General review of the situation
Improvement of the election legislation remains topical for the political agenda. Amendments to the election legislation are integral part of preparations to signing the EU-Ukraine Association Agreement. The context of foreign policy creates favorable conditions for a wide discussion on amendments to the electoral legislation. In February, the Cabinet of Ministers of Ukraine has approved the Action Plan for Ukraine's integration with the EU for 2013, which involves development and realization of amendments to electoral legislation. The government has publicly committed itself to take into consideration the recommendations of OSCE/ODIHR Mission, attract experts of the Council of Europe, OSCE and the EU. The Verkhovna Rada of Ukraine has approved the Statement on the realization of European aspirations of Ukrainian people and signing Association Agreement between Ukraine and the European Union. The Parliament has pledged to approach adoption of electoral laws more actively. At the same time, excessive politicization of re-election in five single-member districts, where the Central Election Commission didn't manage to determine voting results of 2013 Parliamentary elections, complicates the discussion. Parliamentary factions have so far failed to agree on the date of re-election. Such situation endangers the process of improving the election process.
Within implementation of the Action Plan for Ukraine's integration with the EU in 2013, the Ministry of Justice of Ukraine has developed a draft Law of Ukraine on Making Amendments to Some Laws of Ukraine on Improvement of Electoral Legislation. On April 11, 2013 this draft Law was published on the site of the Ministry. However, on May 21, the Ministry of Justice has published supplementary propositions to the bill concerning optimization of financing the election campaign.
The draft Law secures widening the powers of district election commissions, restricting the membership of "technical" political parties in election commissions, elaboration of detailed requirements for the electoral district formation, setting maximum size of electoral funds for political parties and candidates.
The draft Law on Making Amendments to Some Laws of Ukraine on Improvement of Electoral Legislation secures widening the powers of district election commissions, restricting the membership of "technical" political parties in election commissions, elaboration of detailed requirements for the electoral district formation, setting maximum size of electoral funds for political parties and candidates. Besides that, the bill imposes restrictions on the election campaigning, strengthens the rights of foreign observers etc. It also includes a solution for Ukrainian citizens which live or stay on the territory of a foreign state during the Election Day, willing to participate in the Parliamentary elections.
The draft law provides a complex solution for key problems in the election process organization. This feature of the draft bill, developed by the Ministry of Justice of Ukraine, allows lawmakers, experts, and the public to conduct a wide discussion on directions for amending legislation. At the same time, it doesn't solve problems of the election system. According to the 2013 Annual Message of the President of Ukraine to the Verkhovna Rada of Ukraine, the discussion on optimal type of the election system for parliamentary elections may become topical in the future.
Regulations of the bill, which concern restrictions for the membership of "technical" political parties in DECs and PECs, as well as improvement of drawing lots procedure, may be fully supported. Amendments concerning district formation procedures, restrictions on the election campaigning, regulations on mass media coverage, giving foreign observers and observers from international organizations the right to obtain copies of vote counting protocols etc, worth positive assessment. A proposition on setting maximum size of electoral funds for political parties and candidates may be adopted with reserve. Amendments on giving DECs the right to register candidates in single-member districts cannot be supported. An initiative concerning limitation of the right of citizens which live or stay in foreign countries to vote only in nationwide election district is quite doubtful. This issue should be thoroughly considered in order to avoid undue restrictions of constitutional rights of citizens. Draft Law doesn't solve the problem of voter bribery, widely reported in 2012.
OPORA is convinced that amendments of the Law of Ukraine On Elections of People's Deputies of Ukraine should be adopted simultaneously with a number of other important legislative acts in this sphere. In particular, these are regulations on territorial organization of elections and trainings for members of election commissions. It is also necessary to bring Regulations of the electoral legislation in correspondence with the Criminal Code, the Code of Administrative Offenses, and other laws.
Some detailed OPORA's conclusions concerning the draft Law of Ukraine on Making Amendments to Some Laws of Ukraine on Improvement of Electoral Legislation:
The draft law provides restrictions for the membership of "technical" political parties in DECs and PECs, what will positively influence the course of future election campaigns. Intentions concerning drawing lots among candidates from subjects of nomination in every DEC separately will definitely bring positive changes. The same procedure should be applied when forming PECs, although it is absent in the proposed draft law.
Powers of the CEC pertaining to registration of candidates for MPs of Ukraine in nationwide and single-members districts should be fully preserved. Transferring powers on registration of candidates in single-mandate election district to the DEC may contribute to securing the electoral process from excessive centralization and diversification of political influence. At the same time, the experience of 2012 Parliamentary elections proved that DECs are not ready to perform such duty. In fact, the very actions of DECs, members of which participated in falsifications or manipulations with electoral documentation, were the reason why determination of voting results in 5 problematic districts was impossible. Prior to redistribution of powers in the system of election commissions, it's necessary to secure lawful activities of the DECs, qualitative training for members, and prevent any possible pressure upon them.
Improvement of the district formation process should fall within a special law on territorial organization of elections. A separate law will allow regulating the widest possible aspects of the process, providing practical mechanisms for consideration of interests of territorial communities and national minorities, participation of citizens etc. The given amendments to the Law of Ukraine on Elections of People's Deputies of Ukraine are definitely positive, but their realization requires additional regulation.
Prohibition on election campaigning during public events, organized by government bodies, will help to prevent abuse of administrative resources. A regulation that limits election campaigning in commercial and social advertising is also quite felicitous. At the same time, legislative solution for administrative resource abuses requires bringing the regulations of the electoral legislation in correspondence with the Criminal Code, Code of Administrative Offenses, legislation on preventing and combating corruption, public service, etc. It's worth to consider reinstatement of mandatory leave for candidates, as long as it's absence partly justifies abuse of administrative resource in a viewpoint of the voters. It's necessary to establish efficient legislative prohibitions on the use of budget programs for the benefit of an electoral campaign, and to restrict participation of candidates in official events organized by authorities.
With attraction of domestic and international experts, state authorities should continue discussing the ways to securing electoral rights of citizens living or staying abroad. Amendments which provide that these voters will able to vote only in nationwide election district are discriminatory.
Setting maximum size of electoral funds for political parties and candidates is reasonable only providing the legislation on financing of political parties (their current activities and election campaigns) will also undergo systematic reforms. Without effective control over funding sources and the use of finance by parties or candidates, this regulation will remain declaratory and selective. At the same time, the proposition of the Ministry of Justice of Ukraine concerning submission of interim reports by managers of electoral funds should be supported.
The draft law gives observers from foreign states and international organizations the right to receive a copy of protocols on vote count and election results, as well as the other documents. These amendments solve problems in activities of international observers in Ukraine that are present for many years.
The draft law provided detailed regulations for mass media concerning media coverage of the elections, which will secure equal opportunities for parties and candidates. For the first time, it is legislatively secured that the National Council of Ukraine on Television and Radio Broadcasting may use materials of civic organizations when implementing controlling functions. Still, criteria for the selection of organizations, which will provide monitoring observations or summaries, as well as the methodology for preparing researches, professionalism and reputation of such organizations, will determine whether changes will positively influence the election process, or will be used to pursue mass media.
The Ministry of Justice of Ukraine has partly taken in consideration recommendations of the OSCE/ODIHR Mission concerning avoiding making amendments in the late dates. The bill also provides that resolutions of the CEC should be passes before the election process. At the same time, this regulation requires inclusion of an exact prohibition on making amendments during the determined period before the voting day, or terms for the use of procedure itself.
The document drafted by the Ministry of Justice of Ukraine somehow broadens possibilities for appealing violations of electoral legislation. In particular, it allows appealing decisions and actions of DECs and their members to the CEC. These propositions may be supported, as long as they are securing additional possibilities for filing appeals.
Project of the Ministry of Justice of Ukraine contains a quite well-thought approach to regulation of using regional languages and languages of national minorities in election campaigning. It provides that all printed campaign materials on regional language or language of national minority should contain translation to the state language.
Review of key innovations in the bill drafted by the Ministry of Justice of Ukraine:
Widening the powers of district election commissions.
The draft law has considerably enhanced the role of district election commissions in organization and conduct of Parliamentary elections. It's connected to giving DECs the right to register candidates in single-member districts, what results in further redistribution of functions in the system of election commissions.
It is expected that the DEC will be lodged with the following powers:
- Registering and canceling candidates' registration in single-mandate election districts, issuing certificates according to standards of the CEC;
- Registering proxies of MP candidates in single-mandate districts;
- Publishing information about opened electoral fund accounts of candidates in single-members districts, including their details, in regional and local mass media;
- Controlling over the receipt, accounting, and use of the resources of the electoral funds of MP candidates in single-member districts;
- Adjudication of grievances against actions or inaction of MP candidates, registered in single-member districts;
- Issuing warnings to candidates in single-mandate election district;
- Approving the text of ballot papers in single-mandate election district, taking decisions on making changes to the corresponding ballot.
Comment
The final report of the OSCE/ODIHR Election Observation Mission for 2012 contains a recommendation on possible transference of powers on organization of election in single-member districts to the DECs, including registration of candidates and their proxies. If implemented, this recommendation will secure the CEC with powerful regulatory functions including cancellation of groundless decisions passed by DECs. It is also mentioned that since DECs will become responsible for organization of elections in single-member districts, conditions of their creation and/or term of office should also be reconsidered.
Amendments, proposed by the Ministry of Justice, reconstitute regulations of the Law of Ukraine On Elections of People's Deputies of Ukraine as of 1993, 1997, and 2001, according to which DECs were responsible for registration of candidates in single-mandate election districts[1].
OPORA's standpoint:
Amendments that transfer powers on registration of candidates and proxies in single-mandate election district to the DEC, as well as other powers, cannot be supported. They are untimely and may have risky consequences.
According to the observation, conducted by the OPORA in 2012, the CEC had effectively performed candidate registration in single-member districts[2]. With rare exceptions, receipt of documents from parties and candidates, as well as the other registration procedures, were conflict-free. If the CEC will preserve these powers, negative drawbacks may be eliminated through additional specifications to the candidate registration procedure. In particular, specification to the mandatory requirement of living in Ukraine for the past 5 years, and regulation of the verification procedure.
During 2012 Parliamentary elections, we could vividly see examples of excessive politicization, and even criminalization of the certain DECs, what destabilized the election process. At the same time, Parliamentary elections in 1998-2002 didn't prove the expediency of using the DECs for registering candidates in single-member districts. For example, the final report of the OSCE/ODIHR for 2002, contain examples of deliberate non-execution of judgments which concern MP candidates by the DECs[3]. If transferred to the effective Law of Ukraine On Elections of People's Deputies of Ukraine, these risks may bring unanticipated results. This fact also applies to giving DECs the right for adjudication of grievances against actions or inaction of MP candidates, issuing warnings to candidates, and controlling the use of the resources of the electoral funds. These procedures may become instruments of an acute political struggle and various abuses by members of DECs.
Prior to redistribution of powers in the system of election commissions, it's necessary to legislatively secure the independence of district election commissions, as well as qualitative training for their members. Strengthening monitoring functions of the CEC remains equally important.
Prevention of abuses by "technical" parties when forming district and precinct election commissions.
Draft law is aimed to limit participation of so-called technical parties in formation of district and precinct election commissions, as well as to secure equal opportunities for all subjects of the election process.
Proposed amendments
The bill drafted by the Ministry of Justice of Ukraine provides making the following amendments:
- Excluding subjects of nomination for the membership of DECs and PECs, representing parties which don't have any candidates registered in nationwide district, from the nomination list;
- Establishing a legislative requirement concerning organization of drawing lots for every DEC separately;
- Terminating the powers of members of DECs and PECs in case of canceling the registration of candidates in nationwide and single-member districts, by the quota of which they were appointed.
Amendments also provide that only the following subjects may be nominated for members of DECs: 1) political party, whose deputy faction is registered in the Apparatus of the Verkhovna Rada of Ukraine of the current convocation; 2) political parties, which has registered MP candidates in nationwide district. These very subjects and majoritarian candidates will participate in the formation of PECs. The CEC will organize separate drawing lots for every DEC, but there is no similar requirement for the formation of PECs in the draft Law.
Comment
In result of liberalized nomination procedure for the DEC membership in 2012, quotas were unfairly distributed between subjects of the election process. On one hand, parties which have registered only 1 candidate in single-mandate majoritarian election district received 225 places after the sortition. On the other hand, some subjects of the election process (AUU Svoboda, UDAR) which overcame the election threshold of 5% according to the voting results didn't have any official representative in DECs. Besides that, the procedure of drawing lots was conducted once for all 225 districts, what deprived real parties of the possibility to fully participate in the formation of DECs[4]. Similar situation we could observe when PECs were formed. According to the observation results of the OSCE/ODIHR Election Observation Mission during 2012 elections, Ukraine was recommended to take measures against violations committed by so-called "technical" parties.
OPORA's standpoint
These amendments to the draft Law may be fully supported. They are aimed at prevention of abuses by "technical" parties and securing equal opportunities for all subjects of the election process. Requirement concerning organization of drawing lots for every DEC separately is definitely a positive innovation. This requirement should also be transferred to the procedures that regulate formation of PECs.
Specification of legislative requirements for the creation of electoral districts.
It was also proposed to specify regulations of the draft Law which concern redistricting.
Proposed amendments
- Single-mandate election districts cannot be created of non-adjacent territories;
- District boundaries are determined with consideration of interests of the territorial community and compactness of national minorities' location;
- The CEC is endowed with the right to reconsider boundaries and centers of regular districts (not later than 175 days before the election day).
On 2012 Parliamentary elections, the creation of 225 regular single-mandate election district was quite contradictory. The effective wording of the Law of Ukraine On Elections of People's Deputies of Ukraine provided that electoral districts are created within AR Crimea, oblasts, Kyiv, and Sevastopol with approximately equal number of voters. The average number of voters in single-member districts was determined by the CEC on the basis of State Register of Voters. The standard deviation of the number of voters couldn't be more that 12% of this average number. The other generally recognized principles of redistricting, in particular – the principle of territorial continuity, consideration of the boundaries of raions and cities of oblast significance, protecting interests of minority settlements – were not secured in the effective law. As a result, the CEC has ignored the boundaries of the certain territorial units during the creation of electoral districts. The absence of comprehensive requirements resulted in manipulations with district boundaries[5].
OPORA's standpoint
Propositions of the Ministry of Justice of Ukraine concerning extension of legislative requirements to the formation of constituencies, changing their boundaries and centers are reasonable. Besides that, since the CEC can change boundaries and centers of districts, the public will be able to demand elimination of previously made defects. The prohibition on including non-adjacent territories to the same district will decrease risks of political manipulations with district boundaries. A regulation on consideration of interests of the territorial communities and national minorities is also a positive change. At the same time, issues pertaining to districts could have been solved more precisely in a separate Law on the Territorial Organization of the Elections.
Expanding restrictions on the election campaigning.
Draft Law provides specifications and restrictions on the election campaigning. The amendments are in correspondence with recommendations of the OSCE/ODIHR Mission regarding abuse of administrative resources.
Amendments to the Article 74 of the Law of Ukraine on Elections of People's Deputies of Ukraine provide:
- Establishing prohibition on election campaigning, spreading campaigning materials, calling to vote "for" or "against" the certain candidates or parties during events, which are organized by state authorities and local self-government, communal enterprises establishments, organizations etc.;
- Establishing prohibition on using surnames or pictures of candidates, as well as names or symbols of parties-subjects of the election process in commercial and social advertising; on notifications about the support provided by the candidate for performances or any other public events, drawing attention to the participation of candidates in these events.
Comment
According to opinion of OPORA observers, systematic abuseof administrative resources became the most dangerous trend during 2012 Parliamentary election in Ukraine. OPORA observers noticed mass examples of public servants illegally participating in the campaign: publicly showing support to candidates during official events, using budget resources and state institutions in the interests of the certain parties, making biased political statements about competitors. In fact, officials showed irresponsible attitude towards separation of administrative and party activities. The majority of violations, noticed by observers, committed officials of oblast and raion state administrations; inconsiderably less number – MPs and officials in local self-government bodies[6].
OPORA's standpoint
The amendments concerning restrictions on the election campaigning are generally positive. Specification of such restrictions partly solves the problem of abuse of administrative resources, which became widely spread in 2012. In particular, the prohibition on showing support to parties - subjects of the election process or candidates during official public events is quite reasonable, as long as officials of all levels actively abused such possibility before. Another prohibition, which concerns using surnames or pictures of candidates in commercial and social advertising; on notifications about the support provided by the candidate for performances etc., is also justified. This regulation will prevent candidates from using non-political events for the benefit of election campaigning. At the same time, amendments to legislation don't resolve the problem of using official events for direct or indirect campaigning by effective officials. OPORA is proposing to reinstate mandatory leave for candidates. The absence or such requirement gives voters the reason to justify candidates-officials which participate in public events of governmental bodies.
Determining peculiarities of voting at overseas polling stations and temporarily changing the voting location to another single-mandate election district (without changing the voting address).
Proposed amendments:
The draft Law determines peculiarities of voting on Parliamentary elections in Ukraine for:
- citizens which reside or stray on the territory of a foreign state during the Voting Day;
- citizens which had temporarily changed the voting location to another single-mandate election district (without changing the voting address)
The draft Law provides that such voters will have the right to vote only in the nationwide district. It is proposed to indicate voter lists of the corresponding polling stations that such voters should be given only one ballot to vote in nationwide district.
Comment
The problem of voting on overseas polling stations or in conditions of temporary change of voting location was sharply taken during 2012 Parliamentary elections.
In April 2012, the Constitutional Court of Ukraine has ruled regulations of the Law of Ukraine On Elections of People's Deputies of Ukraine on the equal inclusion of overseas polling stations to all single-mandate election districts in Kyiv city as unconstitutional[7]. According to the decision, citizens which lived or stayed in foreign countries had the right to vote only by the proportional component of the electoral system on October 28, 2012[8]. At the same time, overseas polling stations were included to the certain districts in Kyiv city during Parliamentary elections in 1998-2002, according to the decision of the CEC[9][10].
In September 2012, in response to notifications about manipulations with the procedure for temporary change of voting location organized by some candidates, the Central Election Commission had reconsidered it. New redaction of the Procedure allowed to temporarily change the voting location, but only within the single-mandate election district, to which a citizen is included in State Register of Voters. Therefore, citizens which were staying outside their election districts during the Election Day, were deprived of the possibility to vote at all.
OPORA's standpoint
Limitation of the rights of the certain citizen groups to vote only by one component of the electoral system is an extremely controversial decision. There are no limitations to the right to vote for citizens based on the place of residence or stay in the Constitution of Ukraine. Instead, according to the international standards, the state should maximally attract citizens which live or temporarily stay abroad to the election process. In particular, according to the Resolution 1459 (2005) on the abolition of restrictions on the right to vote, Council of Europe Member States shall secure the right of their citizens, which live abroad, to vote in national elections[11]. Taking into consideration these circumstances, state authorities should continue discussing with the experts the ways to secure electoral rights of citizens living or staying abroad. Similarly, there also should be a discussion to secure the rights of citizens which had temporarily changed the voting location to another single-mandate election district.
Setting maximum size of electoral funds for for political parties and candidates
Proposed amendments:
The draft Law of Ukraine On Elections of People's Deputies of Ukraine provides setting maximum size of electoral funds for political parties and candidates in single-member districts. In case amendments are adopted, electoral funds for political parties, which candidates are registered in nationwide district, will be under 100 million UAH. The maximum size of electoral funds for candidates, registered in single-mandate election districts, will be 4 million 500 thousand UAH.
Comment
The effective Law of Ukraine on Elections of People's Deputies of Ukraine don't contain any restrictions concerning the size of electoral funds for political parties and candidates. At the same time, the final report of the OSCE/ODIHR Election Observation Mission for 2012 contains a recommendation on possible introduction of justified restrictions for campaigning expenses.
Ukraine have already had an experience of limiting the size of electoral funds for political parties and candidates. In the electoral Law for 2001, the maximum size of electoral fund of a party or block could not exceed one hundred fifty thousands of untaxed minimums of a person’s income (2.55 million UAH), and the fund of a candidate in single-members district - ten thousand untaxed minimums of a person’s income (170 thousand UAH). Application of this norm was quite disputed, as long as political parties - subjects of the election process didn't manage to stay within such tight limits for expenses[12].
OPORA's standpoint
Establishment of limits for electoral funds of political parties and candidates corresponds to international standards. Taking into consideration that leading political forces are closely connected with powerful economic groups, a moderate limitation to the size of electoral funds may positively influence availability of equal opportunities in the election process. However, these changes should come along with introduction of an efficient system of control over election funds, as well as an independent monitoring in this sphere and sanctions for the use of shadow and abuse of budget resources.
According to the Code of good practice in electoral matters, the average expenses of parties on campaigning may be limited in some cases, to secure the correspondence with the principle of equal opportunities[13]. The limit for electoral fund of political parties, proposed by the Ministry of Justice of Ukraine, seems to be quite justified (100 million UAH). According to the information provided by the CEC, three parties of five which have overcame the electoral threshold in 2012, have spent less than 100 million UAH from their electoral funds (AUU Svoboda, UDAR, and CPU); one party – a little less than 100 million UAH (AUU Batkivshchyna); and one party had spent more than 200 million UAH (the Party of Regions). Such a considerable difference in the size of expenses among winners of the 2012 Parliamentary race means that a moderate limitation to the size of electoral funds is justified. It may diminish the role of money in the election process and assist to the principle of equal opportunities for political parties. At the same time, the proposition of the Ministry of Justice concerning maximum size of electoral funds for candidates in single-member districts in amount of 4.5 million UAH needs further study. For example, the number of voters in a district may be considered when determining maximum size of electoral funds. According to the draft Law proposed by the Ministry of Justice, political parties will spend approximately 2,7 UAH per person in nationwide district. Instead, a candidate in single-member district may spend 27 UAH per a voter. Such correlation of expenses in nationwide and single-member districts is barely acceptable. We should also mention that the draft Law of the Ministry of Justice provides submission of interim reports on income to and the use of funds from the election fund. For example, managers of accumulative electoral fund accounts will have to file interim reports in 20 days before the Voting Day and publish them on the site of the CEC.
The bill widens opportunities for appealing against decisions, actions or inaction pertaining to the election process. In particular, the bill allows appealing decisions and actions of DECs and to the CEC The effective Law of Ukraine On Elections of People's Deputies of Ukraine allows appealing against inaction of DECs to the CEC. From the viewpoint of appealing possibilities, this regulation is justified. In connection to re-distribution of powers in the system of election commissions, the DECs are empowered to consider appeals against actions or inaction of candidates in single-mandate districts.
The draft Law contains regulations, which provide that normative acts of the CEC should be adopted and promulgated before the election process. These amendments take into consideration some recommendations of the OSCE/ODIHR Mission regarding timely publishing of the CEC Resolutions containing instructions or explanations to the electoral legislation. It was also mentioned, that the CEC should not amend procedures in the last minute in order to secure the transparency and accountability. The proposition of the Ministry of Justice requires additional regulation, including a ban on amending electoral procedures form the determined period to the election day.
The Ministry of Justice of Ukraine has also proposed a number of other amendments to the electoral legislation. In particular, there are specifications to regulations on mass media activities. Regulations on the media coverage of the elections will include: prohibition on concealing socially important information and misinterpretation of information about electoral events, obligation to receive the information from two or more sources. The bill establishes specific requirements for the creation and broadcasting of programs with parties or candidates participating. The National Council of Ukraine on Television and Radio Broadcasting may use materials provided by NGOs when controlling observance of electoral requirements to coverage. OPORA is convinced that proposed amendments are justified providing that organizations, which monitoring results will be considered, are professional, and adequate moderate measures will be taken in case of violations committed by the media. However, the grounds for any of such measures should not be political.
The draft law gives observers from foreign states and international organizations the right to receive copy of a protocol on results of vote count and election results, as well as the other documents. This innovation solves the problem of restricted access to electoral information for international observers, which existed for years. At the same time, the bill consists of a vague amendment to an article of the Law concerning the right of official observers from parties, MP candidates, and NGOs. The Article 78 (9.1) of the effective Law provides that official observer has the right to "attend in polling stations during the voting, and observe activities of commission members from any distance, including during issuance of ballots to the voters and vote count, but not making physical hindrances to members of the commission." The Ministry of Justice proposed to delete a phrase "from any distance" from this sentence.OPORA is convinced that such changes may negatively affect the practical realization of legal rights by official observers.
The Ministry of Justice of Ukraine proposed to regulate the use of national language, regional languages or languages of national minorities used on placards and campaigning materials. Packards of parties or candidates, which are produced at the expense of the State Budget of Ukraine, may contain a translation to regional languages or languages of national minorities next to the text on national language. Simultaneously, all printed campaign materials on regional language or language of national minority should contain translation to the state language. Such approach seems to be quite justifies, taking into consideration the necessity of developing national and other languages.