Ukraine, Early Parliamentary Elections, 21 July 2019: ODIHR Election Observation Mission Final Report

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Following an invitation from the government of Ukraine, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) established an Election Observation Mission (EOM) on 11 June to observe the 21 July 2019 early parliamentary elections. The ODIHR EOM assessed compliance of the election process with OSCE commitments, other obligations and standards for democratic elections, and domestic legislation. On election day, an International Election Observation Mission (IEOM) was formed as a common endeavour of the ODIHR EOM and delegations of the OSCE Parliamentary Assembly, the European Parliament (EP) and the NATO Parliamentary Assembly (NATO PA).

The Statement of Preliminary Findings and Conclusions issued by the IEOM on 22 July concluded that “in the 21 July early parliamentary elections in Ukraine fundamental rights and freedoms were overall respected and the campaign was competitive, despite numerous malpractices, particularly in the majoritarian races. Generally, the electoral administration was competent and effective despite the short time available to prepare the elections, which were seen as an opportunity to consolidate reforms and changes in politics that Ukrainian voters are hoping for. In sharp contrast, the campaign was marked by wide-spread vote-buying, misuse of incumbency, and the practice of exploiting all possible legislative loopholes, skewing equality of opportunity for contestants. Intertwined business and political interests dictate media coverage of elections and allow for the misuse of political finance, including at the local level. Election day was overall peaceful, with observers of the IEOM assessing opening and voting positively in the overwhelming majority of polling stations observed, but procedural shortcomings were noted in the counting and tabulation”.

The elections took place in the context of an ongoing armed conflict and other hostilities in the east of the country and the illegal annexation of the Crimean peninsula by the Russian Federation. As a consequence, elections could not be organized in Crimea and certain parts of Donetsk and Luhansk oblasts that are controlled by illegal armed groups.

The Constitution guarantees rights and freedoms that underpin democratic elections. The legal framework remains largely unchanged since the last parliamentary elections, with the exception of the 2015 campaign finance reform. Although overly detailed and convoluted, it provides a sound basis for the conduct of democratic elections, if implemented in good faith. Some restrictions on the freedom of association and on candidacy rights remain despite prior ODIHR recommendations. A number of other ODIHR recommendations remain unaddressed, including on voter registration, composition of election commissions and simplification of dispute resolution process.

Parliament is elected for a five-year term. Half of the members are elected on the basis of a proportional system with closed party lists in one single nationwide constituency. Parties must receive at least five per cent of all votes cast in order to participate in the distribution of mandates. The other half of the members are elected in single mandate districts (SMDs) in a single round. The majoritarian component was systematically criticized by many IEOM interlocutors as subject to corruption and fraud by powerful local interests.

Despite a narrow timeframe, the Central Election Commission (CEC) administered the early elections in a technically efficient manner, approved the main procedural rules within the legal deadlines and overcame challenges created by the procurement rules and deadlines. While its sessions were open, the long-standing practice of holding preparatory meetings prior to sessions and the resulting lack of substantive discussions in the sessions themselves decreased the transparency of the CEC’s work.

District Election Commissions (DECs) and Precinct Election Commissions (PECs) were formed on time and performed in an overall professional manner. A significant number of members, including in executive positions, were replaced as late as election day by parties who had nominated them. Large scale replacements undermined the stability and efficiency of the work of lower level commissions and diminished the value of the trainings they received. Several “technical” contestants were registered in order to provide their positions in election commissions to other contenders. This practice does not ensure a balanced composition and proportional representation of contestants envisaged by the law and international good practice.

The State Voter Register includes some 35.6 million voters. Despite the exclusion of approximately one million voters without a registered address, the vast majority of interlocutors expressed confidence in the accuracy of the voter register. In a welcome development, the previously simplified procedure for internally displaced persons (IDPs) to change their voting address, has now been extended to all voters. Outreach and voter education activities to explain this change were limited; only some 47,000 IDPs changed their address. The blanket denial of voting rights of persons recognized by a court to lack legal capacity on the grounds of mental disability is at odds with international obligations.

Overall, candidate registration resulted in a diverse field of candidates with the registration of 22 political parties for the nationwide race, and over 3,000 candidates for the SMDs. However, disproportionate limitations on the right to stand based on a non-expunged criminal record for an intentional crime, regardless of its severity, residency requirements, and restrictive interpretation of candidate registration rules negatively impacted the inclusiveness of the process.

Thirteen out of 22 party lists complied with the 30 per cent requirement for either gender on candidate lists, and there is no enforcement mechanism. Of the total number of registered candidates, 23 per cent were female. While women representation in the nationwide constituency lists was at 31 per cent, only 16 per cent of SMD candidates were women. During the campaign, women candidates were less visible in the media than men. Women were wellrepresented at all levels of election administration. The majority of the CEC members were women, including the Chair and Secretary. In the new parliament, women hold 20 per cent of seats, a significant increase compared to the previously held 12 per cent.

Overall, contestants were able to freely convey their messages to voters and fundamental freedoms of expression and assembly were respected. The campaign was competitive with a range of candidates representing a wide spectrum of political options. The misappropriation of the brand name of a party that eventually won by several self-nominated candidates characterized these elections, and some 46 investigations were opened into “clone” candidates.
Vote-buying was widespread as evidenced by more than 300 criminal investigations. Misuse of incumbency impeded equality of opportunity for contestants.

Campaign finance amendments adopted in 2015 partly addressed some prior ODIHR and Council of Europe’s Group of States against Corruption (GRECO) recommendations to increase transparency and accountability. However, the implementation of the regulatory framework does not ensure transparency of campaign finances and continues to allow for influence of patronage networks and big donors on politics, and undue influence of campaign spending on the will of voters. Existing sanctions are neither proportionate nor dissuasive. As required by law all parties opened dedicated bank accounts while some 25 per cent of majoritarian candidates failed to do so.

The Constitution guarantees freedom of expression and prohibits censorship, and the legal framework provides for general media freedom. The overall media market is diverse, but largely divided along political lines, and ownership is highly concentrated. The editorial policy and political agenda promoted by private media outlets exclusively serve the interests of their owners, which undermines media autonomy and public trust. Journalists’ safety remains a major concern. The public broadcaster UA:PBC is severely underfunded, which affects its ability to fully perform its public-service role required by the law. The media regulatory body chose not to exercise its powers to effectively respond to media violations.

ODIHR media monitoring results showed that provisions for balanced and unbiased coverage of the campaign and candidates were frequently violated by the monitored private television (TV) channels. Broadcasters widely covered the contestants through the format of political debates.
Paid advertisement was used extensively by the main parties. A high number of unmarked promotional materials were noted in prime-time news of most monitored private TV channels, a practice that violates the law, misleads voters and does not provide genuine information. In line with the law, UA:PBC provided all 22 parties with free airtime.

The Constitution provides for full political, civil and social rights for national minorities.
However, the legal framework pertaining to national minorities is fragmented and outdated.
Several interlocutors expressed concern that the SMD delimitation is not favourable to national minority representation. Candidates were able to use minority languages in campaign materials and while campaigning.

The right to seek effective legal remedy is guaranteed by law and provides for timely consideration. However, jurisdictions of election commissions and administrative courts overlap. An inconsistent and overly formalistic approach to addressing complaints did not ensure effective remedy. The CEC received some 370 complaints, three quarters of which were deemed inadmissible on technical grounds, contrary to good practice. Only one third of the complaints were reviewed in open sessions and the rest behind closed doors, which undermined transparency. The police registered some 13,000 possible election-related offences and initiated over 500 criminal investigations.

The law provides for election observation by international and citizen observers. Following the reinstatement of voting rights of the Russian delegation to the Parliamentary Assembly of the Council of Europe, the Ukrainian authorities withdrew their invitation to the Assembly to observe the elections. The CEC registered 163 Ukrainian non-governmental organizations (NGOs) to observe the elections, most of them only recently created.

Election day was overall peaceful, with a voter turnout of 49.84 per cent announced by the CEC.
IEOM observers assessed opening and voting positively in the overwhelming majority of polling stations observed. Voting was transparent and well organized with a high level of adherence to established procedures. There were cases of voters not allowed to vote because they were not on the voter list. The vote count was transparent; however, basic reconciliation procedures were often not followed and in over one third of observations steps prescribed for completing the protocol were not adhered to. Tabulation was negatively assessed in a quarter of DECs observed, mainly due to tensions in or around the DECs and inadequate conditions at DECs that caused overcrowding and limited transparency, as well as restrictions on observers’ access in eight DECs. Copies of protocols were not systematically provided to those entitled to them.
Throughout election day, candidate and party observers were present in the vast majority of polling stations while citizen observers were noted in approximately one third.

This report offers a number of recommendations to support efforts to bring elections in Ukraine fully in line with OSCE commitments and other international obligations and standards for democratic elections. Priority recommendations relate to adopting a unified electoral code, ensuring equality of the vote by requiring a regular review of electoral districts, enhancing transparency of campaign financing, revising the method of formation of election commissions, guaranteeing freedom of association, facilitating equal campaign opportunities, undertaking measures to safeguard the public broadcasters independence, adopting measures to prevent misleading voters, and effective investigations of electoral offences. ODIHR stands ready to assist the authorities to further improve the electoral process and to address the recommendations contained in this and previous reports.