Ukraine

By-elections in Ivano-Frankivsk region highly contentious with significant irregularities

OPORA hereby states the failure to ensure the right of voters for lawful and fair establishment of their voting results in a single-member constituency No 87 at elections of a people’s deputy of Ukraine. 

The extraordinary challenge for democracy and legality of elections in the constituency requires from the government and the law-enforcement authorities taking prompt actions and establishing the alleged offenders attempting to distort the election results and the alleged fraud with election documentation. In case there is no objective and comprehensive investigation, the returns of the interim elections of a people’s deputy of Ukraine will have a low social legitimacy. OPORA observers hereby insist on investigating all and every version of causes for incompliance of the PEC protocol data and the re-count outcome, or any other wrongdoings.  

The process of establishing voting results included excessive politization of DEC members work and the ongoing rotations on the basis of non-public party affiliations which affected the commission’s ability to act in an organized and unbiased manner to respond to challenges in the election process.

Final voting results established by DEC are based on the commission’s decisions on declaring invalid the voting at 5 polling stations. Furthermore, they also account for the inconsistencies between the original protocols of 6 PECs and the re-count outcomes. The identified issues affected the final voting results in the single-member constituency.

According to the re-count, the number of votes supporting Oleksandr Shevchenko (“For the Future” party) has dropped at 6 polling stations out of 20. According to the protocols of 6 PECs, the candidate was supported by 1,676 votes. On the other hand, the re-count confirmed only 1,172 ballots in his favour. 

The peculiarity of the challenging situation was in the fact that the PEC protocols data and the results of the re-count did not coincide in the number of ballots supporting the candidate Oleksandr Shevchenko but they coincided in the number of issued and unclaimed ballots, signatures of voters in election rolls, and the number of votes supporting other candidates.

By the moment of the re-count decision made by the DEC, and during the administration of the re-count, electoral actors have not provided any convincing evidence on breaches by PEC members that might imply they had faked the voting results. Instead, PEC members expressed their suggestion about the broken integrity of packaging of the election documentation from their stations that could have taken place upon the transfer of ballots to the DEC. Although the statements lack any legal confirmation yet or the sufficient evidence base, OPORA demands that the National Police of Ukraine promptly investigate them and publish the preliminary results of the investigation.

In our view, the National Police of Ukraine, shall promptly collect the testimonies and the documents from the commissioners, candidates, official observers, and other electoral actors staying at PECs in the constituency and at DEC meetings. It is crucial that the law-enforcement authorities identify and make public all the proven facts concerning the storage and protection process of ballot papers in the DEC facilities, attendance of DEC members and electoral actors in the DEC premises at different stages of establishing voting results. At the same time, OPORA observers hereby express their readiness to support the law-enforcement bodies in their investigations by offering testimony and any evidence they possess.

In this respect, OPORA hereby expresses their concern about the lacking public response from the Security Service of Ukraine to the accusations from certain electoral actors about their unit allegedly interfering in the process of establishing voting results. 

On April, 01, 2021, the SSU representatives stayed in the building hosting the DEC facilities, possibly called to attend to the security situation. With regard to the public statements of election participants, OPORA publicly requests from the SSU to publish all the timeline of the stay of their representatives in the building hosting the DEC, any authorizing documents for such presence, publish the respective video materials and respond to the accusations from the candidate. In our view, the government’s functions in ensuring the legality of elections in crisis shall meet the highest possible transparency and openness standards, especially during the election process that shall be as open and publicized as possible. OPORA highlights the fact that there is a current public confirmation of the fact of SSU officers staying in the building hosting the DEC premises, rather than on the premises.

OPORA suggests the MIA of Ukraine and the National Police of Ukraine intensify the work of the emergency response center on the monitoring of the legality of elections in constituency No 87, and to ensure the daily notification on the preliminary line of enquiry on the high-profile violations of the law and the measures taken by the police. Thereat, OPORA urges the electoral actors and the media to avoid any one-sided conclusions and facilitate the establishment of the circumstances of all cases, to avoid sharing the disinformation and messages that are not conducive to the establishment of the actual sequence of events. 

The Central Election Commission shall account for court decisions and legal requirements and take full advantage of their control powers and contribute to the resolution of the problem of establishing voting results and election returns.  

On this stage of the Ukrainian electoral system, of IT systems, and of publicity of their processes, it appears promising to reproduce the actual course of the process and establish the persons liable for the disappearance of election documentation. 

Assessment of decisions of the DEC and courts on the process of establishing voting results in constituency No 87 

Decision-making on the re-count at polling stations

When establishing voting results, the DEC made a decision to hold a re-count at 20 polling stations, for formal reasons, such as the lack of a stamp and signatures on packages with vote count, lacking names of election commission members, a lacking number of a territorial constituency. The DEC decisions were contested by one candidate in the court.

By April, 4, 2021, Ivano-Frankivsk district administrative court has considered cases upon the lawsuits from Oleksandr Shevchenko (b. 1971), a candidate for people’s deputies in a single-member constituency No 87. 

Moreover, OPORA has been aware of the court case No 300/1288/21 considered by courts, upon the lawsuit from Vasyl Virastiuk to the DEC No 87 on the DEC’s obligation to administer the re-count at a polling station No 260532. The first instance court satisfied the claim. The DEC was obliged to administer the re-count at the polling station. However, the Eighth Administrative Court of Appeals (Lviv) repealed the decision, and the suit was denied. Thus, the DEC did not administer any re-count at the polling station No 260532.

By afternoon of April, 04, the courts have considered 8 cases upon the lawsuits from Oleksandr Shevchenko: on 6 cases (No 300/1402/21, 300/1405/21, 300/1406/21, 300/1394/21, 300/1399/21, 300/1393/21) the candidate was totally denied in satisfying the claims, the DEC’s actions have been declared legitimate; on 2 cases (No 300/1395/21, 300/1401/21) the court dropped the proceedings because the candidate abandoned the claims. In view of the made decisions, on 6 cases, we may trace the position that the courts supported the DEC’s approach on the need to formally follow the law and declare legal the DEC’s actions on appointing the re-count at the PECs where the security bags with the protocols have been unsealed; where there are no signatures or names of all PEC members on the security bags; when a mechanical damage to the bag with the election documents has been detected; where the security bags have no stamps and names with initials of PEC members (the bag only had the signatures on). By April, 04, the Ivano-Frankivsk district administrative court scheduled the hearing in 6 more cases with similar particulars of claims from the candidate Oleksandr Shevchenko against the DEC No 87; 2 more cases were scheduled for April, 5.

According to the candidate’s representatives, they plan to appeal against the first instance courts’ decisions. 

At the moment of considering the claims, the re-counts have been conducted at all polling stations. Thus, in case of the first instance court or the court of appeals takes the decision on the illegitimacy of the re-count, there may be an issue with the feasibility to practically implement the court’s decision.

The identified inconsistencies in the number of ballot papers between the DEC re-count results and the PEC protocols

During the re-count at DEC of the territorial constituency No 87, 6 cases have been identified when the ballot papers were lacking in the bags with the ballots supporting Oleksandr Shevchenko (b. 1971). Specifically, the cases have been registered at the following polling stations: No 261029 (299 votes upon the re-count, 402 – in the PEC protocol); No 260028 (79 votes upon the re-count, 172 – in the protocol); No 260025 (105 votes upon the re-count, 150 – in the protocol); No 260536 (315 votes upon the re-count, 431 – in the protocol); No 260019 (97 votes upon the re-count, 144 – in the protocol); No 261030 (277 votes upon the re-count, 377 – in the protocol). Of the 6 polling stations undergoing the re-count and facing issues with the number of ballot papers in the bags supporting Oleksandr Shevchenko, the voting was declared invalid at 3 polling stations (No 260028, 260025, 261030).

In all discrepant cases when the number of ballots upon the DEC-administered re-count did not coincide with the initial results, the police was called. It is notable that the police was called both upon establishing the discrepancies during the re-count for the candidate, and after the statements of PEC members arriving to the re-count and claiming the available sealed bags with the election documents have been differently re-sealed by the commission and allegedly included signs of re-sealing (in all cases, they referred to the bags with ballots supporting Oleksandr Shevchenko).

At the same time, it shall be stated that in cases with PECs No 260028 No 261029, the district election commission applied different approaches as to the stage when the police needed to be engaged: before opening the contested bags with election documents, or upon establishing the circumstances of discrepant number of ballot papers after opening the bags. Thus, in case with PEC No 260028 when they stated the packaging discrepancy of the ballots immediately after examining all the security bags, the DEC called the police only upon opening the contested bag and upon establishing the discrepant number of the ballots. We believe that it shall be a good practice to have the police officers present and properly document the investigative actions during the examination and opening of bags with election documents claimed to have been re-sealed (compromised). 

PEC members, the same as any citizens witnessing the event allegedly implying the signs of criminal offense, shall report it to the National Police, whereas it is unacceptable to allow any pressure on individuals to prevent them from reporting to the police.

Declaring invalid the voting results at the polling stations

OPORA registered 5 cases of declaring invalid the re-count results (polling stations 260028, 260025, 261030, 261027, 260515).

In general, we may outline the 3 following grounds for declaring the vote invalid: 1) unjustified inclusion of voters to the voting rolls at the place of stay that led to the illegal issuance of ballots in the amount above 5% of the turnout (polling stations No 261030, 260025, village of Maniava); 2) missing PEC stamp on the checklists (thus, at the polling station No 261027, the stamps on the checklists were missing on 4 fixed and 1 mobile ballot boxes, a stamp on 2 checklists was posted in 1 mobile box; 3) unjustified inclusion of voters on the voter lists and missing checklists from the ballot boxes in the bags with election documents (polling station No 260028).

The DEC listed the following shortcomings in furnishing voter lists enabling the vote at the place of stay: applications from voters were printed rather than hand-written; missing medical certificates from a health care facility on the health condition; the extract could be missing some mandatory details such as the commission stamp and the date of drafting; the blank fields from the voter list extract were not crossed, the missing register book of voter applications to be included into the extract (polling stations No 261030, 260025, 260028, 260515); 

In this respect, OPORA hereby emphasizes that the DEC decisions were based on formal compliance with the law on election of people’s deputies and may be contested by electoral actors in courts. The judicial practice has multiple times applied the approach when courts referred to the need to ensure the exercise of voting rights of citizens as contrasted to the practice of excessive formalism guiding the election commissions. In addition, it shall be specified in the court on how many persons were included into the extract from the voter list with no commission’s decision, in case they had a mark on permanent disability to move unassisted, and who did not require to submit the personally hand-written applications and medical reference certificates.

A candidate Oleksandr Shevchenko contested in the court the actions and decisions of the DEC on the conduct of the re-count and on declaring the voting invalid at 5 polling stations following the re-count returns. However, their judicial consideration shall start after April, 5.

Furthermore, the candidate might contest in the CEC the cases of DEC 87, and the CEC decision on establishing voting results in a single-member constituency No 87. Thus, court hearings may be in for continuation in the Sixth Administrative Court of Appeals and the Supreme Court as the appellate courts on the decision on the CEC inaction in the course of establishing interim election returns in a single-member constituency No 87.

Recommendations

To the Security Service of Ukraine

  • To publish all available information and the documents on the circumstances of having their unit present in the building hosting the DEC No 87.
  • To provide a public response to accusations from certain electoral actors on their interference into the process of establishing voting results.

To the National Police of Ukraine

  • On the basis of the special emergency response center, to daily inform the mass media and the public on preliminary findings and the measures taken to investigate the offence cases at the interim elections of a people’s deputy within a single-member constituency No 87.
  • To make public all the available information on ensuring the security in the DEC premises holding election documentation.

To the Central Election Commission

  • To exercise their control powers under the law, and to ensure prompt response to the issues in the process of establishing voting results and election returns. 

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