Summary

On the eve of the official launch of the Presidential election campaign in Ukraine in December 2019, the Civil Network OPORA  presents its preliminary analysis of Ukraine's compliance with the recommendations from national and international observation organizations, international non-governmental and intergovernmental organizations, the diplomatic representatives of the partner countries of Ukraine on elections. With the approach of elections crucial for the democratic development of the country, it is important to conduct the audit of the status of meeting the observers' recommendations. Despite the politically motivated prolongation of the full-fledged election reform in Ukraine, the state still has a chance to improve law and practices before 2019 presidential elections.

This report was drafted by OPORA experts and means to inform the Ukrainian state and its international partners on the status of recommendations in the field of elections. According to the survey findings, OPORA identified the government's failed recommendations that are crucial for ensuring the quality of the election process in Ukraine. The priorities could be a basis for the operational dialogue between state institutions, the public, and the international partners of Ukraine on the improvement of election procedures and raising the general quality of the election process in the country.

Major research findings

Civil Network OPORA analyzed 165 recommendations from national and international institutions grouped into 17 election reform priorities. The findings revealed systemic issues in the implementation of proposals for the improvement of the election process by public authorities. Out of the 17 priority recommendations, full implementation is only available for legislative action on unresisted registration and operations of official observers from national, civic, and international organizations. Other 16 priority recommendations developed on the basis of the full list of proposals for observation missions are either completely unfulfilled or partially fulfilled.

The survey shows there are the necessary political resources and legal mechanisms to conduct a full-fledged election reform. However, a key obstacle is still in the unsatisfactory intensity of the parliamentary dialogue and the low political responsibility of the competent authorities. The unfulfilled recommendations regrettably include a number of problems for providing sensitive groups of voters or categories of citizens who require due procedures relevant to their present condition. Voting rights for internally displaced persons and labor migrants, people with varying abilities, or ethnic minorities have not yet received any guarantees for their respect or improved access to voting. No less serious are the challenges for voting rights of the residents of the temporary occupied areas, who require additional information due to Russian aggression. Currently, the Central Election Committee does not show any proactive position in the issues of developing and implementing special awareness or education programs for this and other category of people.

Election administration bodies have not demonstrated any significant progress in enhancing the professional competence of their members, whereas in the legislation, no sustainable mechanisms for training and certification of knowledge of the members of election commissions were introduced. The longstanding problem with the rotation of the members of the Central Election Commission was added to the traditional problems in the work of election commissions. Since the onset of the next presidential election in Ukraine, delaying the replacement of members of the Central Election Commission is directly threatening the stability and legitimacy of the organization and carrying out the vote. The recommendation for conducting the CEC internal reform has not lost its relevance. According to the results of the survey, there were also no normative and practical steps to improve the process of counting and establishing the results of voting.

The fact that the draft Election Code was adopted in the first reading and the new legislation on the funding of political parties was enforced deserves positive evaluation.  In 2018, the Government of Ukraine also registered in the parliament a draft law of Ukraine on increasing the responsibility for violating electoral legislation. However, the progress in reviewing draft legislative changes is not an indicator of a completed reform. As part of the implementation of the legislation on the funding of political parties, there remain negative manifestations of enforcement. These circumstances require additional measures and operational efforts by the Ukrainian authorities.

National and international institutions have proposed that state authorities increase the transparency of the functioning of the State Register of Voters and the process of forming voting rolls. Practical proposals have not been implemented, although the ever-increasing mobility of Ukrainian citizens and the phenomenon of mass internal displacement require additional measures to verify voting rolls.  The transparency of election data, in turn, also relates to the transparency of the administration of elections.

The progress can be considered to be the abolition of the decision of the Constitutional Court of Ukraine of the provisions of the Law of Ukraine "On Elections of People's Deputies of Ukraine" regarding the possibility of the party's withdrawal of a candidate on the electoral roll after the election results are established.  In the context of this decision, it is necessary to urge the Ukrainian parliament to refrain from adopting additions or revisions of existing ones that go against democratic standards.

Before the next national elections, the parliament of Ukraine has extremely little time for the effective implementation of the recommendations. In order to avoid destabilization of the upcoming electoral process, it is advisable to focus on improvement of electoral procedures, empowering the combat against any violations of electoral legislation and the strengthening of instruments for control over funding the election, increasing the professionalism of election administration.

OPORA calls on the Verkhovna Rada of Ukraine to professionally complete the process of reviewing the Draft Election Code and decide on its adoption. This should be the result of political and state responsibility for the pre-announced commitments to fully and timely conduct electoral reform.

Ukraine's Implementation Status of Priority Recommendations in the Electoral Process

 

Survey Methodology: A Brief Description

The analysis conducted by OPORA covers recommendations on the electoral process in Ukraine, which were proposed by the national and international observation missions, organizations, and diplomatic representatives in 2014-2018.  The analyzed recommendations relate to the extraordinary elections of the President of Ukraine and the Verkhovna Rada of Ukraine in 2014, the next local elections in 2015, the first local elections of 2016-2018. The subject of the analysis also includes the resolutions and statements of the international intergovernmental organizations on elections in Ukraine, which were adopted in 2014-2018.

The Survey included three stages. During the first stage, OPORA formed a single list of all recommendations in the field of elections that were provided to Ukraine during 2014-2018. Each recommendation was suggested with indicators of their performance, the type of elections, with the bodies responsible for their implementation identified, the presence or absence of a clear term of implementation of recommendations set. At this stage of the survey, OPORA studied all recommendations without exception from a complete list of international and national organizations. These recommendations were as detailed as possible, given their repetition and partial duplication in the reports of observing organizations.

Tentative matrix of generalization of all recommendations on the election process, provided to Ukraine by international organizations and national observing organizations

In the first stage, it was used a generalization matrix to analyze the 165 recommendations expressed in the reports from international and national observation missions, in bilateral documents and resolutions of international organizations. To these recommendations, indicators of performance were proposed. The list of recommendations included suggestions mentioned in the Final reports of the Election Observation Mission of the OSCE/ODIHR, in Concluding reports of Observation Missions of CANEOM, ENEMO EOM, in the statements of NDI delegations, in Final reports of the Civil Network OPORA on the results of the observation of the elections, which took place during the 2014-2018, recommendations of IFES. The list of recommendations also incorporated the provisions of the action plan for Ukraine 2018-2021 of the Council of Europe, action plan for Ukraine 2015-2017 of the Council of Europe, the Annual national cooperation programs Ukraine-NATO 2013-2018, resolutions of the Parliamentary Assembly of the Council of Europe, provisions of the G7 Ambassadors' Statement, conclusions of the Venice Commission, and some other international scale documents addressed to Ukraine.

The formation of a single, detailed list of recommendations with appropriate implementation parameters enabled the authors of the survey to formulate a letter of priority proposals for improving the electoral process in Ukraine. A list of complex priorities of the Ukrainian electoral reform is the result of the consolidation of theme-based directions of detailed recommendations reflected in the reports, resolutions and other documents of national and international organizations. Determining the complexity of the electoral reform priorities based on a variety of recommendations, commitments and proposals is the second stage of the survey.

According to the methodology proposed by OPORA, the following recommendations belong to the priority recommendations (see. the table "Priority recommendations provided to Ukraine by national and international organizations"):

Using the list of detailed recommendations and indicators of their implementation, OPORA evaluated Ukraine's progress with 17 priorities for the electoral reform. An analysis of the implementation of the entire list of recommendations, grouped into broad priorities, is the third stage of the survey.

State of implementation of recommendations by priorities of electoral reform

Fully implemented recommendations

Of the 17 priorities of the electoral reform, formed on the basis of detailed recommendations, only one is fully implemented. The recommendation refers to the establishment of conditions for unrestricted registration of official observers from civic associations, foreign states, and international organizations at the respective elections. Relevance of the recommendations has been assessed by OPORA as low. During the elections in Ukraine, there were no significant problems at the stage of registration of official observers from national and international organizations.

The changes made to the Law of Ukraine "On the Election of the President of Ukraine" in 2014 were consolidated by the recommendations of the OSCE / ODIHR Missions. In particular, the legislation eliminated the requirement to obtain additional approval from the CEC for observers from a group of observers from foreign states or international organizations. International observers were given the right to receive copies of protocols on par with national observers. OPORA notes that is highly unlikely for the recommendation to become relevant again in the event of consistent and steady compliance with the current legislation.

Partly implemented recommendations

Of the 17 priority recommendations, 5 proposals to improve the electoral process issued to Ukraine by national and international institutions could be considered as partly implemented.

According to the analysis of the process of implementation of recommendations by the State, OPORA states a partial progress in carrying out a comprehensive electoral reform through the unification of legislation, increasing the transparency of the financing of political campaigns and election campaigns, enhancing the professional competence of members of election commissions and the improvement of the activities of political parties. (items of the Table Priority recommendations provided to Ukraine by national and international organizations»» № 1-4, 16).

Partly fulfilled recommendations include the activities of the media in the election process due to an internal dialogue in the media on strengthening the professional standards of journalistic activity in the election process. The survey results indicate that the efforts of state authorities and leading political forces to complete the above recommendations are incomplete. As a rule, it is a question of the formal progress in the consideration of legislative changes registered in the parliament, of selective implementation of legal or practical measures, and of formal involvement of non-governmental institutions in the implementation of recommendations. Partially implemented recommendations for improving the electoral process, unfortunately, are still not completed or lasting.

Comprehensive electoral reform and the choice of an optimal electoral system

Subject matter of the recommendation: A comprehensive reform of the electoral system (a process must be transparent, inclusive based on political consensus) through the adoption of the unified election code in advance of the next elections.

This recommendation applies to national and local elections and may be implemented through the adoption of a unified election code. A special feature of the implementation of this recommendation is its reflection not only in documents and international institutions, but also in the Agreement on the formation of a coalition of parliamentary factions of Ukraine "European Ukraine" in the Parliament of the current convocation.  The Parliamentary Agreement, which has a politically binding character, envisages the improvement of the electoral system at local elections in 2015, at other elections the term of implementation is 2019.

OPORA experts termed the relevance of implementing the recommendations for the electoral process in Ukraine as high. In addition to the unification of electoral legislation and the selection of optimal electoral systems, the socio-political context of the implementation of these recommendations is also important.  A comprehensive reform of the electoral legislation is an integral part of the package of reforms that was formed after the Revolution of Dignity on the basis of social demands, of the consensus of political elites and international recommendations.  Waiver of a long-term political commitment not only limits the prospects of complex challenges in the electoral process, but will also undermine trust in the predictability and efficiency of political institutions.

The recommendation was partially implemented by adopting the law "On Local Elections in Ukraine" in 2015. However, during its development, the principle of inclusiveness, publicity and openness of the lawmaking process, as well as violations of terms imposed by international electoral standards, was not fully complied with. The content of the adopted law (in terms of the type of electoral system) did not meet the declared intentions and public expectations. Instead, the Draft Election Code (No. 3112-1) was voted in the Verkhovna Rada of Ukraine in the first reading at the end of 2017, and the process of its preparation for the second reading is still slowly continuing.

OPORA experts note the slow pace and unsatisfactory format of work on the finalization of the draft Election Code voted by the Verkhovna Rada in the first reading.  The parliament does not have an open public dialogue on this topic, and the level of interest of the main political players in the draft Code is extremely low. Under these unfavorable conditions, political forces must make extraordinary efforts to reach a broad consensus and prepare a quality document.

OPORA evaluated the impact of incomplete implementation of recommendations on the course of next presidential election in Ukraine as average. The key issues with the improvement of electoral legislation relate more to parliamentary than to presidential elections. At the same time, the lack of systemic changes in the regulation of election campaigning and the administration of the elections will also negatively affect the course of the presidential campaign.

Political funding

Subject matter of the recommendation: Introducing greater transparency in financing of political parties and election campaigns, revision of the law on financing election campaigns and expenditures therefor. Strengthening the responsibility of political parties for their failure to meet the requirements for openness and transparency in financing their activities.

The recommendation applies to all types of elections and practices of political parties in between the elections. Moreover, it is included into the agreement on the formation of a coalition of parliamentary factions "European Ukraine" in Verkhovna Rada of Ukraine of the current convocation. In line with parliamentary commitments, steps to improve the transparency of funding the parties and election campaigns were to be implemented in the second quarter of 2015.

The relevance of implementing the recommendations is high, since non-transparent financing of political parties and their dependence on the oligarchs (big business) lead to political corruption and counteract the positive effects from any other changes of the election law.

According to the conclusions of the GRECO monitoring groups, that have been following the progress in Ukraine since 2011, recommendations on transparent financing of political parties were fulfilled only in part. The state established a new legislative framework to regulate this issue by introducing a system of direct state funding of political parties. In particular, in October 2015, the Verkhovna Rada of Ukraine adopted the Law "On Amendments to Certain Legislative Acts of Ukraine on the Prevention and Combating of Political Corruption". Moreover, the Law of Ukraine "On Amendments to Article 87 of the Budget Code of Ukraine (Concerning the Financing of Political Parties)" was adopted. State funding of statutory activities of political parties, in accordance with the amendments to the Law of Ukraine "On Political Parties in Ukraine", started since the third quarter of 2016. It also introduced a requirement for regular reporting and mandatory audit of party accounts under the supervision and control of the National Agency for Prevention of Corruption.

For full implementation of recommendations regarding the transparent funding of political parties, Ukraine must ensure harmonization of electoral legislation and the legislation on financing of political parties. An important task is to provide for effective legal enforcement of the new law by detalizing the procedures for financing, spending, reporting and control over their compliance.

The implemented recommendations would reinforce the function of both public and civic control over financing of the Presidential election campaign, and would make the procedures more public.

Key recommendations have already been implemented at the legislative level, but the practice of their application needs to be improved. The parties demonstrate institutional weakness and slow adaptation to new requirements, both for approaches to spending public funds and for reporting on expenditures. The state institutions responsible for coordinating the state financing of political parties do not fully exercise their powers due to the lack of regulation of certain procedures and lack of expertise.  Nevertheless, despite the problems in law enforcement, the opportunity to improve the practice before the onset of the next presidential election in Ukraine is realistic.

Increasing the professionalism of the electoral administration

Subject matter of the recommendation: enhancing professional competence of election commissions members (particularly, in terms of using ІТ technologies). Consideration should be given to revising the order of appointment of DEC members to better ensure the professionalism and consistency of their work.

The recommendation is highly relevant for the electoral process and concerns the course of national and local elections in Ukraine. Problems of knowledge and competences are exacerbated by the practice of mass replacements of members of lower and middle levels of election commissions immediately before the day of voting or an important stage of the election process. The current system of formation and rotation of members of the election commissions allows political parties and candidates manipulate the formal procedures for obtaining control over the processes of election administration, destabilization of the electoral process or excessive financial gains through reallocation of quotas between influential members of the elections.

Problems of competence of members of election commissions are closely connected with the formation of their composition out of the representatives of the electoral subjects. However, as evidenced by the expert dialogue in Ukraine, appeals to change the approaches to the formation of election commissions by limiting the influence of political parties and candidates do not have unambiguous support. Similarly, there is no unequivocal and favorable response to the proposals to substantially limit the right of electoral subjects to replace the members of the commissions. Challenges of democratic transformations in Ukraine require mutual control between the parties and candidates, which in practice leads to destabilization of the process of organizing and conducting elections.

According to OPORA, the recommendation to increase the effectiveness of the electoral administration in Ukraine is fulfilled in part. A sign of progress in the training practices of members of election commissions is the creation in 2016 of the Training Center at the CEC. The function of the center is to manage the process of training members of election commissions and other election participants.  The center is administered by the CEC in cooperation with the International Foundation for Election Systems (IFES). Thus, the cooperation of the CEC and an authoritative international organization allowed the creation of a permanently functioning and institutionalized training center for electoral participants.

Other indicators of implementation of the recommendations are unsatisfactory.  During 2014-2018, the Verkhovna Rada of Ukraine did not adopt any legislative acts that would provide for the higher requirements for the qualification level of commission members, or for how the approaches to the formation or replacement of members of election commissions would be reviewed.

The lack of legislative requirements for compulsory certification of potential members of election commissions and the high rotation rates of members of election commissions are negative factors in ensuring a professional and stable electoral administration in Ukraine. Thus, at the time of the publication of this report, the state had not found any long-term solutions to the problems in the formation, activity and rotation of members of election commissions. This problem will definitely affect the quality of the election process of the President of Ukraine.

Improving the activities of political parties

Subject matter of the recommendation: It is necessary to develop internal paty democracy. Also, parties should be deprived of the opportunity to cancel voting results and determine who should be recognized as elected among the included party lists.

The recommendation is fulfilled only in terms of the abolition of the provisions of the Law of Ukraine "On Elections of People's Deputies of Ukraine" in relation to the right of political parties to exclude the candidates from the list by the proportional component of the electoral system after the election results are established.  Legislative changes regarding the right of parties to vote in electoral lists after the elections came into force in February 2016 but were canceled by the decision of the Constitutional Court of Ukraine dated December 21, 2017.  The grounds for considering the issue by the Constitutional Court was the appeal of People's Deputies of Ukraine, which confirms the passive nature of the implementation of the State's recommendations. The urgency of abolishing undemocratic provisions of the legislation is extremely high in connection with the approaching of the next election of people's deputies of Ukraine in 2019.

An important aspect of the recommendation is to ensure proper dialogue and the adoption of amendments to article 81 of the Constitution of Ukraine, which establishes the possibility of early termination of the powers of the people's Deputy of Ukraine, elected from the political party in the case of his transition to another faction.  Such an approach does not comply with European standards, as stated in the resolution of the Parliamentary Assembly of the Council of Europe and the documents of other international organizations.  As of the publication date of this report, Article 81 of the Constitution of Ukraine had not been amended, and there is no parliamentary dialogue on this issue. 

OPORA critically evaluated the state of development of mechanisms of internal party democracy. European standards, including the Code of Good Practices on the political parties of the Venice Commission, suggest a liberal approach and non-interference of the state in the activities of political parties, avoiding excessive regulation.  International organizations propose the introduction of various educational and awareness measures, not only the changes to the law. OPORA was not able to obtain any reliable information about the wide reform of internal party practices or the implementation of large-scale information and awareness-raising activities for leaders and party members.

The incomplete implementation of the recommendations on improving the activities of political parties can most significantly affect the course of the next election of the Verkhovna Rada of Ukraine. To a lesser extent, this concerns presidential elections, but these issues are an integral part of the political dialogue on the directions of broad electoral reform in Ukraine.

Media activity under electoral reform

Subject matter of the recommendation: To consider possibilities for increasing professional standards and mass media awareness. The Election Law must clearly state how paid materials related to elections shall be marked in printed media. The Election Law should provide for a clear system of sanctions for violating the regulations governing the activities of the media.

The recommendation relates to elections at all levels and should be implemented, either by amending the law, or by reviewing the practices of the media in the election process. Relevance of the implementation of the recommendations is of secondary importance, since the ways in which it is proposed to improve the media practices during the elections do not cover the whole range of problems in this area.

This recommendation is partially fulfilled, as professional media organizations continue their efforts to establish standards for media performance during the elections. A number of such associations initiate more intense professional ethics for journalists, counteracting unfair practice of placing "pre-paid materials" and other manifestations of non-compliance with professional standards.

The partial implementation of the recommendation is also confirmed by the fact that the Code on administrative violations sets sanctions for non-observance of the requirements of electoral law. Administrative liability for such breaches comes in the form of fines. The amount of such fines is a controversial issue and can be increased to enhance the effectiveness of combating violations by the media in the election campaign. Instead, part of the recommendation regarding the proper labeling of election campaign materials in print media is not implemented. Despite the current provisions of the Law of Ukraine "On Advertising" regarding the separation of advertising from other content, print media often ignores the need for a clear demarcation of political advertising.

Recommendations are not fully implemented, but the authorities have plans for their implementation

OPORA identified 5 priorities for electoral reform that have not been implemented, but they are provided for with provisional implementation plans. These plans, as a rule, are of a procedural nature and are not backed by effective political guarantees for comprehensive solutions in the electoral process.

These election priorities include the legitimate rotation of the members of the CEC and the reform of the activities of this commission, the equipment of polling stations for people with disabilities, increasing the effectiveness of the investigation of election fraud, prevention and sanctioning administrative resources, and providing for the mechanisms for ensuring the participation of internally displaced persons in the elections.  These recommendations have a high level of relevance to the electoral process in Ukraine and form the conditions for the legitimacy of the electoral process.

Renewal of the CEC

Subject matter of the recommendation: Update the composition of the CEC by appointing members of the CEC to all positions within the Commission whose term of stay has expired. The CEC Law should include "impartiality" as one of the guidelines for the work of the CEC. It should also specify in more detail the role of parliamentary factions in electing the members of the CEC to ensure the balance and plurality of the CEC.

In 2014-2016, 13 of the 15 members of the CEC ended the term of office, but they have not been replaced by the decision of the Ukrainian parliament. International organizations have repeatedly appealed to the authorities of Ukraine with the request to have a legitimate rotation of the CEC members. In particular, the request is voiced in a statement by the ambassadors of G7 countries, publiched in November 2017. Lingering issues about the dismissal and the appointment of members of the CEC have a negative effect on the implementation by the Commission of its own powers and on the level of public confidence in this collegiate body. The uncertainty about the prospects for the members of the CEC creates the potential conditions for political influence and / or pressure through political actions of a negative nature. In the event of the next national elections in Ukraine, the old CEC might be expected to make politically biased attempts to appeal against the Commission's decision.

Despite the fact that the Verkhovna Rada of Ukraine did not appoint new members of the CEC, all necessary legal grounds were formed for consideration of the issue at the parliamentary session. At the beginning of this year, the President of Ukraine registered in the parliament applications for the dismissal and appointment of members of the CEC, which were considered by the Parliamentary Committee on Legal Policy and Justice. Thus, from a legal point of view, the parliament has prepared documents to adoptt an effective decision.

Heads of a number of parliamentary factions and groups argued that the rotation of the members of the Central Election Commission proposed by the President of Ukraine was inadmissible. The submission made by the President of Ukraine does not include representatives of one of the parliamentary factions (Opposition Block), which implies non-compliance with the international standards for compiling a higher level election administration body. In addition, the submission of the President of Ukraine includes one candidate more than the number of vacancies in the Commission. It is important to emphasize that these substantiated statements of parliamentary politicians can not serve as justification for the parliament's withdrawal from adopting any decision on the submission from the Head of State. In case of any objections, the parliament should decide on the adopted candidates and additionally apply to the President of Ukraine for the replacement of individual candidates.

The Commission also needs internal reform, including the launch of its territorial units.

Prevention of Abuse of Administrative Resources in the Elections

Subject matter of the recommendation: More efforts shall be applied to monitoring, prevention, and application of sanctions for abuse of administrative resources during election campaigns.

According to OPORA observers’ estimates, abuse of administrative resources is the most common and widespread way to influence the voting results. In particular, it is manifested in the use of powers and budgetary resources for campaigning by candidates and parties that are potential or actual electoral subjects.

The recommendation is not fulfilled, while the progress is reduced to declaring intention to implement it. The only but not sufficient confirmation of the declared intentions is the development and registration in the Parliament of the government draft law No. 8270 on increasing the responsibility for election crimes.

Guarantee of election rights to IDPs

Subject matter of the recommendation: Ensure mechanisms for guaranteeing the right to vote to displaced persons at all elections, including local elections.

The recommendation is not fully implemented, but the introduction of mechanisms for the participation of internally displaced persons in local elections is foreseen by the government. The strategy for the integration of internally displaced persons and the implementation of long-term decisions on internal displacement for the period up to 2020, approved by the Cabinet of Ministers of Ukraine, contains provisions to ensure the electoral rights of this category of citizens at local elections. The Strategy points to the need to develop a mechanism for the implementation by internally displaced persons of their electoral rights at local elections held in territorial communities of their permanent residence. According to a government document, its measures should be implemented by 2020.

The current state of the electoral legislation and the legislation on the State Register of Voters do not meet the UN Guiding Principles on Internal Displacement, and other international documents, and the national law on internally displaced persons. Approximately 3-4% of Ukrainian-internally displaced people have no legal opportunity to take part in local elections at the place of their actual residence. Instead, their access to vote in national elections is limited to a one-time procedure for temporary change of voting without changing the voting address. Internally displaced persons occasionally apply to the judiciary for change of their voting address, including appeals to the European Court of Human Rights.

Setting up polling stations

Subject matter of the recommendation:Polling stations should be equipped to meet the needs of people with disabilities

The key issue is still the access of people with disabilities to polling station rooms and provide this category of citizens with information on the electoral process. In addition to NGOs of people with disabilities, also the Government of Ukraine recognizes the systemic difficulties in ensuring access of such citizens to buildings, including polling stations. The sign of state recognizing systemic shortcomings in this area is the elaboration and submission to the Parliament of a government draft law of Ukraine amending some legislative acts of Ukraine to strengthen the requirements of the laws of Ukraine aimed at creating unimpeded access for persons with disabilities to buildings and structures. This project involves making changes to the code of Ukraine on administrative offences and the laws of Ukraine "On the Regulation of Urban Planning Activities", "On Architectural Activities," "On the Fundamentals of CIty Planning", in terms of establishing effective control mechanisms over compliance with the requirements of the legislation on the need to create a smooth environment for persons with disabilities and other low mobility groups.

According to the practices of the previous elections, there is no enforcement in Ukraine of the provisions of the Law of Ukraine "On Elections of People's Deputies of Ukraine" regarding the use of stencils for election ballots. These stencils are not produced by the CEC due to technical problems. Campaigning materials remain virtually inaccessible for certain categories of people with disabilities, as election commissions, parties and candidates do not provide for the necessary formats of the materials.

Since holding extraordinary national elections and local elections in 2014-2017, there have been no comprehensive changes in the legislation and in practices on participation in elections for people with disabilities. The Recommendation is partially provided by the plan for its implementation, taking into account the adoption by the Parliament in the first reading the draft law of Ukraine on amendments to certain legislative acts of Ukraine on strengthening the requirements of laws of Ukraine, aimed at establishing unrestricted access for persons with disabilities to buildings and structures (reg. No 6536). This document, if it is finally adopted, can have a positive effect on solving the problems of access for people with disabilities to the polling stations. Regarding other aspects of the participation of people with disabilities in the electoral process, the Government and other public authorities did not make clear plans.

Countering the Violation of Election Law

Subject matter of the recommendation: To raise efficiency of the mechanisms for investigation of election crimes and to introduce effective sanctions for the violation of election law provisions, as well as to simplify the procedures for contestation of election fraud.

The ratio of initiated criminal proceedings and those brought to court, following the results of national and local elections in Ukraine, testifies to the low effectiveness of disputed crimes against the electoral rights of citizens. In 2014-2017, when the national and local elections were conducted, OPORA documented the growth of the number of cases attmpting to bring to justice individuals who resorted to violations of the law during the election. But successful cases are few, with virtually no cases of liability of organizers of falsifications or of candidates.

The Verkhovna Rada of Ukraine did not make any changes to the electoral and other legislation in order to more effectively counteract the violations in the elections and their investigation. With no legislative improvements, law enforcement agencies can not demonstrate significant progress in preventing and investigating violations of electoral law.

It is a positive fact that the Government of Ukraine is taking steps to develop and register in the Parliament a draft Law of Ukraine No. 8270 (on increasing the responsibility for election crimes). The Verkhovna Rada of Ukraine still has the opportunity to implement the recommendation at the autumn session. The process of the presidential election in Ukraine is officially launched at the end of December 2018, and therefore there is a sufficient timeframe for the implementation of the recommendations. It should be noted that in case of adoption of amendments to the legislation before the official start of the presidential elections in Ukraine, law enforcement authorities should maximally consolidate their efforts to inform stakeholders about the peculiarities of the new regulation.

Recommendations are completely failed and authorities do not have plans for their implementation

According to OPORA estimates, 6 priorities for electoral reform were not fully implemented, and the authorities did not have plans for their implementation. Such recommendations include ensuring gender equality during elections, improving the process of registration of candidates, ensuring the participation of national minorities in the election process, informing voters, improving the process of counting and establishing the results of voting, improving the process of registering voters and forming voting rolls.

Ensuring gender equality

Subject matter of the recommendation:A mechanism shall be developed to facilitate gender balanced representation in politics and electoral system of Ukraine (30% quota in party lists).

The Inter-Parliamentary Alliance's data show that Ukraine holds extremely low positions in the ranking of gender-balanced parliaments of the world (145 of 193 countries). Women make up 12% of the parliamentary corps of the Verkhovna Rada of Ukraine. According to OPORA estimates, at 2015 regular local elections, women were strongly represented and even dominated in the composition of politically non-influential village councils (55.7%), but they were critically underrepresented in oblast councils (14.7%).

National level documents contain provisions for implementing recommendations on equal rights and opportunities for men and women in politics.

The law of Ukraine "On Political Parties" obliges political parties to include in their statutes the provisions on the norm of representation of one gander candidates on the election the party lists in the parliamentary or local elections of at least 30% of the total number of candidates on the list. The state also applies to political parties some financial incentives to ensure a balanced representation of men and women in the electoral process. After the elections of people's deputies of Ukraine held in October 2014, 10% of the annual amount of public financing of political parties has been distributed between the parliamentary forces, if the number of one gender members does not exceed two-thirds of the total deputies of the party. Since 2015, in Ukraine the gender quota has been applied during the formation of electoral lists. However, as the practice of election commissions and courts in the regular 2015 local elections showed, violations by local organizations of political party of the requirements for the formation of gender-balanced electoral lists shall not be the ground for rejecting registration of candidates from such a electoral subject. Instead, the law on the election of people's deputies of Ukraine does not contain commitments to adhere to 30% of the gender quota. 

Problems in practical implementation of tasks to ensure equal rights and opportunities of men and women are also observed on the substatutory level. The public social program for ensuring equal rights and opportunities for women and men for the period up to 2021 was approved by the Government of Ukraine on April 11, 2018. The public commissioner and administrator of the program is the Ministry for Social Policy, while the Minister for Social Policy is the Program Coordinator. One of the tasks of the adopted program is to increase the ratio of women among people's deputies of Ukraine, deputies of oblast and local councils (cities of regional importance). The development of the program provided for an increase in the proportion of women in the parliament from 12% of the general body of deputies in 2018 to 20% in 2021. The expected result of the program is also an increase in the proportion of women among deputies of rayon and oblast councils from 20% in 2018 to 25% in 2021. In our opinion, the calculations of the authors of the program do not fully correspond to the current state of electoral legislation, since in 2015, local election legislation envisages the inclusion in the electoral lists of at least 30% of each gender.  Instead, ways to achieve the set goals are unclear, which makes it impossible to effectively plan public policy in this area.

Network OPORA notes the state's positive steps in ensuring the legislative framework for overcoming the imbalance in the political representation of women and men. These steps include introducing amendments to the legislation on political parties and on local elections. However, it must be noted that the mentioned steps were not comprehensive and complex, which created significant obstacles for the practical implementation of the legislative provisions. The problem of harmonizing legislation on political parties and laws on elections at different levels remains acute. Recommendations of international organizations under analysis in this OPORA report are the response to the low effectiveness of the application of the gender quota in the electoral lists, first introduced at the regular local elections in 2015. After holding the 2015 local elections, the state did not take any specific steps to overcome gaps in the law or to improve the practices used by political parties and candidates. Thus, recommendations to strengthen the legislative guarantees of the principle of equal opportunities for men and women have not been implemented. Government agencies, in our opinion, have not yet any presented specific plans to remove legislative and practical barriers for balanced gender representation.

Ensuring the participation of national minorities in the electoral process

Subject matter of the recommendation:Fostering effective participation of ethnic minorities in social life through revision of the relevant national legal framework and local practices.

The problem of participation of ethnic minorities in national elections is closely linked to a broad debate on the optimal electoral system. The final reports of the OSCE / ODIHR Observation Missions reinforce the need to take into account the areas of residence of national minorities when establishing electoral districts, as well as the possibility for such minorities to apply self-nomination. Such possible solutions depend on the results of the political dialogue on the choice of the electoral system. Representatives of certain ethnic minorities occasionally address public authorities of Ukraine to request for strengthening the guarantees of participation of national minorities in the electoral process. In particular, some people's deputies of Ukraine appeal to the CEC regarding the possibility of revision of the boundaries of single-mandate constituencies in the elections of people's deputies of Ukraine. The international organizations that provided the recommendations drew attention to the need for harmonization of the electoral legislation and legislative regulation in the part on national minorities in relation to the production of texts in the bulletins in regional languages. In the latter case, the Observation Mission noted the lack of complaints on this issue from the members of the national communities themselves. The problem of providing documents to representatives of individual national minorities is also an additional aspect enabling their participation in elections.

As evidenced by the CEC's response to the appeal of people's deputies representating one of the national communities, in Ukraine, there is no reliable data on the actual state of representation of national minorities. In the response, the CEC notes that the information available only reflects the results of the 2001 National Population Census and is not correct.

After the extraordinary elections of people's deputies of Ukraine (2014) and local elections in 2015-2017, the Verkhovna Rada of Ukraine has not changed the legislation concerning the procedure for the formation of electoral districts or other aspects of the participation of national minorities in the elections. Equally, there are no changes concerning the possibility of producing the text of ballot papers in the languages ​​of national minorities. The process of implementing legislation with a certain degree of conditionality can only include increasing the attention of state authorities to the problem of providing documents to representatives of national minorities (primarily, the Roma community).

Registration of candidates

Subject matter of the recommendation: Rules for registration of candidates shall be clear and determined in advance to the election day, the same as the decisions on the registration of candidates.

The implementation of this recommendation implies not only amendments to the legislation, but also the formation of standardized practices for the resolution of electoral disputes at the level of commissions and courts.

Regular 2015 local elections and the first local elections of 2016-2017 were characterized by mass cases of non-uniform application of the law on registration, rejection in registration, or cancellation of registration of candidates. The results of the monitoring of OPORA and international organizations indicate that territorial election commissions and courts applied different approaches in identical electoral disputes. This was especially evident at the stage of registration of candidates in the part of the interpretation of errors and inaccuracies in the documents as a valid reason for refusing registration of participants in the election race. Another widespread case was about different interpretations of the procedure for making a deposit or submission by candidates for elected positions their declarations of income, property and liabilities. At the regular 2015 local elections, OPORA observers and representatives of the OSCE / ODIHR Observer Mission recorded different practices of the CEC's response to the TEC's refusal to register candidates. In some cases, the CEC assigned TECs to repeatedly consider registration application of the candidate, whereas in other cases, the Commission independently adopted decisions about registration of candidates for elective office. Cases of legal uncertainty were recorded when establishing the fact of a violation by a registered candidate as to restrictions on simultaneous ballot. Taking into account the set of fixed problems at the stage of registration of candidates, the state must overcome the problem of unequal application of electoral legislation by means of clarification and improvement of regulatory acts.

After holding the regular and first local elections of 2015-2017, the Verkhovna Rada of Ukraine has not made any changes to the electoral law in the aspect of regulating registration procedures or refusing registration of candidates. The problem of unequal application of the law and legal uncertainty remains relevant for local elections in Ukraine.

Keeping the State Register of Voters

Subject matter of the recommendation: Improving the system of keeping the State Register of Voters and clarification of voting lists, such as to consider the reduction of terms for the formation of preliminary voting lists (for Presidential election), to introduce voting lists available for download and print to parties and to civil society organizations.

No relevant amendments to the Law "On the State Register of Voters" have been introduced. The procedure for obtaining copies of lists of voters remains unchanged despite suggestions from the OSCE/ODIHR to consider the possibility of introducing voting rolls that can be downloaded and printed for political parties, candidates and civil society to effectively check the voting rolls, increasing, therefore, transparency. Regarding the extension of the timetable for introducing the previous voting rolls to PECs (the current norm is 8 days at the Presidential elections), the draft Election Code takes into account this recommendation. 

Although there are no sufficient grounds to speak about the poor quality of the State Register of Voters, in practice, though, CSOs and parties are deprived of the possibility to exercise effective control over the quality of the voting rolls. In the case of belated detection of potential problems with the voting rolls and no conditions to prevent them, it can make a serious negative impact on the progress and results of the vote.

According to OPORA, the Service of the Administrator of the State Register of Voters does not show any significant interest in conducting an inclusive debate on strengthening transparency in the functioning of the State Register. The absence of such a discussion makes it impossible to formulate consolidated decisions on the implementation of recommendations with account for potential risks.

Improving the Process of Counting and Establishing Election Results

Subject matter of recommendations: Attention must be paid to reviewing the practical aspects of the counting process and the outcome of the vote. In particular, the introduction of computer facilitated procedure for preparing protocols, which will reduce the number of returning protocols, should also consider the creation of a secure electronic system for establishing the results of the vote. Also, the CEC should be granted legal authority to ensure the timely publication of provisional results of the vote on the level of the polling stations for each area, according to the internationalih standards.

Election laws do not contain norms that would indicate the progress in the implementation of the recommendations.  Instead, the CEC did not take appropriate decisions during the period in between the elections.

In an experiment, the CEC examines the possibility to electronically transmit the vote count data from all polling station election commissions directly to the CEC server. The debate is ongoing on the possible introduction of e-voting.However, no practical steps have been taken in this direction.In addition, it should be borne in mind that this aspect is merely one of the elements of the recommendations aimed at simplifying the procedure for counting votes and establishing voting results.

Informing Voters

Subject matter of recommendations: Consideration should be given to the possibility of adopting an effective information and education strategy for voters.

OPORA’s Survey shows lack of CEC strategies or dedicated programs to inform voters about the possibility of checking the data in the State Register of Voters, the special features of the procedure of temporary places of voting without changing the voting address, provisions for the current electoral law and sanctions for the violation of the law. The low activity of the CEC in terms of informing is of particular concern in the context of increasing mobility of citizens between regions, large-scale internal displacement of citizens from the conflict zone, the acute need to inform the inhabitants of the temporarily occupied territories of Ukraine before the national elections.

According to OPORA, full-featured awareness campaigns for voters could enhance community trust to the accuracy of the State Register of Voters and the voting rolls, as well as empower civic control in this area.The equally important task, which is still not fully implemented, is informing the inhabitants of temporarily occupied territories, internally displaced persons and labor migrants about the procedures for voting at the actual place of residence. In the latter case, the program of informing and educating voters is a mechanism for the political integration of millions of voters who are mobile within the country.

Top priority steps for further implementation of recommendations

Further steps in partially implemented recommendations:

Concerning a comprehensive electoral reform:

• To guarantee proper elaboration of the Election Code to the second reading by VRU Committee on Judicial Policy and Justice.
• To consider the draft Election Code in the Parliament not later than in October-November 2019.

Concerning the growth of transparency in political party and campaign financing:

• To improve and simplify the reporting procedure for political parties, to specify admissible types of financial expenses for parties.
• To establish a clear procedure for oversight and controlling functions and introduce effective sanctions for violation of the legislation.
• To harmonize electoral legislation with regulations on state financing of political parties, giving a ground for proper oversight over campaign expenses of electoral subjects.

Concerning the growth of professionalism of electoral administration:

• To adopt amendments to the legislation introducing mandatory certification of potential election commission members before regular parliamentary elections.
• It is reasonable to oblige political parties and candidates to nominate individuals who have already passed a certification at the level of CEC or an already established Training Center under this Commission.
• While the comprehensive amendments to the legislation are being adopted, the CEC should focus on the training of election commission members by itself and strengthening of verification instruments aimed to check the training efficiency.

Concerning the improvement of political parties' activities (internal party democracy and reconsideration of the Article 81 of the Constitution of Ukraine regarding the grounds for early withdrawal of an MP of Ukraine):

• While a wide constitutional reform is ongoing, it would be reasonable to take into consideration the recommendations concerning a possibility of pre-term withdrawal of an MP of Ukraine, elected to represent a political party, in case he leaves the party.
• Political parties should reconsider their statutes to strengthen the mechanisms and procedures for inter party democracy.
• Political parties should introduce wide training and awareness programs, to raise the competence of their members and local leaders.

Concerning mass media activities:

• Verkhovna Rada of Ukraine, mass media companies and their professional associations should hold discuss tougher sanctions for violation of electoral legislation by the media. On one hand, these sanctions should be strict enough to urge mass media representatives to follow the law. On the other hand, fines and sanctions should not make journalists to apply self-censorship, or depend on legal measures of influential candidates.
• To clarify legislative regulations, which concern marking of campaign materials in printed media. This will help to avoid placement of paid hidden campaign materials by electoral subjects.

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Concerning protection of electoral rights of internally displaced persons:

• It would be reasonable to introduce amendments to laws of Ukraine on elections and on the State Voter Register giving internally displaced persons and migrant workers the right to change electoral address on their own initiative.
• Verkhovna Rada of Ukraine should urgently consider draft laws guaranteeing electoral rights of internally displaced persons. Draft Law of Ukraine #6240, which was subject to inclusive discussion and contains regulations in prevention of electoral violations, should be of a top priority for consideration and adoption by the Parliament.

Concerning the polling stations with disabled access/providing the disabled with information about electoral procedures and candidates:

• Ukrainian Parliament should adopt the law on disability access to buildings and premises, with consideration of public suggestions. Ukrainian Government, for its part, should guarantee proper coordination of each authorized body in verification of adherence to the law guaranteeing free access to voting premises for the disabled.
• The Parliament of Ukraine should urgently consider all the registered projects concerning participation of disabled persons in the election process, including amendments to the adopted in the first reading draft Election Code.

Concerning renewal of the CEC and reforming of its activities:

• To conduct an urgent rotation of CEC members based on recommendations of the Venice Commission concerning the inclusion of nominees from each political party, represented in the Parliament.
• To provide clear regulations on the authority of CEC's territorial subdivisions and envisage enough financing for their activities.
• To extend in laws and regulations the list of public information about elections, maintained by the CEC. To provide a legislative and financial basis for the strengthening of informational safety during elections, and widen access to preliminary consideration of draft decisions by the CEC for organizations independent of political groups.

Concerning the liability for violation of electoral legislation:

• Urgent consideration of Governmental draft law #8270 by the Parliament, as well as three alternative draft laws concerning an increased liability for violation of electoral legislation.

Concerning prevention of the administrative resources misuse during elections:

• To improve a legislative base through the introduction of sanctions for various misuses of administrative resources (classifying them not only as electoral violations, but also as criminal offenses).
• To guarantee efficient application of the legislation establishing liability for misuse of administrative resources by the authorized bodies, specifying their jurisdiction and responsibilities.
• To regulate on a legislative level the problem of unclear separation of activities in office and campaigning activities by public servants.
• To urge electoral subjects to apply self-regulating limitations through a development and introduction of ethical standards.

Concerning the gender equality:

• To oblige political parties to include to their statutes regulations on the maximum level of the same gender representatives in electoral lists for parliamentary elections and elections to local councils, reaching 70% or even 60%. This requirement should also introduce inclusion of maximum three representatives of the same gender to each group of five candidates in the corresponding electoral list on parliamentary elections and elections to local councils.
• To include in the legislation on parliamentary elections and elections to local councils a mandatory provision introducing the rejection of electoral lists, which do not comply with the requirement on balanced representation of men and women.
• To introduce on a legislative level the substitution of a withdrawn candidate with a candidate of the same gender.

Concerning the participation of national minorities in an election process:

• To strengthen the capability of political parties to take into consideration the interests of national minorities when forming electoral lists and election programs through informational and awareness-rising events.
• The government should collect a complete data, which the CEC described as unreliable, on the number and location of compact residence areas of national minorities.
• The CEC should regulate at the level of legislation and bylaws the procedure for inclusion of compact residences of national minorities when determining constituency boundaries of single-member districts before parliamentary elections.

Concerning the proper registration of candidates:

• Harmonization of electoral and adjacent legislation concerning submission of electronic declarations by candidates, as well as other aspects of adherence to anti-corruption legislation.
• To detail the procedure for detection of violations committed by candidates in restrictions on simultaneous nomination.
• To detail the basis and procedure for rejection of candidates submitted for registration, aimed to avoid any rejections based on errors or inaccuracies in registration documents.

Concerning the functioning of the State Register of Voters:

• It is reasonable to extend the deadline for compilation of preliminary voter lists, giving the voters enough time for familiarization with voters lists and submission of any necessary changes.
• It is reasonable to consider a possibility to introduce voter lists, which can be downloaded and printed, for political parties, candidates, and civil society.

Concerning the improvement of the tabulation and determination of election results:

• The CEC should receive legal powers to guarantee timely publication of preliminary election results at the level of polling stations in each oblast, in accordance with international standards.
• As for the training of PEC members, more attention should be paid to the vote count and filling in precinct protocols. It is also reasonable to consider simplification of a protocol form (making some wordings easier for understanding).

Concerning the voter awareness:

• It is reasonable to develop and start introducing plans for strategic cooperation between the CEC and mass media, particularly dissemination of socially oriented awareness materials.
• Strengthening CEC's coordination of awareness activities conducted by State Voter Register maintenance bodies; giving them precise awareness-raising goals and developing awareness materials for informational activities in the regions.
• Introducing special information and awareness programs for the citizens of temporarily occupied territories concerning opportunities for their participation in national elections.
• Introducing special informational and awareness programs for internally displaced persons and migrant workers concerning the realization of their active electoral right.