IFES continues efforts to strengthen the election dispute resolution system in Ukraine
The Ukrainian system of election dispute resolution (EDR) remains a significant weakness and vulnerability. While the election disputes can be resolved by courts and election commissions, politicization of the election commissions, as well as weak professionalism of the commissioners stemming from their frequent replacements by parties and candidates, decrease the effectiveness of EDR by the electoral administration. Courts generally demonstrate a higher level of effectiveness, but political influences, corruption and integrity issues, alongside the lack of comprehensive guidance from the Supreme Court on how certain categories of election disputes should be resolved as well as the lack of systematic training for judges on EDR and electoral procedures, weaken their role in ensuring and protecting electoral rights.
The current legal framework clearly articulates what is and is not permissible under law, however, there are often no penalties in place to ensure enforcement of the respective provisions or the existing penalties can hardly be considered effective, proportionate and dissuasive. Administrative fines in most cases are too low to effectively dissuade voters, candidates, and journalists from committing electoral offences. Many violations, such as those relating to election campaigning, only elicit official warnings, which do not prevent offenders from committing subsequent offences. Conversely, some minor criminal offences can entail lengthy prison terms; but, law enforcement agencies consider them too harsh and as a result, courts release offenders on probation or close the criminal case altogether. During every election, law enforcement agencies open hundreds of criminal cases, but the majority of cases do not result in effective prosecution of those who committed the crimes. The flaws in the current EDR system have been highlighted in the IFES Electoral Justice Assessment and IFES/OPORA advocacy document titled “Key Priorities for Reform of Elections, Referendums and Political Finance” issued in 2017.
To highlight and address the major flaws in the current EDR system in advance of the forthcoming parliamentary election, and to build on its efforts during the presidential election, IFES has conducted a number of programmatic activities, namely:
Police trainings during the 2019 presidential and parliamentary elections. IFES issued a sub-award to Civil Network OPORA to implement a project on police training titled, “Effective Police to Provide for Lawful Elections.” Key project objectives include strengthening the capacity of patrol and national police to effectively and promptly react to, report, and investigate instances of electoral violations during the 2019 presidential and parliamentary elections. Trainings were conducted for two groups: prevention police (patrol police, emergency response groups), who are in charge of detecting and preventing violations, and national police investigators who collect evidence and investigate electoral crimes. Participants had an opportunity to examine common violations through interactive simulations and discussions. During the 2019 presidential election, the training initiative for prevention police and national police investigators was held in 25 regions of Ukraine and gathered over 1,400 participants (approximately 20 percent women and 80 percent men). The police training initiative has received a positive response from the international election observation missions. For the early parliamentary elections, additional 60 trainings were held across 25 regions and brought together over 1500 participants (approximately 24 percent women and 76 percent men). Over 96 percent of all training participants indicated that they will definitely or likely use the knowledge and skills obtained during the training in their work.
Police Handbook. In addition to the police trainings, OPORA and IFES have developed pocket handbooks for both the presidentialand parliamentary elections, outlining the code of conduct for law enforcement staff in charge of electoral security on Election Day. Both handbooks contain procedures for law enforcement staff when faced with typical problematic situations at polling stations.
The handbooks are reader-friendly, utilizing flowcharts, illustrations, and icons, and serve as a reference guide for law enforcement staff working at polling stations. The texts of both handbooks were approved by the Ministry of Interior, National Police, and the Central Election Commission (CEC). IFES, upon request from the National Police, has printed and disseminated 128,000 copies of the handbook to law enforcement staff during both elections.
Training of Judges of the Administrative Courts on EDR. During both 2019 national electoral events, IFES and NSJ implemented a training program to support electoral justice in Ukraine in the context of the upcoming elections. A training of trainers (ToT) session and six regional trainings for judges were held in Odesa, Kyiv, Dnipro, Kharkiv, and Lviv (two training sessions each) during the presidential election, engaging 124 judges (71 men; 53 women) of administrative courts on various aspects of material and procedural law related to the presidential election. In the lead up to the early parliamentary elections, IFES and NSJ organized a ToT and four regional trainings (in Kharkiv, Kyiv, Lviv and Odesa) for judges, bringing together 88 judges (30 men; 58 women) of the district administrative courts and administrative courts of appeals.
Strengthening judges’ theoretical and practical knowledge of various aspects of the electoral campaign, voting procedures, vote counting, tabulation of results, and the use of election technology will enable judges to effectively deal with the complex cases they face in their work.
EDR FAQ. To assist domestic and international observers in observing EDR procedures during the 2019 elections, IFES has also produced an outline of the respective procedures for the the presidential and parliamentary elections titled “Election Dispute Resolution: Frequently Asked Questions”. The EDR FAQs cover jurisdictions of the various layers of the EDR system, timelines for filing complaints, resolving disputes, and lodging appeals against decisions taken by the first instance court, as well as available remedies and other procedural aspects of EDR. As part of its efforts aimed to strengthen the current flawed EDR system, IFES, together with the civil Network OPORA continues to advocate for the adoption of the Draft Law No. 8270 aimed to improve the system of sanctions for election-related offences and eliminate the possibilities for circumventing the restrictions introduced by the election laws. The Draft Law No. 8270 was sponsored by the Cabinet of Ministers and tabled to the Parliament on April 13, 2018. On February 6, 2019, the Parliamentary Committee for Support of the Law Enforcement Activities recommended the Parliament to adopt the Draft in the first reading. The Draft, however, has yet to be considered by the Rada.
The Draft Law was prepared by Civil Network OPORA in close cooperation with a variety of stakeholders, including civil society representatives, the National Police, the Prosecutor General’s Office, the Ministry of Interior and the Central Election Commission. It proposes amendments to the Code of Administrative Offenses, the Criminal Code and laws governing national and local elections to establish criminal sanctions for distribution of goods and services to voters combined with election campaigning on behalf of a political party or candidate; and, for forging, destroying and stealing ballot papers, protocols, candidate nominations for election commissions, commission decisions and records, voter lists and documents produced by or submitted to election commissions. The proposed Draft also administers criminal sanctions for election commissioners’ failure to fulfill their duties without a compelling reason; disclosing personal voting results in the precinct, or election location; stealing or destroying a voter’s ballot paper; and, restricting access to election commission meetings and election campaign events.
IFES will continue to provide technical support and assistance to strengthen the EDR system in Ukraine after the 2019 elections.