oblast’

-

-

Kherson oblast’

-

-

Zaporizhzhya oblast’

+

+

Khmelnitsky oblast’

+

+

IvanoFrankivsk oblast’

+

+

Cherkassy oblast’

+

-

Kyiv oblast’

-

-

Chernivtsi oblast’

-

+

Kirovohrad oblast’

+

+

Chernyhyv oblast’

+

-

Luhansk oblast’

-

-

Kyiv

+

-

Lviv oblast’

-

-

Sebastopol

-

-

Mykolaiv oblast’

+

+

 

Notes: «+» – the principle of integrity of district boundaries observed;, «-» –not observed.  .Differences between regions are shown in grey.  

Source: final report of the UVC NGO on results of observation of elections of the peoples deputies of Ukraine in 2012  

As compared to 2002 the number of districts randomly divided into several parts without any justification increased substantially (from 8 to 23.) Here are some examples.  

 

Vinnitsa oblast’                                                                                         

The territory of electoral district № 12 was divided into 4 parts, separated by the territory of the electoral district № 11. This division is unnatural, as all the electoral districts formed in the oblast’ in 2001 had uninterrupted boundaries.

 

Donetsk oblast

In 2001, when districts were established within Donetsk oblast’, only electoral district № 50 was divided into several parts, while other districts’ boundaries were integral due to the administrative and territorial structure of the oblast’. In 2012 the number of the districts artificially divided increased to 5 (districts №№ 50, 52, 53, 55, 56).

 

Luhansk oblast

In 2002 only one district of Luhansk oblast’ was artificially divided into several parts (district № 110), while in 2012 the number of these districts increased to 5 (districts №№ 107, 108, 110, 111, 112).

 

Kharkiv oblast

In 2002, artificially formed enclaves did not exist in the oblast’ territory. In 2012 such an enclave came into being due to the separation of some electoral districts from the main area of the electoral district № 172 (respective districts ended up at the territory of the electoral district № 170).

Cherkassy oblast

District № 195 was artificially divided into several parts, although the boundaries of all the electoral districts set up for    2002 elections were uninterrupted.

 

Chernyhyv oblast

The territory of the electoral district № № 210 made up in 2012 of two parts separated by Nosivka rayon, was included into electoral district № 209. This division is artificial. In 2002 the boundaries of all the electoral districts were uninterrupted.

 

City of Kyiv

Formed up in 2012, electoral district № 221 is artificially divided into two parts by the territory of the electoral district № 211. Meanwhile, not a single electoral district set up in Kyiv in 2001 was divided into several parts.

 

Division of the territories under village and settlements councils between several districts

Vinnitsa oblast’

The territory under Ilkiv village council (Vinnitsa rayon) was divided between the districts - the polling precinct № 050149 was attached to district № 11, and the polling precincts №№ 050150 and 050151 – to district № 12.

 

The territory under Ksaverivka village council (Vinnitsa rayon) was divided between the districts №№ 11 and 12, each having one polling precinct located in the territory under the village council.  

Kyiv oblast’

The village of Ruda (Skvira rayon) was divided between the districts №№ 91 and 92, each having one polling precinct located in the territory under the village council.  

 

Disregard of compact settlements of the national minorities in setting electoral districts

In some areas of Ukraine the portion of national minorities is quite substantial among the total number of voters. These minorities tend to reside in compact settlements, which fact should be taken into account in drawing electoral districts’ boundaries. Nevertheless, the information provided by the regional offices of the Ukrainian Voters’ Committee, testifies to the fact that the interests of the national minorities are not fully taken into account in establishing single-mandate districts.

 

Chernivtsi oblast

A part of Sadhora rayon in Chernivtsi, earlier comprising one electoral district № 202 with its center in Chernivtsi, with polling precincts № 730481 – 730486, became a part of single-mandate electoral district № 203 with its center in Novoselytsa town. As a result, about 9 000 voters speaking Ukrainian language ended up in the district where Rumanian-speaking population is predominant. Besides, the electoral district № 203 also absorbed parts of Storozhyntsy rayon villages (Velyky Kuchuriv, Kamyana Mykhalcha, Snyachiv, Hlybochok, Tysovets), where Ukrainian language is predominant. On the other hand, a number of Rumanian-speaking villages of Storozhyntsy rayon, which formerly were a part of the district  № 204, were included into the district № 202, so that about 10 000 Rumanian-speaking voters had to vote in the area where Ukrainian-speaking population is predominant. Therefore, the interests of Rumanian-speaking electorate were ignored in Chernivtsi oblast’.

 

Trans-Carpathian oblast

In establishing single-mandate electoral districts and organizing elections of 2002 the Central Election Commission met the interests of compact Hungarian settlements in Trans-Carpathian oblast’. As a result, electoral district № 72, covering parts of Uzhgorod, Berehove, Vynhradiv, Khust and Tyachiv rayons was formed.  In 2012, however, compact Hungarian settlements were divided between 5 districts (68, 69, 71, 72, 73), significantly decreasing the opportunities for minorities’ representation in the parliament. Therefore, the interests of Hungarian electorate were ignored in Trans-Carpathian oblast’.

Partially such “selective geometry” can be accounted for by the fact that the Law in force “On Elections of the People’s Deputies of Ukraine”  banishes the possibility of exceeding the anticipated deviation in the number of voters per district from approximate average number of voters in single-mandate districts ( while in 2002 electoral districts could be formed, exceeding the said deviation). The impact of political factors on the configuration of electoral districts’ boundaries cannot be ignored either. Thus, while establishing electoral districts    № 182 and 183 (Kherson), the smaller part of the Dniprovsky and Suvorivsky districts of the Kherson city, comprising the area of the neighboring villages with about 20 thousand voters residing in them, was transferred from electoral district № 182 to electoral district  № 183. Observers believe that this division substantially increased the chances of the candidate representing official party, who ran in the electoral district № 182, of getting more votes than the other candidate not representing the ruling power. Ultimately this latter refused to run for the seat at all.  

The division of Chaplyntsy rayon (Kherson oblast’) which formed a “red belt” of sorts in the southern part of Ukraine between two neighboring electoral districts  (185 and 186) immediately decreased the chances of majority candidates from the CPU in these electoral districts. The communists, as a result, lost in both districts, although in the district 186 the CPU ranked first on party lists.[13]

Hence, in the process of establishing electoral districts   election standards were distorted leading to manipulations and violations of election rights.

 

Certain CEC decisions led to the violation of equal election rights

Both national and international observers noted that the CEC provided technical support for the elections in due time and order stipulated by the law. The CEC ensured the functioning of the web-site to cover the voting process at the polling stations, regularly updated voting information on its own site, and ensured the Internet users’ access to operational information of the District Election Commission on the ballots results in the districts and specific stations.   

However, we believe that some CEC decisions led to the violation of equal election rights

First, the draw procedure used in appointing members of the District Election Commission (hereinafter - DEC) and Precinct Election Commissions (hereinafter – PEC) (the CEC resolutions №№ 69 and 895) led to serious misbalance in the commissions’ composition for the benefit of unpopular parties, which practically did not participate in the election campaign. 

Second, the CEC decision on providing for voting at the place of voters’ stay, without changing the voting address in electoral districts only (resolution № 893) prevented mass “migrations” of voters on the election day, but restricted the voters’ right to ballot and contradicted the Law “On State Registry of Voters”.  

In our opinion, after the facts of the abuse of so-called “voters’ migrations” were uncovered, the CEC had to initiate the verification of these facts by law-enforcement bodies instead of restricting citizens’ voting rights.  

Third, the CEC refused to sum up the results of ballot in five “problematic” single-mandate districts. As a reminder – under the Law “On Elections of the People’s Deputies of Ukraine” the CEC must determine the elections’ results and is authorized to call for another election only in cases spelled out unambiguously, while inability to determine the elections’ results in a single-mandate or state electoral districts    is not on the list of the said cases.

Fourth, the CEC reacted to gross violations of the election law in five electoral districts    only, having ignored many other districts where serious violations in the ballot count and establishing the election results occurred, while the differences in the number of votes obtained by two candidates, who got the majority of votes, were insubstantial. E.g. the situation in Nova Kakhovka electoral district № 184, where the difference in votes in favor of Party of Regions’ winning candidate M.Dmytruk and self-nominated candidate I.Vynnyk constituted 22 votes only. The protocols of the same PEC with wet seals, reflecting different voting results were revealed.[14]

As a result, the CEC efforts in ensuring the legality of the election process were criticized by the observers. Here are the conclusions compiled by the international experts “Despite the fact that the CEC is the principal state body responsible for the ensuring the uniform use of the election law, in practice it failed to take sufficient steps to regulate the most important aspects of the election process. Especially it concerned such aspects as ensuring the transparency in determining the voting results, adherence to the rules of conducting election campaign, prevention of indirect voters’ bribing, response to the violations with respect to mass media and providing for efficient satisfaction of complainants’ appeals”.[15]

 

Imprisonment of opposition leaders in lieu of fair removal of political opponents from the election process

The scandalous imprisonment of the opposition leaders Yu.Tymoshenko and Yu.Lutsenko in violation of the fair justice norms, and, as a result, their elimination from the election process has become widely known and puts in doubt the democratic nature of the elections.

 

Registration ofdoubles”, i.e. popular politiciansnamesakes as election manipulation

In many single-mandate electoral districts   several candidates with the same names, and sometimes, same first names and patronymics, were nominated. It created the background for cheating the voters on the election day with the purpose of reducing  popular candidates’ chances for victory, by having voters give their votes for his “double” – a “technical” candidate. The “Opora” observers identified 31 electoral districts, where the “doubles” ran for the seat. This technology was used against 44 candidates.

The single-mandate electoral districts had the largest number of candidates-namesakes: district №80 – three Volkovs, № 98 – three Boykos, № 122 – three Cossacks, № 225 – three Parkhomenkos. In some districts pairs of namesakes were registered. In electoral district No 92 (Kyiv oblast’) pairs of Hudzenkos, Svitovenkos and Tytarenkos were found; in electoral district No 91 – pairs of Boykos and Poplavskys,  while electoral district   No 98 had two Mishchenkos and Polishchuks on the lists. Luhansk oblast’ electoral districts    could also boast of large number of namesakes: 104 (2 Vasylenkos, 2 Shapovalovs, two Honcharovs ), № 108 (2 Moshenskys, 2 Ternikovs), № 109 (2 Makarovs, 2 Medyanyks). In electoral district № 160, (Sumy oblast’) pairs of Bilous’s and Nohas were found, while electoral district   №191 in Khmelnitsky oblast’ had two Shpaks and two Bondars on the lists.[16]

The “Opora” members sustain that this “technology of non-competitive struggle” was used within the legal field, so the CEC had to register all the “doubles” that provided the required set of documents and reliable personal information.

According to the UVC some “doubles” abstained from participation in the ballot even before the voting took place in parliamentary elections of   2012.

 

Formation and operation of the election commissions still remains a crucial issue for the Ukrainian elections. This time the problems were predetermined by the law and had a “systemic” impact.

 

The representatives of ruling power got the majority among the election commission seats.

As stated above, the CEC approved the draw among parties in setting up the DEC (resolution№ 69 of April 19, 2012), which first led to representation of less-known political parties without their own structures in many oblast’s, in the majority of DEC in the country[17]. Respectively, the influential parties, which participated in the elections de facto, e.g. UDAR or “Svoboda” were not represented in the DEC.

The graph devised by “Opora” members very clearly shows the lack of proportionality in the DEC representation (see the chart).

Source: NGO “Opora” web-site

http://oporaua.org/vybory/parlamentelections

 

At that stage many random people became members of the DEC. Some of them had no relevant expertise, while the others even resided in remote regions. Sometimes, the DEC membership came as surprise to these individuals. Hence, the problems at the first stage of commissions’ operation arose. Here are some examples. 

 

Lviv oblast

3 members of the DEC of electoral district   № 121 resided permanently in the Autonomous Republic of Crimea or Kyiv and would not answer to the phone calls. The same situation occurred in the electoral district № 123.

 

Luhansk oblast’, Severodonetsk

The DEC №106 could not convene as required by the due to the lack of quorum. On the second try the commission managed to convene with minimum quorum, i.e 10 members. As it turned out, three DEC members resided permanently in the Autonomous Republic of Crimea: the DEC deputy head – unemployed I.Krasylnykov ( “Bratstvo”[Fraternity] party); a commission member – unemployed K.Dzykovych (“Russian block” party) and her colleague entrepreneur (“Rus’iedina” [unified Russia] party). Two other DEC members live in Kyiv oblast’ – Yu.Vyakhireva (“Iedina Rodina”[Unifted Family] party) and Ye. Cherednichenko (“Ukrainian Anarchists’Union”); another member –O.Postupalsky (“Ruska iednist’” [Russian Unity] party) resides in Khmelnitsky oblast’. 

 

Kherson oblast’.

The operation of two DEC at once was threatened. Two newly appointed commission heads failed to appear for the DEC meetings – the head of Suvorivska DEC № 182, 75-year representative of the “Russian block” S. Hrushin from Symferopol and the head of Tsuriupinsk DEC 20-year old T. Yevsovych (“Iedyna Rodina”[One Family] party). Other commission members had no phone numbers or other contact information for the newly appointed heads, so they had to organize themselves and conduct the first meetings in the order stipulated by the law.   

Cherkassy oblast.

In electoral district №194 21-year old I.Semesheva (“Ukrainian Anarchists’Union”) was appointed the head of DEC, and failed to appear at the first commission meeting. After the opposition appealed to Cherkassy Administrative Court complaining of inaction of the DEC №194 head, it turned out that I.Semesheva has nothing to do with the “Ukrainian Anarchists’ Union”, which promoted her to the commission.  Moreover, she stated that she never applied for the position of the DEC head. I.Semesheva further stated that she only applied for the position of observer on behalf of the party “United leftists and peasants”.

 

At the second stage a number of replacements occurred in the DEC. Over August-November of 2012 dozens of decisions were made by the CEC concerning the changes in the DEC composition[18]; as a result the primary DEC composition was changed by more than 50% by the election date. The DEC rotations continued even on the elections eve. These frequent changes in the DEC composition had a negative impact on the organization of electoral process in general and, to a large extent, invalidated the CEC attempts to organize the DEC members’ training on electoral matters.  

As a result of these replacements the majority of DEC became controlled by the Party of Regions.  

 

Here are some examples from the regional UVC reports.

Autonomous Republic of Crimea

The Secretary of the DEC № 3 represented the “Bratstvo” party and at the same time was the member of city council representing the Party of Regions. The deputy head of the DEC № 5 was nominated by the “Ukrainian Anarchists ‘Union”); although at the former parliamentary elections her represented the Party of Regions in the DEC. The head of the DEC of the district № 4 from the “National Labor Union of Ukraine” prior to her appointment was the member of the local Party of Regions branch.

 

Donetsk oblast’

Out of 18 members of the DEC of the electoral district № 57 10 worked in the “Illyich Mariupol metallurgy works”. They were promoted to the commission by the Party of Regions and the People’s Party, Russian block, the “Ukrainian Anarchists’Union”); Liberal Party of Ukraine, parties “Iedyna rodyna”, “Bratstvo”, “Ruska iednist’”, Ukrainian Green Party, “Rus iedyna”. The head, head’s deputy and the secretary also used to work at the plant.  

 

Odessa oblast

At the meetings of the DEC of the district № 135 the fact that out of 18 commission members 16 represented the Party of Regions was made public. In any case, 6 members (including the leadership) worked in Odessa Law Academy, headed by the candidate from this district S.Kivalov.  

Kherson oblast

After changes in the DEC membership, the majority in all commissions and total control over all the DEC was gained by the Party of Regions. 56 commission members out of 90 either represented the Party of Regions or were linked to this party in their former activities. Altogether they were nominated by 11 parties. Thus, the head of Suvorivskk election commission № 182 A.Murashkin was nominated by the “Russian block”. At the same time he is a member of Kherson TEC nominated by the Party of Regions. The deputy head of the DEC № 183 Т. Kreiza, this time nominated by the political party “Molod’ do vlady”, in  2010 the head of the DEC for the presidential candidate V.Yanukovych. The secretary of this commission A.Kirova nominated by the People’s Party fraction, at the same time represents the Party of Regions in Kherson oblast’ TEC.

The DEC № 184 was headed by the representative of the Liberal Party of Ukraine M.Hryhorets, who earlier was a member of this commission, but represented the Party of Regions.  

The secretary of the DEC № 185 О. Poliheshko was nominated by the “Russian block”, but at the same time she is a member of Kakhovka TEC from the Party of Regions.  

 

Chernivtsi oblast’

7 members of the DEC of the electoral district № 20 were linked to the Party of Regions. Similarly to other DEC, formally they were nominated not by the Party of Regions, but by the other parties – the aforementioned   People’s Party, Russian block, the “Ukrainian Anarchists’ Union”; Liberal Party of Ukraine, parties “Iedyna rodyna”, “Bratstvo”, “Ruska iednist’”, Ukrainian Green Party, “Rus iedyna” etc.

It is noteworthy that under the UVC experts’ evaluation, the DEC operation was controlled not only by the Party of Regions, but also by other political forces and candidates in the single-mandate election districts.

 

The similar situation was observed in the appointment of PEC.

On September 13, 2012, right before the draw, the CEC cardinally revised the procedure for the draw and, by its resolution № 895 introduced the same mechanism that was used in setting up the DEC. 

The draw process revealed a lot of violations. According to “Opora” observers’ report, “the setting up of PEC was conducted in a manner incomprehensible for the majority of the election process subjects, without any transparency or due control. Many DEC members in charge of draw did not adhere to the established order. The changes in draw order, introduced by the CEC, had a negative impact on the process as a whole and transferred the negative practices of one-time draw from DEC to PEC.”[19]

As a result, many random people ended up as commission members and had to be replaced right after their appointment. In some districts the PEC composition was changed up to 70-80%. The actual control over the PEC operation was seized by the Party of Regions.

Therefore, in the process of forming district and polling stations’ commissions, manipulations with the so-called “technical parties” led to the disproportionate representation of one political force, i.e. the Party of Regions, in the commissions’ composition. Such manipulations were observed in all the regions of the country, and we can classify them as systemic attempts to gain control over the election commissions. 

 

The lists of the voters were better as compared to the previous elections

At the stage of compiling and verifying voters’ lists the observers uncovered a number of problems: inclusion of the so-called “dead souls” and “doubles” into the lists; absence of some voters’ names from the lists, although these voters participated in the previous elections; assigning the destroyed and unfinished buildings, restaurants, commercial facilities etc. to the electoral districts.   However, these instances were much fewer as compared to the last elections.  

According to “Opora” evaluation, 55% of the polling stations had no problems with respect to the voters’lists; in 42% of the polling stations between 1 and 50 voters could not find their names in the lists of one district; in 3% of the polling stations these figures amounted to 50 - 100 voters.[20]

 

Main types of violations revealed in the course of elections

The observing campaign of this year differed from all the former ones – several large scale public initiatives involving the voters to uncovering of the election standards’ violations were implemented in the country.

First of all, the “Alliance Maidan” activists publicized an interactive map of violations on “Maidan” site.[21] The creators of the map claimed that “our map does not and cannot cover all the violations. It can only strive to represent the real picture, and the level of this approximation reflects, to a certain extent, the level of civil society maturity: readiness to discuss the coercion openly, capability of overcoming one’s fears and collecting the documentary evidence and appealing to the law, whatever it might be”.[22] By all account this initiative is very impressive as to the number of uncovered violations, registered by the public activists.[23] In Ukraine such open, transparent and highly visual reflection of violations is unprecedented.  Over the whole monitoring period 7062 notifications of violations have been received; 1632 of complaints were represented on the Map[24]. Usually only the most typical violations, registered by the observers, find their way to the monitoring reports. And despite of the fact that the violations reflected on the Map (see chart 2) are not representative of the violations of public right to vote, they nevertheless show main tendencies of the election campaign of this year, which converge with the official reports compiled by the observers.    

 

Chart 2. Election violations reflected on the interactive map ofMaidansite.

Types of violations systematized by “Maidan”

number

Violation of campaigning process

878

Administrative resource

469

Bribing of voters

401

Fraud

286

Violations in the commissions’ operation

199

Violations on the election day

194

Violation of the equality principle

187

Violation of financing rules

165

Obstruction of pre-election campaigning

113

Use of force

86

After the voting

98

Violation of the rules for providing information

56

Coercion

55

Violation of mass media rights  

41

Violations in compiling the voters’ lists

26

Restrictions of appeal

4

Communications with authorities

53

Source: “Maidan” site

This information provided “Alliance Maidan” activists with arguments confirming systematic violations of the election rights, perpetrated by the authorities. According to the candidate of law O.Severyn “ At this stage of the election process we already have enough grounds to sustain that serious obstacles to in ensuring free choice for voters have been created. Specifically, we are talking about 

1. Use of administrative resource, i.e. the violations of legal provisions and principles of   equal, unbiased treatment of candidates and parties by the subjects of authority, i.e. granting preferential treatment or direct support to some of them, while discriminating the others.

2. Fraud, linked to administrative resource – mass cheating of the voters, when the routine fulfillment of tasks, stipulated by the law for public officials using budget funds, is presented as the result of the operation of a candidate or a party.  It is contrary to the provisions of the Law of Ukraine “On the Elections of the People’s Deputies of Ukraine” stipulating for the voters the opportunity of expressing their free will based on “objective, unprejudiced information” provided to them.   

3. Indirect bribing of the voters  - in violation of p. 13, Article 174 of the Law “On Elections…” certain benefits and services are offered to the voters free of charge or at the discount rate to urge them to vote for  a given candidate or party. As of today, the state charged by Article 3 of the Constitution with the “responsibility for its operation” remains the most serious culprit due to its failure to provide

а) stability, transparency, clarity of election law, i.e. adherence to the principle of legal determination;    

b) the  setting up of election commissions by  transparent and legitimate process;

c) protection of public against manipulation and illegal coercions, which is becoming, alongside with corruption, the biggest social threat”.[25]

The conclusions drawn by the public activists who realized this brilliant initiative, were fully confirmed by the national observers. Thus, UVC and “Opora” identified the following negative tendencies:

 

Obstructing pre-election campaigning and participation in the elections

The cases of obstructing campaigns, both prior to and after the beginning of the electoral process were common. The number of such incidents increased with the approaching of the Election Day. The major violations perpetrated by the official bodies’ representatives included banning of the campaigning events, restricting parties’ and candidates’ access to mass media, where they wanted to place their election materials, to advertising resources etc.    

Examples of obstruction of pre-election campaigning

 

ПРИКЛАДИ

Autonomous Republic of Crimea

In October (city of Yevpatoria, electoral district №4), militia officers blocked the delivery of concert equipment to the campaigning event organized by the candidate M.Kotlyarevsky. On October 19, 2012 the court ruled that the stadium chosen as the venue of the event, was in a precarious condition, and, consequently, banned the event.  

The Crimean Committee of the CPU informed that on October 21, in the city of Krasnoperekopsk, the CPU activists had been assaulted by the youngsters identifying themselves as the members of the Party of Regions. Militia remained inert and refused to take any action to detain the culprits.

The candidate from a single-mandate electoral district № 5 І. Sahaydak stated that his campaign was deliberately disrupted by the local authorities in the city of Kerch. He claimed that the advertising agency contracted to install respective big boards, removed them on the order of the executive committee of the city council.

 

Vinnitsa oblast’

The candidate from the electoral district № 16 O.Lantukh shared the information that on October, 4 between 8.00 pm and 8.20 pm the oblast’ TV channel VDT-6 had to transmit his pre-election program paid for by public funds. However, at 7.30 pm the cable transmitter was switched off in the town of Mohylyov-Podilsky, and the signal was restored only at the end of the program.   

 

Donetsk oblast

In September the head of Makiivka city CPU committee V.Rudneva stated that the meeting between the CU leader P.Symonenko with the students of Makiivka Economics and Humanities Institute was banned without any justification.  The rector just cancelled it two hours before the scheduled time, referring to the recommendations allegedly received from the city education department.

 

Zaporizhzhya oblast

In August the “Udar” party declared that the authorities influenced the decision of advertising agencies not to install two big boards announcing the party leader V.Klychko visit to Zaporizhzhya.  

A similar incident was registered in the electoral district № 74. The candidate from the said district P.Sabashuk informed that an official of the municipal investment agency in charge of the advertising prohibited Sabashuk’s election materials from being advertised on the big boards.

 

Kyiv oblast

In September the activists of the “Udar” party headquarters for Kyiv oblast’made it known that the law-enforcers in Brovary illegally dismantled two campaign tents of the party and confiscated all the informational materials distributed there.    

   In the town of Vyshgorod, which was the center of electoral district № 96, 3 big boards, showing the “Udar” candidate D.Kreynine, were dismantled. Eventually they were replaced with the Party of Regions’ boards.  

The candidate from “Bat’kivshchyna” O.Kishchuk suffered intimidating messages and threats left by the anonymous persons on his cell phone. He was also threatened directly by the bureaucrats from the rayon state administration. According to the candidate, someone tried to put his house in Knyazhychy village on fire, using  flammable mixture.  

On September 11, in Brovary, militia put down the campaign tent of “Bat’kivshschyna” . As became known later, the information materials stolen in the action, were found in the public works department of Brovary executive committee.  

The village council head in Svitylnya village (Brovary rayon) banned campaigning on behalf of any parties, but the Party of Regions. He also gave an oral order to remove all the election-related printed materials (if they did not promote ruling party or its candidates) from the mail boxes.  

 

Mykolaiv oblast’

The candidate from the electoral district № 128 S.Isakov on a press conference of August 9 informed about the pressure exerted by the head of rayon administration (M.Kruglova) through the member of city council O.Omelchuk (in charge of outside advertising in Mykolaiv)on the owners of ad carriers with the purpose of making them break the contracts they signed with Isakov for his election campaign materials.  

 

Kherson oblast

The candidate from the electoral district № 185 (SPAS party) Ye.Kovalenko advised in October that the mayor of Kakhovka city O.Karasevych and the head of rayon militia department on October 18, 2012 hampered the campaigning event in favor of the said candidate. Specifically, the activists were distributing and spreading the candidate’s brochures, when the mayor started to reprimand them rudely. The activists ignored him. Then a militia detachment was called and detained one of the campaigners.   

 

Khmelnitsky  oblast

In August, the “Bat’kivshchyna” representatives approached two communal services agencies seeking their support in providing facilities for their meeting in the town of Shepetivka. However, they met with the oral refusal, while the houses’ caretakers received the orders to remove all the leaflets announcing the rally from the walls and invitations – from the mail boxes.

 

Chernivtsi oblast

In August the city council of Storozhynets (electoral district № 202) filed a petition with the court requesting the banning of festivities planned by the opposition parties for August 23-24, during which their candidates had to meet the voters in the central square of the city. The city council leaders explained that the square would be used as fair-grounds at the same time.   

 

Sebastopol

In September, pressure was put on the candidate D. Byelik representing the “Russian block“party in  single-mandate electoral district № 224. The officials from Gagarin rayon state administration with the local militia officer and the management of “Zhylservice № 23” office for  1.5 hours were trying to get into the apartment of the head of communal services agency № 99, with which D.Byelik had a contract for renting the advertising board on the house No 22, POR.  Their request was for the materials to be removed. On September 10, the prosecutor’s office and the militia officials crashed into D.Byelik’s apartment to do the search there. At that time D.Byelik did a presentation in the Sebastopol city council.  On September 19, at night-time D.Byelik’s campaigning materials were removed from 14 bill-boards. Also, the candidate claimed that some of advertising agencies’ owners were summoned to the city council and required to break the contract with D.Byelik under the threat of license removal or physical destruction of the advertisement carriers.    

 

Pressure on candidates

Although the instances of politically motivated pressure on candidates in the course of election campaign were not systematic, they were observed in many regions and consisted, mainly, in obstructing the campaigning process or exerting pressure on businesses linked to the candidates.

Mykolaiv oblast’

Electoral district № 132. Over the month of October the pressure was exerted on “Kornatskys’ Agrofirma” LTD, belonging to the united opposition candidate A.Kornatsky. As a result of this pressure the candidate had to leave Ukraine.

 

Kherson oblast

Electoral district № 186. On October18, 2012 the law-enforcement bodies conducted the search of the market and the house belonging to the candidate F.Negoy.  

 

Kyiv oblast

Over the month of October the tax inspection was auditing the operation of an agricultural enterprise belonging to the candidate from a single-mandate district № 92 V. Gudzenko, who was competing with the candidate S.Kashuba  nominated by the ruling party.

 

In Bila Tserkva district over the month of September such pressure was exerted on two rating candidates simultaneously – L.Dryhalo (the candidate from the People’s Party) and the candidate O.Marchenko, nominated by both “Svoboda” and United opposition. The pressure consisted in random verifications of the companies, controlled by the candidates, organized by tax inspection, fire inspection, labor safety department, sanitary/epidemiological service etc. They checked up L.Dryhalo’s meat factory and   O.Marchenko’s granite quarry.

 

Zaporizhzhya oblast

On August 1 the tax militia filed a criminal claim against the self-nominated candidate P. Sabashuk (electoral district № 74). Although the prosecutor’s office insisted on detention as preventive measure, the court established another preventive measure in the form of bail amounting to 17 000 UAH. All the Sabashuk’s property was placed under arrest. Nevertheless, Sabashuk continued his campaigning, so in September the prosecutor’s office requested another preventive measure in  the form of bail amounting to 4 million UAH.

The use of public resources for campaigning, PR advertising on the state-run TV channels, participation of public officials in pre-election campaigning during the working hours.

The election campaign of 2012 was characterized by the unprecedented (at least, since 2006) involvement of public servants and local self-governments’ officials in the campaigning process.   The numerous facts testifying to it were reported in all the regions of the country.

Zaporizhzhya oblast

Over September the heads of rayon administrations and relevant departments of the administrations were constantly present at the meetings with the Party of Regions’ candidates. E.g. the UVC registered the fact of the head of Berdyansk state administration Chepurny campaigning for the candidate V. Baranov at the opening of the children’s playground in one of the rayon villages.   

 

Zhytomir oblast

In September the head of the culture and tourism department in Zhytomir oblast’ state administration Yu.Hradovsky, who is the soloist of “Drevlyany” band, during his working hours participated in the concerts in support of the candidate from a single-mandate district  № 67 self-nominated V.Razvadovsky.  

 

Chernivtsi oblast

On September 1 the secretary of the city council of Novodnistrovsk M.Lutchak openly campaigned for the candidate A. Semenyuk nominated by the Party of Regions in electoral district № 204, at the ceremony celebrating the beginning of the new school year.  

On September 16, 2012 the servicemen of the state fire department № 8 (town of Sokyryany, Chernivtsi oblast’) under the Ministry of Emergencies of Ukraine, instead of performing their direct duties, were sticking political ads of the candidate A. Semenyuk ( Party of Regions, electoral district № 204), to the bill-board using their professional equipment. The poster read “Revive and restore. Semenyuk Artem”.

 

Ternopil oblast’,

In a single-mandate electoral district № 66 the spouse of the head of the oblast’ state administration N.Khoptyan was self-nominated for the candidate to the people’s deputies. Subsequently, in September the so-called “meetings with    self-governance activists” were held in many towns and villages. At these meetings the leaders of the rayon state administrations, during their working hours, actively encouraged public to vote for N.Khoptyan.

 

Donetsk oblast

Not only representatives of local self-governments, but also high officials of the central executive bodies were involved in campaigning in favor of specific candidates and parties.

Thus on October 15, 2012 the Minister of education, science, young adults and sports of Ukraine D.Tabachnik paid a business visit to the town of Slovyansk. The Minister had a met with the professors and students of the Slovyansk college of the National Aviation University and Donbas State Pedagogical University. The local media informed that this visit was made possible due to the leader of “Nash region” NGO, the Party of Regions candidate in electoral district № 47 О. Аzarov.

On September 7, 2012 the Prime Minister of Ukraine M.Azarov inaugurated the new sports center with the pool, work-out and fitness facilities in the reconstructed G.Petrovsky’s park (electoral district № 44). During this event the officials highlighted the Party of Regions’ achievements and its local representatives’ contribution to the renovation of the urban infrastructure.  

 

 

Bribing of voters has become extremely common

Bribing of voters has become one of the most common violations of the election law. The candidates to the people’s deputies resorted to bribes all over the country.

The observers believe that this election-related corruption was possible due to the legal gaps, inertia of the law-enforcement bodies in investigating facts of bribing, lack of judicial practice in identifying the infringement and establishing all the circumstances of the violation.

The “Opora” activists stated that “courts in different regions passed controversial rulings on very similar cases. The political parties either failed to introduce efficient mechanisms to curb the operation of the candidates using bribes, or were not motivated to do so”.[26]

The observers also registered the facts of direct bribing of voters. Specifically the regional UVC reports referred to the following facts. 

 

Volyn oblast

The residents of Kivertsi town and rayon informed that buying of votes in the elections to the Supreme Rada of Ukraine was prepared on the order from I.Yeremeev (electoral district № 23). The voters willing to sell their vote received 200 UAH in exchange for their passport data and identification code. Then they were promised the same amount for the “right” voting. In this respect Kivertsi town council even supported the deputy inquiry submitted by I.Kosmyna (“Svoboda”) to the prosecutor general of Ukraine, prosecutors of Volyn’ oblast’ and Kivertsi rayon requesting the verification of the “buying of votes” by I.Yeremeev.

 

Vinnitsa oblast

The leader of the oblast’ headquarters of the “Bat’kivshchyna” united opposition L.Shcherbakivska advised that the heads of certain village councils influence the voters using network marketing principle: each voter receives about 1000 UAH for voting for a certain candidate or party;if he/she brings another voter, willing to vote the same way, then the original voter is granted additional 200 UAH, while the new one gets   1000 UAH. Allegedly the voters had to receive the cell phones to prove their votes – they would make pictures of the ballots, and then hand the phones to the next bunch of voters.  

Also in Mohylyv-Podilsky the meeting of O.Kaletnik “champions” was organized. The tickets to the meeting were distributed in strict accordance with the lists of participants, who later signed the statements to the effect that they ”support O.Kaletnik’s activity” and received 50 UAH each. According to the UVC estimates, the purpose of this meeting was organizing the network of voters’ bribing in the electoral district №16.

 

 Chernivtsi oblast

On September 17, 2012 the candidate R.Panchyshyn (electoral district № 204) announced that he received reliable information on the facts of direct bribing of voters in this electoral district. He claimed that a group of people was visiting households in every village, offering 150 UAH for each vote. To get the money the citizen had to provide his/her passport data, the copy of identification code and leave his/her signature confirming support of a given candidate. Allegedly this signature was a guarantee that the voter would vote for the said candidate. 

 

Odessa oblast

The election campaign of V.Chorny bore the signs of violations of the election right by bribing the voters. He offered every adult resident of Kyiv district in Odessa up to 1600 UAH if he wins the parliamentary elections. The candidate stressed that the payment would be made irrespective of the voter’s choice.  

 

The violations of the journalistsrights: 2012 can compete only with 2004

According to the results of the “Freedom of Speech Barometer” monitoring conducted by Mass Media Institute with the purpose of assessing the observance of journalists’ rights, the rate of the violations of these rights was constantly increasing in the course of the election campaign in Ukraine.  Thus, between July 30 and October 31 the experts of Mass Media Institute registered 185 violations, 115 of them directly related to parliamentary elections and/or were perpetrated by the candidat4es to deputies.  (See graph 2)

 

Graph 2. The number of journalistsrights violations in 2012 according to Mass Media Institute

The obstruction of journalists’ professional operation was the most common violation   — 98 cases.  37 instances of the reporters’ muggings and intimidations were also revealed; 32 claims against media were filed with the courts.

The journalists were banned from attending the meetings of candidates with their electorate and mass events organized by the candidates; if allowed to attend they were forbidden to take pictures or make videos.  

The journalists investigating the bribing of voters were especially victimized.

 On October 15 in Berdychev (Zhytomir oblast’) a journalist of the internet-publication “Holos UA” K.Kovalenko was beaten by the persons unknown to him. The reporter investigated the bribing of voters in electoral district No 63 by the candidate M. Petrenko. “On October 15  about 9.30 pm the strangers of solid stature twisted my  arms and pushed me inside the SUV, where I was beaten, tortured and intimidated, so that I would not even think of making the information public”- reported the journalist.  

On October 22 the reporters’ team of “Pohlyad” program (Kirovohrad TV and Radio Broadcasting company) – journalist K.Yushchynen and cameraman I.Fomichenko were held by force in the office of the “Bat’kivshchyna” candidate O.Tabalov, while their captors tried to take away their camera and cassettes.  Earlier the journalists videotaped Tabalov’s actions, including bribing of voters, tampering with the election documents and other violations.

On October 22, anonymous persons vandalized the car belonging to the reporter of the Trans-Carpathian oblast’ newspaper “RIO” O.Podebriy. The journalist investigated the bribing of voters by the Party of Regions’ candidate   V.Kovach in the Seredne settlement (Uzhgorod rayon). The incident occurred in the evening of  the day when Podebriy talked to the villagers.

On October 28 on the day of parliamentary elections in Ukraine, 16 instances of obstruction of journalists’ operation were registered, as well as one assault and a case of indirect pressure. The most common violation consisted in banishing journalists from the voting venues.

A lot of DDoS-attacks on the Internet publications site, paralyzing its operation, were registered.

In total the record number of violations of the journalists’ rights over the last 10 years was registered in the elections of 2012.  329 of such facts were revealed before the year 2012 ended, i.e. 3.5 times more than over the whole previous year. The former record figure— 190 cases — was registered in the year of presidential elections 2004.[27]

 

Violations of the citizenselection rights at the time of voting

The official observers of the UVC stated that in general the voting process per se was organized in compliance with the election law requirements; nevertheless some problems were revealed in its organization and implementation (although they were not systemic). The “Opora” observers’ assessment was more critical. Although they also noted that the Election Day did not bring forward any mass or systemic violations which would have significant impact on the voting results, their report stated that “rather frequent instances of illegal actions and abuses perpetrated by various subjects of election process in different districts make it impossible to describe the election process as fair and democratic.” 

The “Opora” public observers were most concerned with numerous cases of violations of the voting confidentiality, illegal distribution of ballots among the voters and centralized transportation of the voters to the polling stations, combined with bribes.[28]

On the election day the “Opora” observers noted the following violations: taking pictures of the ballots ( in 3% of the polling stations), violations of the voting confidentiality, i.t. voting outside the booths or with unauthorized persons present in the booths ( in 3% of the polling stations), distributing ballots without seeing the voters’ passports ( in 2% of the polling stations), providing transportation for the voters ( in 1% of the polling stations), vandalizing the voting boxes ( in 1% of the polling stations), (see graph 3).

Source: “OporaNGO site сайт

According to “Opora” in 91%  of polling stations no violations were found.[29]

Ballot count and establishing the voting results were accompanied by gross violations

As opposed to the voting itself the ballot count in some districts was characterized by numerous violations and other issues which resulted in repeat elections in 5 single-mandate electoral districts and put in question the legitimacy оf elections in some other electoral districts (e.g.  in the electoral districts №№ 11 and 14 in Vinnitsa oblast’, although the election results in these districts were confirmed by the court rulings). The UVC observers identified the following most crucial issues at that stage:    

The majority of electoral districts failed to organize the ballots collection appropriately.

On October 28-29 2012 one could see long lines of PEC at the DEC entrances. Meanwhile by morning many DEC managed to process less than 50% of ballot count protocols (electoral districts № 11, 13, 14, 15, 17, 18, 74, 75, 80, 92, 94, 95, 96, 98, all districts of Lviv and Kherson oblast’s etc.)   

The flaws in the organization of election paperwork collection resulted in leaving documentation packages unattended, without commission members’ supervision.  

Thus in Kyiv oblast’ (electoral district № 95)  the PEC of Vyshneve and Boyarka polling stations on DEC instructions left the election documents at the stations and went home to sleep till 3:00 pm. Meanwhile between 2:00 and 4:00 am the head and deputy head of the said DEC disappeared so that protocols could not be submitted.  The election documents were also left unattended till 10:00 am of October 29, on the order from the DEC of the electoral district № 98 (Boryspil). In the electoral district № 107 (Luhansk obalst’) after a short wait the members of 10 PEC from Stakhanov town left the premises of the DEC and went back to to Stakhanov with their protocols. Their vehicles were stopped by the Motor vehicles’ road inspection and escorted back to the DEC No 107 by Lysyschansk militia officials.

 

Violations in establishing the voting results in the districts

In some districts establishing of the voting results was accompanied by serious violations, which could and did affect the final election results: opening and tearing apart the boxes containing election documents,  (electoral districts №№ 11, 14, in Vinnitsa oblast’), confiscation of election documents by the law-enforcers (electoral district № 132, Mykolaiv oblast’), deliberate defacing of the ballots in support of a candidate who got an insufficient advantage over another candidate; the obstruction of observation over the establishing of voting results exerted by “Hard-looking” men carrying the reporters’ IDs, instances of violence and hooliganism, entering erroneous data to the  “Elections” ІАС database (electoral district № 121, Lviv oblast’ electoral district № 132, Mykolaiv oblast’; electoral district № 159, Khmelnitsky oblast’) etc. Electoral districts №№ 11, 14, 20, 90, 94, 132, 194, 197, 223 revealed the largest number of violations. In 5 districts the violations were so gross that the CEC refused to establish the voting results and appealed to parliament to allow another election round for these districts.

The law-enforcement bodies never properly investigated the violations, which became known to the public.   

 

The CEC refusal to establish the voting results in 5 single-mandate electoral districts

On November 5, 2012 the CEC adopted a Resolution on impossibility of establish the voting results and results of the people’s deputies of Ukraine elections  on October 28, 2012 in the single-mandate electoral districts № 94, 132, 194, 197 and 223 and approached the parliament requesting another elections round in these 5 districts. Parliament, in its turn, charged the CEC with the duty to repeat elections in these districts and calculate the scope of needed funding. It must be said that the CEC did not have any legal authority to do that. Another question arises, as to why these 5 electoral districts have been targeted? As the “Opora” leader O.Ayvazovska states in the summarizing analytical essay, “The situation in e.g. electoral districts 11 and 14 in Vinnitsa oblast’ was very similar to the situation in electoral district No197 in Cherkassy oblast’. Meanwhile the establishing of the voting results in electoral district No194 of Cherkassy presented no difficulty at all. The opposition candidate M.Bulatetsky won with 15% advantage over self-nominated candidate V.Zhukovska. Besides, the final protocol on the results of count in the district was signed by a legitimate commission, and the election documents neither were destroyed nor disappeared.”[30] The lack of opportunity to revote for the voters in the districts where the elections were recognized as invalid, was another problem. To remind the reader, these elections created a precedent when about 30 thousand ballots on partisan lists in 27 polling stations were invalidated by the court ruling. It happened in electoral district № 94 (Kyiv oblast’). [31]

This problem should be resolved at the legislative level.

 

Conclusions

We hereby affirm that the elections of the people’s deputies of Ukraine of 2012 were conducted with the violations of the standards for fair and democratic elections and became the most questionable national elections after the year 2004.

The election legislation remains unstable and imperfect, which leads to its numerous violations.

Some violations, namely, the use of administrative resource in favor of the Party of Regions and its candidates at the time of election campaigns, manipulations with election commissions composition, aimed at disrupting the principle of equal opportunities for the parties and candidates, massive indirect bribing of voters, were systemic.   

Violations of election standards were observed at all the stages of election campaign.

Thus, the electoral districts were formed only 3 months prior to the launching of election campaign, instead of one year earlier as required by the international standards. In establishing the electoral districts geographical boundaries of the areas were disregarded for rayons, cities and cities of oblast’ significance; village and settlements’ councils’ territories were divided between different single-mandate electoral districts; the areas of compact minorities’ settlements were not taken into account. These instances can be regarded as the attempts to use “election geometry” for the benefit of certain candidates.

The election campaign was shadowed by the imprisonment of opposition leaders Yu.Tymoshenko and Yu.Lutsenko, who were brutally excluded from the election process.

Formation and operation of the election commissions remains a crucial issue for the Ukrainian electorate. This time the problems were generated at the legislative level and led to monopolization of the influential levers in election commissions’ operation by the ruling power. Obstruction of election campaigning and hindrances to participation in the elections, created by the authorities, were common occurrences.

Various types of pressure were used by the law-enforcement bodies against the most active candidates who could be a real threat and competition for the ruling power candidates.  

As to the number of violations of journalists’ rights the campaign of 2012 is compatible only with the presidential elections campaign of 2004.

It must be said that in general the Election Day passed without any serious violations, although, according to “Opora” assessment, instances of violations, i.e. illegal actions and abuses perpetrated by various subjects of the electoral process made it impossible to describe the election process as fair and democratic.

As opposed to the voting itself the ballot count in some districts was characterized by numerous violations and other issues which could and did affect the final results of the elections.

The law-enforcement bodies demonstrated their complete helplessness in the face of violations which took place in the DEC establishing the voting results. Even after numerous notifications on violations the law-enforcers failed to investigate the facts.

 

RECOMMENDATIONS[32]

1. The state power bodies should study thoroughly the lessons of the 2012 elections, to eliminate the flaws in the electoral process organization for the repeat or interim elections of the people’s deputies of Ukraine and presidential elections of 2015. Relevant amendments, based on the analysis results, should be introduced into the Law of Ukraine “On Elections of the People’s Deputies of Ukraine”.

2. Persons culpable of election law violations should be prosecuted.  

3. Prior to presidential elections of 2015 the codification of the election legislation should be carried out; the possible revision of election system for parliamentary elections taking into account the Council of Europe and Venetian Commission recommendations should be considered.  

 

4. The Supreme Rada of Ukraine:

 

Should introduce the following changes related to territorial division into the Law of UkraineOn Elections of the Peoples Deputies of Ukraineand other relevant laws determining the order for the elections of the peoples deputies of Ukraine:   

-     -enforce the principles of the integrity of boundaries between electoral districts (with  possible exceptions due to the peculiarities of administrative and territorial structure of Ukraine), taking into consideration the actual administrative and territorial structure as well as the areas of compact settlements of national minorities; 

- establish the electoral districts’ boundaries by law for at least ten years’ term, with mandatory consultations with parties, experts, national minorities representatives and other potential stakeholders; 

- reduce the minimally  required number of voters at the precincts to ensure due order of voting and count of votes;

With respect to the setting up and operation of the election commissions:

-     -make strict differentiation between the parties-subjects of the election process, stipulating that if the party candidates are registered in the single-mandate electoral districts, the party can nominate the candidates only to the election commissions of the aforementioned electoral districts, while the right to be represented in the DEC rests only with the parties that nominated the candidates in the nationwide electoral districts;  

-     -define the general draw principles, envisaging separate draws for each DEC and PEC;

-     -consider the possibility for the candidates in the single-mandate electoral districts to nominate candidates to DEC;

-     -provide for compulsory training on election legislation for all the DEC and PEC members, with due order established for this training;

-     -consider the possible reduction of PEC membership if the minimum number of voters at the precincts is reduced;

                    

With respect to the voters’ registration, compiling and adjusting the voters’ lists:

-     -ensure mechanisms that would allow the voters free change of voting venues without changing their voting addresses within the national electoral district and introduce the efficient  public control mechanisms to monitor the changes of voting venues without changing their voting addresses, similar to control instruments used to monitor voting envisaging the use of  “leave to vote in other venue”.

-     -establish the terms for the resolution of disputes, related to amendments of voters’ lists, allowing to avoid introduction of any changes on the day of elections ( with the exception of technical errors or typos); 

With respect to election campaign regulation:

-     -harmonize the rules of the parties’ funding with the rules of election campaigns’ funding, taking into account the recommendations of Venetian commission, OSCE/BDIHR, the Committee of Ministers of the Council of Europe, Group of states against corruption in order to bring  these rules into compliance with the international standards;

-     -implement more efficient mechanisms of preventing public servants’ involvement in election campaigns and bribing of voters, by establishing effective and commensurate sanctions for the violations;  

With respect to organizing the voting, count of ballots and establishing the elections’ results:

-     -consider the possibility of simplifying the procedures of preparations to voting, voting itself, and count of ballots at the polling stations while retaining the mechanisms aimed at preventing potential abuses and falsifications; 

-     -provide for the printing of ballots in the languages of national minorities in the areas of their compact settlements;

-     provide for repeat voting in the districts were the voting was recognized invalid;

With respect to the status of official observers and authorized persons:  

-     -provide the opportunity for public observers to monitor the election process all over Ukraine, and not only within specific single-mandate electoral district, and also for their registration at the early stages of the process;  

With respect to appeals against the actions or inaction at the time of elections and liability for the violation of election law:

-     -consider the possibility of prolonging the term for the grievances consideration by election commissions up to 3-5 days;

-     -consider the possibility of narrowing the election commissions’ competences in considering election disputes,  and, for a long-term prospective(under existing mechanism for commissions’ formation) – referring the election disputes to the courts’ competences;

-     -provide for appellate review of all the courts’ rulings on election disputes, including the rulings of the Highest Administrative Court of Ukraine;

-     -establish effective and commensurate sanctions for the violations of all the restrictions and bans stipulated by the law, by means of introducing respective changes to the Code of Ukraine on Administrative Infringements and the Criminal Code of Ukraine.     

5. The President of Ukraine and the Cabinet of Ministers of Ukraine should:

-        -consider the possibility of implementing the measures, within their terms of authority, aimed at holding the executive power officials responsible for the violations of the election law, including participation in election campaigns; 

-        -consider the possibility of implementing the measures, aimed at further reforming of the election law, taking into account the lessons of the 2012 election campaign and ensuring its proper codification, e.g. by setting up a new working group for reforming the election law;

-        -consider the possibility of adopting an act (acts), defining the standards for the government and executive power officials’ operation in preparation to the elections.

 

6. The Prosecutors General Office and the Ministry of Interior of Ukraine should:

-        -consider the possibility of implementing the measures within their terms of reference, aimed at holding all the persons culpable of violating the election law, legally liable;

-        -make public the information on the outcomes of courts’ hearings on administrative and criminal violations;

-        -implement the measures, aimed at enhancing the level of competence, knowledge and skills of the prosecutors and the Ministry of Interior officials on the issues of election law, protection of election rights, response to violations etc.  

7. Central Election Commission should:

-        -consider the possibility of compiling, publishing and discussing the report on CEC operation in preparation to the elections of the people’s deputies of Ukraine, the uncovered problems and ways of their resolution;   

-        -consider the possibility  of developing recommendations for the further improvement of the Ukrainian election law, taking into account the results of the recent elections, including proposals on establishing the electoral districts’ boundaries, training for commissions’ members etc.  

-        -consider the possibility  of setting up a center or a sub-division under the CEC Secretariat, which would operate on the permanent basis and be in charge of the  training for commissions’ members;

-        -consider the possibility of early publication of draft CEC election acts on its web-site for general public information, and also of consultations preceding the adoption of these acts.

 

[1] Report prepared by D.Beliy, Kherson branch of the Ukrainian Voters’ Committee (UVC).

[2] S.Kononchuk “People’s rule on order”  http://electioninfo.org.ua/index.php?i=1275

[3] See http:// zakon2.rada.gov.ua

[4] Report prepared on the basis of materials of the Final report on the results of observation over the elections of people’s deputies of Ukraine conducted by the UVC NGO, Election Observation Mission Final Report1 OSCE/BDIHR, “Opora” NGO reports; see:    http://www.osce.org, www.enemo.eu, www.cvu.org.ua та www.opora.org.ua . Information provided by the members of UHUHR.

[5] Statement of “Opora” NGO on elections of people’s deputies of Ukraine on October 28, 2012 http://oporaua.org/news/3372-zajava-gromadjanskoji-merezhi-opora-shchodo-provedennja-vyboriv-narodnyh-deputativ-ukrajiny-28-zhovtnja-2012-roku

[6] 40days left before elections: fair competition or fighting without rules? http://maidanua.org/2012/09/40-dniv-do-vyboriv-chesni-zmahannya-chy-boji-bez-pravyl/ see also Systematic violations of the Election Law. 2 days before the elections http://maidanua.org/2012/10/systematychni-porushennya-zakonu-pro-vybory-2-dni-do-holosuvannya/

[7]Final report of the UVC on the results of observation over the elections of people’s deputies of Ukraine in 2012  http://electioninfo.org.ua/index.php?i=1315

[8] See preliminary results and conclusions of OSCE/BDIHR, OSCE PA, PACE, EP and NATO PA of October 29, 2012 and interim report for the period after November 9, 2012.

[9] See Code of good practice in Electoral Matters (Guidelines and explanatory report, adopted by the Venetian commission at 52nd session (Venice, October 18-19,  2002 ) – Ukr. Edition, p. 9

[10] See p. 3.3.of the Code of good practice in Electoral Matters

[11] OSCE/BDIHR Election Observation Mission Final Report1 Warsaw, 3 January 2013 - P.1

[12] See P. 2.2. of the Code of good practice in Electoral Matters

[13] See article “Analysis: Kherson oblast’ redistricted for the benefit of the Party of Regions” http://politics.kherson.ua/

[14] See article “Ivan Vynnyk: I feel betrayed by the Ukrainian state” http://politics.kherson.ua/

[15] Joint statement on preliminary results of of OSCE/BDIHR, OSCE PA, PACE, EP and NATO PA of October 29, 2012

[16] See “Political geography of “doubles”– August 24,2012 – “Opora” site http://oporaua.org/news/2104-politychna-geografija-qdvijnykivq

[17] The following parties acquired representation in the DEC:

Christian-democratic party of Ukraine ( nominated only 3 candidates in single-mandate districts; on draw results gained representation in 219 DEC);

“Iedyna rodyna” ( nominated only 1 candidate in single-mandate districts; on draw results gained representation in 212 DEC);

“Iedyny tsentr” ( nominated  9 candidates in single-mandate districts; on draw results gained representation in 43 DEC);

 “Ukrainian Anarchists’Union”); ( nominated 2 candidates in single-mandate districts; on draw results gained representation in 220 DEC);

“Rus iedyna” and “Bratstvo” ( nominated respectively  3 and 1 candidates in single-mandate districts; gained representation in 225 DEC each);

People’s environmental party ( nominated only 1 candidate in single-mandate district; gained representation in 32 DEC);

“Ruska iednist’”( nominated 5 candidates in single-mandate districts; o gained representation in 221 DEC);

“Molod’ do vlady” ( nominated 1 candidate in single-mandate district; gained representation in  all 225 DEC).

[18] See, in particular the CEC resolutions №№ 645, 693, 709, 737, 766, 780, 794, 817, 831, 844,

856, 876, 890, 918, 936, 949, 970, 991, 1002, 1029, 1043, 1073, 1098, 1119, 1120, 1121, 1144,

1166, 1185, 1205, 1224, 1253, 1280, 1301, 1322, 1344, 1369, 1394, 1461, 1550, 1649, 1685,

1714, 1754, 1786, 1826, 1853, 1874, 1892

[19] See “Opora” report № 6 http://oporaua.org/

[20] See “Opora” statement of October 30, 2012 http://oporaua.org/

[21] “See a violation – tell about it!” Interactive Internet hub of documentary information, made through crowd-sourcing  Інтерактивний інтернет-хаб документальної інформації, створеної шляхом краудсорсінгу, про факти порушень на виборах народних депутатів України 2012. ВГО "Альянс Майдан"

[22] http://maidanua.org/

[23] Обов’язкова умова, як говорять організатори, всі порушення підтверджуються фото, відео чи офіційними документами.

[24] Дивися: http://maidan.org.ua/vybory2012

[25] 40 days before elections: fair competition or fight without rules?  http://maidanua.org/ see also Systematic violations of the Election law: 2 days before elections http://maidanua.org/2012/10/systematychni-porushennya-zakonu-pro-vybory-2-dni-do-holosuvannya/

[26] http://oporaua.org/news/2710-shostyj-zvit-za-rezultatamy-zagalnonacionalnogo-sposterezhennja-parlamentski-vybory-2012-veresen

[27] See IMI final reports http://imi.org.ua/

[28]See “Opora” final report on October 28, 2012 election results http://oporaua.org

[29] See “Opora” statement of October 30, 2012. http://oporaua.org/

[30] O.Ayvazovska. How the elections were forged  http://oporaua.org/articles/3589-jak-gartuvalysja-vybory

[31] See http://electioninfo.org.ua/?i=1265

[32] Based on UVC final report

 

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