On March, 31, 2021, after the two-day break and rotation of some heads and members of DEC No 87, the process of establishing voting results at elections of people’s deputies of Ukraine resumed. DEC operations included multiple breaks, some unlawful commission decisions, conflicts between the commission and a candidate Oleksandr Shevchenko, and the interference of people’s deputies into the lawful course of DEC meeting.
With regard for conflicting nature of operations of DEC No 87, OPORA urges all electoral actors to provide for due conditions for the commission’s unbiased work and avoid any pressure on its members. At the same time, the Verkhovna Rada of Ukraine, shall foresee (within the improvements to the electoral law) certain restrictions for attendance of people’s deputies of Ukraine at meetings of election commissions. Deputies’ presence at the meetings of election commissions, as we can see from previous experience of the recent and previous campaigns, eventually undermines the election process engaging people’s deputies from different deputy factions and groups.
Furthermore, the organization calls upon the law-enforcement authorities to check the claims of people’s deputies of Ukraine about the presence of armed individuals at the DEC meeting, and to inform the public on the findings.
Following the observation at the meeting of DEC No 87, OPORA hereby strongly urges the people’s deputies of Ukraine to avoid any interference into the work of election commissions. According to the law, people’s deputies of Ukraine are not found among persons allowed to stay at the polling station during the vote, or at the election commission meetings during the vote count and during the establishment of voting results. In OPORA’s view, the DEC did not have any grounds to allow the people’s deputies of Ukraine from the “Servant of the People” faction to participate in their meeting on March, 31, 2021. Admitting unauthorized persons upon the commission’s decision can be acceptable at the regular meetings, rather than during the ongoing meeting on the establishment of voting results (part four of Article 34 of the Law on election of people’s deputies).
Activities of people’s deputies of Ukraine at the DEC meeting were often destructive, which manifested in the conflict-mongering between them and one of the candidates, and had certain elements of public pressure on the commission members. In case an electoral actor breaks the legal procedures of the meeting, any measures to stop their illegal acts shall be administered by the DEC, rather than the people’s deputies. On the other hand, people’s deputies of Ukraine committed acts not provided by the law as to a candidate for people’s deputies of Ukraine.
In case of critical issues in operations of DECs or PECs, the only empowered authority to control the abidance by and equal application of the Law on election of people’s deputies is the Central Election Commission.
Despite the collision between the law on elections and the status of people’s deputies, the election process is based on the principle of equal opportunities for candidates and shall be regulated by the provisions of the Law on election of people’s deputies as a special law. The fact of five peoples’ deputies attending the DEC meeting who supported one candidate goes against the legally enshrined parity in representing different electoral actors at the meeting. Furthermore, their actions during the meeting created the conditions of unlawful pressure on the operations of the election commission.
OPORA hereby highlights the importance of strong respect for the rights of official observers and other electoral actors to attend the DEC meeting. On March, 31, 2021, when approving the decision to deprive a group of individuals of the right to attend the meeting, the DEC stated the decision referred to all and every electoral actor. At the same time, the text of the resolution No 31 of April, 1, 2021, adopted at 2:10 a.m., says that it shall only apply to the party of a candidate Oleksandr Shevchenko (the candidate personally, his proxies, and party representatives in the DEC). However, when OPORA’s official observer left the venue hosting the meeting and tried to get back the restriction was attempted at him. It may qualify as an attempt to obstruct the rights of an official observer. By April, 01, OPORA official observers’ right to attend the meetings has been ensured. However, when making the decisions, the DEC shall strictly follow all legal requirements to remove all electoral actors from their meetings.
In order to provide for due observation over the course of DEC meeting and for the competitiveness of the process, OPORA urges the CEC to analyze the justification of their decision depriving a candidate Oleksandr Shevchenko, his proxies, and observers of the right to attend the meeting. Deprivation of the right to attend shall be applied under the grounded resolution in case of any obstruction to the operations of election commission, and may apply to a certain individual rather than the entire group of people representing a candidate. The candidate is obliged to stay away from hamstringing DEC members but he may exercise his right of judicial appeal against the DEC decision depriving him of the right to attend the continuing commission meeting.
According to OPORA, at their meeting on March, 31, 2021, the DEC failed to follow the procedures when considering election documentation from certain polling stations. Besides, the DEC failed to follow the procedures under the law on elections of people’s deputies to consider claims and complaints on violations during the election process.
Thus, the decision on the re-count at PEC No 261029 is questionable as there is no mention of the stated grounds for the re-count (lacking stamp imprint on the package with a vote count protocol) among the list stipulated in parts 10-11 of Article 94 of the Law of Ukraine “On Elections of People’s Deputies of Ukraine.” They do not directly imply the breach of procedure for transporting or unsealing the documentation packages.
Part 11 of Article 94 of the Law of Ukraine “On Elections of People’s Deputies of Ukraine” stipulates that the signs of unsealing the packages with the sealed documents of the precinct election commission is a certain ground for the re-count of votes. At the same time, part 10 of Article 94 of the Law sets the grounds when the DEC may take a decision to conduct a re-count (such as claims or complaints with attached duly furnished acts questioning the vote count results at the polling station; acts or written claims, complaints on the violations of the legal requirements to the transportation of vote count protocols to the district election commission). Therefore, the lacking PEC stamp on the package with electoral documentation may not be treated as a good and sufficient reason for the re-count. It is only in case the DEC receives the claims, complaints, and acts proving the violation of the law and questioning the voting results, or the breach of the Law during the transportation, the issue shall be brought forward for commission’s consideration and the decisions shall be approved by a vote.
Inter alia, certain procedural breaches accompanied the decision on acceptance of electoral documentation of PEC No 260498. At the first attempt, the votes were lacking to make the decision on the PEC, and DEC postponed the decision for later. The commission considered the issue of accepting electoral documentation for the following PEC in the order of sequence. Thereupon, they resumed the consideration of documentation from the PEC with no decision, which goes in breach of procedures to accept and consider documents from precinct election commissions. It is the breach of acceptance procedure for protocols and electoral documentation. In fact, under part 5 of Article 93 of the Law, the procedure shall be executed stepwise: receipt of protocols from certain PEC shall conclude in DEC’s adoption of one of the following three decisions: 1) to receive the election documents and take into account the data from the vote count protocols at the polling station; 2) to reject the receipt of election documents and oblige the PEC to correct the identified shortcomings by means of drafting a protocol(s) marked “Adjusted"; 3) to run the re-count at the polling station. The DEC may take no other decision on postponing the issue. The DEC shall make the respective decision on the PEC protocols and documents, and the DEC shall have no powers to shift to the stage of receiving protocols from another PEC.
OPORA urges members of DEC No 87 to consistently follow the law and provide for the completion of the process to establish voting results at the interim elections of people’s deputies of Ukraine.