Ukraine has the framework exercising parliamentary control over the observance of human rights, which is the Ukrainian Parliament Commissioner for Human Rights. An “ombudsman” in accordance with the European terminology. They cooperate with him on the issues of observing the rights of persons at places of confinement, discrimination, protection of the rights of children, women, etc. However, the ombudsman does not have a structure that would deal with the electoral rights of citizens for now.
Therefore, OPORA Civic Network, which has grown from the first Maidan, and has many years of monitoring the observance of electoral rights, has decided to assist the ombudsman in this matter. In fact, we are communicating about it in detail with Yurii Chumak, a well-known human rights defender, a public ombudsman for the protection of electoral rights in Kharkiv Oblast.
Initiative to establish a Network of Electoral Ombudsmen
Last year, a Memorandum of Cooperation between OPORA and the Ukrainian Parliament Commissioner for Human Rights was signed, which in particular provided for interaction between regional public ombudsmen and officers of the Secretariat of the Commissioner for Human Rights in the matters related to the protection of electoral rights.
A year before the nationwide election, supported by the EU, the Electoral Reform to Strengthen the Power of Agents of Change and Support Public Dialogue Project was launched, which was implemented by OPORA Civic Network together with the Ukrainian Catholic University and the European Centre for Electoral Support. In fact, it gave rise to the establishment of the Network of Public Ombudsmen for the Protection of Electoral Rights, which operates in all regions of Ukraine.
Impartial, competent, motivated people act as communicators between voters, candidates, media and law enforcement agencies.
I am a human rights defender, so for me the concepts of “human rights”, “democracy”, “freedom”, “rule of law” are not just beautiful words, but values, certain road signs in my life. That is why I have been involved in many civic election observation campaigns multiple times. After all, I am convinced that it is the ensuring of holding fair elections in accordance with the legislation is the main basis for building an effective democracy in Ukraine.
When elections are held, every time there are situations involving different types of violations, falsifications, manipulations and attempts to distort voting results. But cases rarely reach courts, and if they do, as a rule, they end up with nothing. In the best case scenario, they end up with punishment of some minor executors.
There are few cases in Ukraine that would say that the organizers of these unlawful actions were brought to justice. And impunity leads to repeated violations.
The OPORA activists came to the conclusion that everything possible should be done to ensure that the punishment for violating electoral rights was still there. If a person does not have a real voting – what democracy are we talking about at all?
The OPORA professional team, which is politically unbiased and equidistant from any candidates, is the non-governmental organizations with which I am honoured to work together in order to ensure the implementation of electoral rights of citizens.
Electoral ombudsmanship in detail
An electoral ombudsman must keep an eye on the pulse in courts, interact with law enforcement agencies, journalists, civic activists and, in the event of gross violations of electoral law, to facilitate the bringing of a case to a legal court decision.
We are trying to cooperate with all civic activists, journalists, and we encourage citizens to report violations that they see. By collecting information from various sources, as an electoral ombudsman, I have the opportunity to be where the situation requires me to be.
We approach law enforcement agencies not to let them “relax”. In Ukraine, there is an erroneous “tradition” that under any authority the law enforcement officers during the elections are more rigorous about offenders from the opposition, and often do not see violations committed by pro-government candidates. Our task is to “push” the police officers and officers of other law enforcement agencies to ensure they pay the same attention to all violations of the electoral law. We must constantly “bother” the relevant agencies so that they fulfill their duties in accordance with the law. Yurii Chumak
We will also attend court hearings. Since it often happens that: the elections are over, and everyone has forgotten that somewhere there are court hearings on election violations, and in what mode they are conducted. Whether all the parties are heard or whether witnesses’ testimony is taken into account … Thus, the ombudsman has no possibility to influence the judge’s opinion, and we are not just able but we have to ensure that court hearings are held openly and publicly, with the involvement of the public.
In addition, the tasks of ombudsmen include the analysis of law enforcement practices during elections, including judicial. On the basis of this analysis, OPORA Civic Network approached the Ukrainian Parliament Commissioner for Human Rights and other authorities in order to change even the regulatory framework where necessary.
Interaction within the Network of Ombudsmen
One person cannot process such a large array of work aimed at preventing election violations of citizens’ rights. Therefore, not only the electoral ombudsman but also the civic observation coordinator and long-term observers work in each area at OPORA. Since the official launch of the election campaign, 204 observers have been involved throughout the country. Legal advice is provided by legal advisers. And on the day of the presidential election on 31 March 2019, and in case of the second round, they will be joined by more than 1,500 official observers who will monitor the progress of voting and counting of votes directly at the polling stations. So, a whole team of active and responsible people is involved.
The OPORA jurists distinguish the following 3 types of violations of electoral rights:
- Violations not subject to liability. It means that the Law “On the Election of the President of Ukraine” provides for a certain norm, however, sanctions, in case of detection of its non-compliance, are not envisaged. For example, in terms of the need to fill in the ballot directly in the secret voting booth (room).
- Administrative offenses.A whole number of articles of the Code of Ukraine on Administrative Offenses (212-7 to 212-21) provide for liability for different types of violations that do not significantly affect the results of expression of will and do not pose a significant social hazard. Consequently, the liability for them is insignificant, in particular fines of UAH 85 or more.
- Criminal offenses (crimes). Articles 157, 158, 158-1, 158-2, 159, 159-1 and 160 of the Criminal Code of Ukraine have been written by legislators for those persons who are trying to commit falsifications, vote-buying, etc. For these offenses a much more severe responsibility is envisaged, ranging from restriction of liberty and community service to imprisonment for up to 7 years.
By the way, citizens must know that violation of the secrecy of voting, “accepting offer” and obtaining unlawful advantage on condition of voting for a certain candidate are also criminal offenses. And those in power must remember that euphemism “administrative resource”, which is so often used in the media, has its clear qualification in the Criminal Code and is called “Preventing the free exercise by a citizen of his voting right” (Article 157 of the CCU).
A vivid example of violations during elections
Violations recorded by OPORA watchers, for example, in the presidential elections in 2014, differed significantly from practices recorded during the 2004 and 2010 election races. If earlier the abuse of administrative resource and vote-buying were recorded as the most systemic violations, then in 2014 it was non-compliance with the rules of election campaigning. The latter had no decisive influence on the results of the voting.
Frequently violations occurred due to insufficient qualification of election commission members themselves. For example, in Chuhuiv, Kharkiv Oblast, during the presidential election in 2014, international watchers from ENEMO organization were refused entry to one of the polling stations on election day. Members of the precinct election commission decided that since the watchers arrived after the PEC’s morning meeting was held, they could not be allowed to the polling station. And it would be funny if it was not so sad, since obstructing the activities of official watchers can be qualified as a criminal offense.
What violations are recorded now
At this year’s elections, the most frequently recorded violations are violations associated with election campaigning. OPORA watchers repeatedly turned to law enforcement officers in Kharkiv Oblast due to detected billboards of candidates without initial data, campaigning at unforeseen places. There was a case – in Pervomaisk Raion State Administration the newspapers were found with agitation leaflet in favour of one of the presidential candidates, which is a direct violation of the Law (it is prohibited to place agitation materials and political advertising on houses and on public authorities’ premises). But there are also reports of possible bribing of voters – in Kharkiv Oblast, the police have already initiated 3 criminal proceedings according to such information.
In general, in Kharkiv Oblast, during this presidential campaign (as of February), out of 88 reports of the violation of electoral law received by the National Police, 59 were received from OPORA activists.
What challenges does a public ombudsman deals with?
I consider a number of problematic issues to be important. First, it is a certain legal nihilism of a large part of the population. During meetings with future voters, awareness-raising speeches in the media it is necessary to “break” existing mythologems, which incite some citizens to neglect their right to express their will: so to say, “all politicians are the same”, “nothing depends on my voice” and “they have decided everything a long time ago”.
OPORA Civic Network has also signed a memorandum of cooperation with the Coordination Centre for Legal Aid Provision, and together with the employees of such centres we organize legal awareness raising events for citizens at the local level. The same as in the interaction with other public structures and non-governmental organizations.
As the second challenge I would call the difficulties that arise when responding to violations of electoral law detected by us. Most of such offenses fall within the competence of the National Police. And the police, whose powers and tasks are enormous, are not always well-informed in the issues of electoral violations classification. They do not always know on what nuances they should focus in order to properly gather the necessary evidence. Because of this, cases of administrative and criminal offenses often fail to reach the courts or “fall apart” there.
Therefore, OPORA, in cooperation with the International Foundation for Election Systems (IFES), has developed training modules for police officers and investigators on effective responses to electoral violations. By the way, I was involved in such trainings in Zaporizhzhia, Dnipro, Poltava and Kharkiv. It should be noted that police officers confessed to us that certain problematic issues were a revelation to them. Let’s hope that from now on law enforcement officers “with open eyes” will be more productive in stopping electoral administrative offenses and crimes and will take all necessary steps to bring the perpetrators to justice.
It would be great if representatives of the prosecutor’s office and other law enforcement agencies also demonstrate their desire to work actively. And remove certain politicization from this process, which hinders effective and impartial work to ensure legitimate elections!
The third challenge is the question of choosing the priority during the election. Many people, unfortunately, believe that, in order for their “favourite” candidate to win, any methods that sometimes even border on the Law can be applied. But for me and people who espouse human rights values, the main thing is not who will be elected, but HOW he or she will be elected.
If a candidate takes office using outright populism and/or vote-buying, administrative resource, deception and manipulation, shameless falsifications, he or she will run the country in the same way. Pressing and deceiving, stealing and tricking to compensate for bribing costs.
I believe that the candidate’s honesty and responsibility, conducting a campaign in accordance with established election procedures, strict observance of the Law should serve as a guideline.
And the role of civil society, as for me, is not to divide and cry out “everyone for one’s one candidate”, but to unite and make every effort to ensure that the electoral process is legal, honest and transparent.
By Liubov Yeremicheva
Source – Rubryka