Ukraine, Presidential Election, 31 March and 21 April 2019: ODIHR Election Observation Mission Final Report

I. EXECUTIVE SUMMARY

Following an invitation from the government of Ukraine, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) deployed an Election Observation Mission (EOM) to observe the 31 March and 21 April 2019 presidential election. The ODIHR EOM assessed compliance of the election process with OSCE commitments, other international obligations and standards for democratic elections, and domestic legislation. On election days, an International Election Observation Mission (IEOM) was formed as a common endeavour of the ODIHR EOM and delegations of the OSCE Parliamentary Assembly, the Parliamentary Assembly of the Council of Europe (PACE), the European Parliament (EP) and, for the first round, the NATO Parliamentary Assembly (NATO PA).

The Statement of Preliminary Findings and Conclusions issued by the IEOM on 1 April concluded that the election “was competitive, voters had a broad choice and turned out in high numbers. In the pre-electoral period the law was often not implemented in good faith by many stakeholders, which negatively impacted the trust in the election administration, enforcement of campaign finance rules, and the effectiveness of election dispute resolution. Fundamental freedoms were generally respected. Candidates could campaign freely; yet, numerous and credible indications of misuse of state resources and vote-buying undermined the credibility of the process.” The Statement of Preliminary Findings and Conclusions issued on 22 April concluded that the election “was competitive and held with respect for fundamental freedoms. The orderly transfer of power should offer the opportunity for strengthening democratic institutions and their accountability, although the campaign for both rounds lacked genuine discussion of issues of public concern. The media landscape and campaign coverage reflected the dominance of economic interests in public and political life. The runoff was well-organized, despite operational challenges and a limited timeframe.”

The overall context in which the election took place was characterized by ongoing armed conflict and other hostilities in the east of the country and the illegal annexation of the Crimean peninsula by the Russian Federation, resulting in the continued control of certain parts of Donetsk and Luhansk oblasts (regions) by illegal armed groups. As in 2014 and 2015, the election could not be held in these territories.

The Constitution guarantees rights and freedoms that underpin democratic elections. The legal framework for presidential elections generally offers a sound basis for the holding of democratic elections, despite significant shortcomings and various gaps and inconsistencies. It was not fully implemented in good faith by all stakeholders. The Central Election Commission (CEC) did not exercise in a fully effective manner its authority to supplement the election legislation through regulations. The legal framework remains largely unchanged since the last presidential election, despite protracted attempts at electoral reform, and most previous ODIHR recommendations, including for the adoption of a unified election code, remained unaddressed. Positively, the right of individuals to lodge constitutional complaints, introduced in 2016, allowed citizens and political parties for the first time to challenge election-related legislation. However, the Constitutional Court’s handling of such cases has denied timely and effective remedy in key constitutional challenges.

The election was administered by the CEC, 199 District Election Commissions (DECs) and some 30,000 Precinct Election Commissions (PECs). Political actors and civil-society representatives criticized the hasty adoption of amendments to the Law on the Central Election Commission in September 2018, that increased the number of CEC members from 15 to 17, claiming they were intended to benefit the incumbent. This led to many ODIHR EOM interlocutors voicing a lack of trust in the CEC and questioning its impartiality. The CEC met all legal deadlines and, despite the limited time before the second round, carried out all preparatory tasks efficiently, demonstrating strong institutional capacity. While the CEC operated collegially overall and held regular open sessions, the practice of systematically holding preliminary meetings without the presence of observers left CEC sessions without substantial discussions and significantly decreased the transparency of the CEC’s work.

DECs and PECs were formed based on nominations by registered candidates, separately for each round. The proportionate allocation of executive positions on the DECs amongst the candidates’ nominees, as required by law, was not fully ensured by the CEC. Candidates could replace members nominated by them and did so at will. Some 39 per cent of DEC members were replaced before the first round, and 8 per cent before the second round. These incessant replacements, especially of members in executive positions, affected the stability and efficiency of the work of DECs and diminished the value of the training received. The formation of PECs proved particularly problematic and raised concerns about the legitimacy of this process. Nonetheless, the election administration made commendable efforts to carry out all the preparatory works and organize the election. Women were well represented at all levels of the election administration.

The centralized State Voter Register (SVR) includes some 35.6 million voters. Despite some concerns about difficulties to adequately capture data on internally displaced persons (IDPs), internal labour migrants, and citizens living abroad, nearly all ODIHR EOM interlocutors expressed confidence in the accuracy of the voter lists. The voter lists extracted from the SVR excluded over 5 million voters registered in areas where voting could not take place and voters without a registered address. Voters could request to temporarily change their polling station without changing their voting address. They had to submit a new request for the second round, even if they had already done so for the first round, which was an unnecessary burden. The procedure for a temporary transfer of the voting place is the only means for IDPs to be included on the voter lists. It was particularly cumbersome for voters residing in territories outside government control, who needed to repeatedly cross checkpoints to register and to vote. Voters were given the opportunity to check their voter list entries and to request inclusion or corrections. Citizens who have been declared legally incapacitated by a court decision are deprived of the right to vote, which is inconsistent with international obligations and standards.

In a largely inclusive process, the CEC considered applications from 91 prospective candidates and registered 44 of them, including four women. About half of the 39 candidates who eventually ran were self-nominated, including the incumbent. The CEC rejected 47 applicants, most based on multiple grounds, the most common being non-compliance with the monetary deposit, which at 2.5 million hryvnia (UAH; around EUR 79,000) is substantial and as such represents a restriction on candidacy. Campaign platforms must be vetted by the CEC for compliance with certain criteria established by the election law including a prohibition on positions that challenge the territorial integrity of the state or that are inconsistent with human rights and freedoms, which unnecessarily constrains candidates’ freedom of opinion and expression, as well as political pluralism. Six applicants were rejected on grounds related to their campaign platforms. A total of 21 nominees challenged the CEC decisions denying them registration; all court cases were denied admissibility or dismissed. The ten-year residency requirement is unduly restrictive and runs counter to international obligations and good practice.

The election campaign for both rounds was generally peaceful and competitive, and candidates could campaign freely and without undue restrictions. The field of candidates offered voters a choice, but there was lack of genuine political debate among the contestants. Several candidates actively campaigned before the first round, but most of the 39 candidates did not conduct any campaign activities, casting doubts on their intentions to genuinely compete. President Petro Poroshenko toured the country extensively in his official capacity. This blurred the line between his official position and his standing as a candidate, challenging paragraph 5.4 of the 1990 OSCE Copenhagen Document. Volodymyr Zelenskyy did not conduct a single traditional campaign rally, relying instead on his appearances as an actor and comedian. In the second-round campaign, the two candidates chose to not conduct large-scale campaign rallies, relying instead on television, online media and social networks. The increase in negative campaigning in the second-round period, to the detriment of the presentation of structured election programmes or an issue-oriented debate, diminished voters’ ability to make an informed choice. The format of the much-anticipated public debate that took place on 19 April at the Kyiv Olympic Stadium offered only a limited opportunity for voters to acquaint themselves with the candidates’ programmes. Social network users engaged in extensive negative campaigning against both candidates between the two rounds.

The use of social assistance programmes, salary increases and bonuses, and other financial incentives as campaign tools was the subject of widespread criticism levelled against the incumbent.

The ODIHR EOM observed and was informed of misuse of state resources, at national and local levels, by several candidates. A systematic practice of involving public institutions and public servants in the campaign, mostly by the incumbent, was observed by and reported to the ODIHR EOM during the first-round campaign. The ODIHR EOM also observed some indications of votebuying and received a high number of credible allegations from across the country. More than 100 criminal investigations into alleged vote-buying were opened, including into nationwide votebuying schemes by the campaigns of the incumbent and Yulia Tymoshenko. The politicization of law enforcement authorities, particularly the Prosecutor General and the Ministry of Internal Affairs, impacted the electoral process and undermined the public’s trust in their impartiality.
New campaign finance regulations were adopted in 2015, in line with past ODIHR recommendations to increase transparency and accountability. While the new framework is an important step forward, remaining shortcomings significantly limit its effectiveness to regulate the role of money in campaigns. Insufficient independence, powers and resources of the oversight bodies to adequately monitor compliance and enforce the new regulations, as well as inadequate sanctions, are a serious concern. There are some limits on campaign funding but none on spending, despite public calls and draft laws for banning or limiting spending for broadcast and outdoor advertising. Numerous claims that campaigns were partly funded from sources other than the campaign accounts, contrary to the law, have credibility and are reflected by ODIHR EOM observations. In the run-off, both candidates benefitted from financial support that circumvented the campaign finance framework. While interim and final campaign finance reports must be filed, and all candidates did so within the legal deadlines, their analysis by oversight bodies was merely technical. The reports revealed various irregularities, including many unauthorized donations.
Overall, excessive funds were spent on the campaign, particularly on media advertising.

The constitution guarantees freedom of expression and prohibits censorship, and the legal framework provides for general media freedom. Yet, to counter threats to national security, the government introduced several restrictive measures affecting media and journalists. The 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 is severely underfunded, which affects its ability to fully perform its public-service role. The legislation does not give the media regulatory body sufficient sanctioning powers to perform its mandate in an efficient and timely manner during an election period, and specific mechanisms for dealing with media-related complaints were not exercised.

ODIHR EOM media monitoring showed that legal provisions for balanced and unbiased coverage of candidates were frequently violated by the monitored private TV channels, which followed their owners’ political agenda and favoured certain candidates. Some journalists and hosts showed a clear bias towards certain candidates. In both rounds, the campaign coverage lacked in-depth analysis.

The incumbent received wide coverage in the news, with no clear distinction between his institutional activities and political campaigning. Mr. Zelenskyy was barely covered in his political capacity but was extensively featured as a performer. Paid advertisement was widely used by the main candidates. As required by law, the public broadcaster provided all candidates with free airtime. During both rounds, a high number of unmarked promotional materials was noted in the prime-time news of most monitored private TV channels. During the second-round campaign period, the monitored media extensively covered a series of increasingly provocative video challenges between Mr. Poroshenko and Mr. Zelenskyy on a possible debate. Notably, Mr.
Zelenskyy to a large extent chose to avoid appearing in person and live on TV channels, including in the official debate organized by the public broadcaster.

The right to seek effective legal remedy for violations of electoral rights is guaranteed by law, but legal restrictions and practices significantly limited access to electoral justice contrary to OSCE commitments. The framework for complaints and appeals is highly convoluted and establishes overlapping jurisdictions of election commissions and courts, which is not in line with international good practice. Very few cases filed with the courts were successful. The courts applied an overly formalistic approach, ruling many cases inadmissible, some judgements lacked a sound legal basis or did not provide coherent reasoning, and some decisions conflicted or were inconsistent with each other. Contrary to the law, the CEC, as a general practice, responded to complaints by private letter prepared by a single CEC member, rather than by determination in open plenary sessions followed by published decisions. This undermined the transparency and collegiality of the established dispute resolution process and the right to appeal. Moreover, the CEC refused to consider the vast majority of complaints on the merits, denying effective remedy. The police made efforts to provide a level of transparency in its handling of election-related complaints. However, the current legal framework for electoral offences and sanctions and its enforcement during this election leave significant room for improvement.

The law provides for election observation by international and citizen observers. The CEC registered 139 non-governmental organizations (NGOs), most without prior observation experience.

The ODIHR EOM noted that only few NGOs were active in the observation. Most ODIHR EOM interlocutors expressed concerns about the affiliation of some NGOs with certain candidates, and some NGOs openly supported one candidate or another. In light of parliament’s designation of the Russian Federation as an aggressor state, a recent amendment to the election laws effectively prohibited citizens of the Russian Federation from observing elections in Ukraine. This is at odds with paragraph 8 of the 1990 OSCE Copenhagen Document.

Both election days were peaceful, with a voter turnout of 63.5 in the first round, and 62.1 per cent in the second. In both rounds, IEOM observers assessed opening and voting positively in the overwhelming majority of polling stations observed. Voting was well-organized, smooth, transparent and efficient, and procedures were mostly adhered to. However, IEOM observers noted problems with the secrecy of the vote, in particular during the first-round election day. Police opened cases on voters photographing or showing ballots and on suspected vote-buying. Counting was assessed positively during both election days, with IEOM observers noting few procedural errors. Specifically, observers reported on both election days that basic reconciliation procedures and the sequence of steps to be performed during the count were often not followed. During the first round, tabulation was assessed negatively in about one sixth of DECs observed, mainly due to inadequate conditions that caused overcrowding and limited transparency, as well as restrictions on observers’ access. During the second-round election day, by contrast, tabulation was assessed positively in all but two DECs observed; with few exceptions, DECs followed procedures, and handover and tabulation were transparent, prompt and orderly. During the first-round election day, candidate and party observers were seen in almost all polling stations, and citizen observers in around one half. On the second-round election day, there were significantly fewer candidate and citizen observers. Several citizens were brought to liability for breach of the campaign silence on both election days.

This report offers a number of recommendations to support efforts to bring elections in Ukraine closer in line with OSCE commitments and other international obligations and standards for democratic elections. Priority recommendations relate to the adoption of a unified election code, revising the method of formation of election commissions, changes to voter registration facilitating voters’ ability to temporarily change their voting place, campaign rules which would safeguard a clear separation between stakeholders’ official rights and responsibilities and their functions as a candidate, strengthened campaign finance rules with dissuasive and proportionate sanctions, safeguarding the public broadcaster’s editorial independence and financial autonomy and sustainability, and revising the system for the adjudication of election disputes and review the manner in which complaints are handled in practice. ODIHR stands ready to assist the authorities to further improve the electoral process and to address the recommendations contained in this and previous reports.