Strasbourg, le 23 May 2002

CG/Bur (8) 164

Report on local and regional elections in Ukraine held on 31 March 2002

Rapporteur: Christopher NEWBURY (United Kingdom, L)

Document adopted by the Bureau of the Congress on 7 May 2002

1. Introduction

At its meeting on 4 February 2002 in Tampere, Finland, the Bureau expressed its interest in sending a Congress delegation to observe local and regional elections in Ukraine to be held on 31 March 2002. This interest was prompted by the Congress reports1 prepared within the framework of monitoring the situation of local and regional democracy in Ukraine, and Recommendation 102 (2001) and Resolution 123 (2001) adopted by the Standing Committee of the Congress on their basis on November 2001, which reflected “serious concern by the worsening of democracy, rule of law at local and regional level in Ukraine”, and reiterated its commitment “to continue to closely monitor the problematic relationship between locally elected representatives and peripheral State executive powers, and, where necessary, to organise fact finding missions as well as prepare detailed expert reports in this respect”. It further stated its determination “to follow the implementation of the recommendations it addressed to the Ukrainian authorities on the basis of its second monitoring report on the situation of local and regional democracy in Ukraine”.

Further to the Congress Bureau’s decision, a letter dated 13 February 2002 by the Chief Executive of the Congress, Mr Rinaldo LOCATELLI, was forwarded to the Permanent Representative of Ukraine to the Council of Europe, Mrs Suzanna STANIK, requesting an official invitation from the competent authorities of Ukraine.

Following the request, an official invitation was received from the Ministry of Foreign Affairs of Ukraine dated 27 February 2002 (letter from the Secretary of State for European Integration of the Ministry of Foreign Affairs of Ukraine, Mr Olexandr CHALYI).

On accepting the invitation, the Bureau of the Congress approved, at its meeting on 20 March 2002 in Strasbourg, a Congress observation mission for local and regional elections in Ukraine.

2. The Composition of the delegation

The list of Congress delegation approved by the Bureau at its meeting on 20 March 2002 in Strasbourg included the following members:

It turned out, however, that Ms Vesselina LUBENOVA from Bulgaria was unable to join the delegation due to some unexpected engagements at home.

The delegation was accompanied by the Congress Secretariat, Mr Mats LINDBERG and Mr Ivan VOLDIN.

3. Programme of the visit

The Foundation for Local Self-Government in Ukraine arranged the programme of the delegation, as well as hotel accommodation and interpretation in Kiev, while logistics, transport, and interpretation services in the regions were provided by an Inter-Agency Group (IAG) and its regional branches in the places of deployment. A Presidential Decree “in order to facilitate activities of official observers from foreign countries and international organisations” had set up the IAG. Its work proved to be very efficient, with no problems from the very arrival of the observation teams in the regions until the end of their programmes there.

The programme included a number of meetings and discussions with the representatives of principal political parties contesting local and regional elections, candidates for the positions of mayor and councillor, with Electoral Commissions, with local and regional administrative officials; and with the representatives of the media and local government associations. Similar meetings took place in the four regions where observation teams were deployed (see the Programme of the visit):

On the eve of the Election Day, the Congress delegation divided into four teams of two and went to four regions:

Kyiv
Mr. Christopher NEWBURY
Dr Giuseppe LA SCALA

Poltava
Mrs. Ayse Bahar CEBI
Mr. Mats LINBERG

Odessa
Mr. Vitaly PASHENTSEV
Mr. Ivan VOLODIN

Zhitomir
Mr. Constantinos TATSIS
Ms Theodora NASOU

These meetings provided useful and informative and helped the delegation gain as full a picture of the electoral campaign as possible.

4. Summary of conclusions

Local and regional elections in Ukraine were conducted against the background of the controversial development of local self-government over recent years. The election campaign, however, showed improvements on the previous election. Its major feature was the struggle between individual candidates rather than between the programmes of political parties (blocs), which was reflected in the coverage of the media, being far from neutral.

On election day, the voting took place in a generally peaceful and orderly manner. The complexity of the elections did contribute to some problems in polling stations. The inadequate numbers of polling booths provided led to congestion inside polling stations and open voting.

Nevertheless, election officials, with few exceptions, worked very competently.

The polling station commissions made great efforts to ensure a smooth election process.

5. The legal framework

Apart from the Constitution of Ukraine, the main legislative texts on local electoral processes and local and regional bodies are:

The Local Election Law was amended on 7 February 2002 by the Parliament of Ukraine, which took into consideration presidential comments on it adopted on 17 January, as well as the Decree of the President of Ukraine on Provisions for Implementation of Citizen Rights, Democratic Society Principles, Openness and Transparency in the Process of Preparing for, and Conducting the Election of 2002, promulgated on 30 October 2001.

The most important amendments included provisions aimed at securing transparency of elections and preventing or eliminating a number of difficulties that emerged in previous elections, in particular:

The law, nevertheless, has still a number of shortcomings. These include, inter alia, lack of provision for domestic observers, a too general definition on the military servicemen’s suffrage right, some discrepancies with the Election Law to the Parliament.

The Law on Local Self-Government is also subject to a serious modification: there is a new draft law dated 3 April that passed a first reading in the previous Verkhovna Rada.

One of the main criticisms of the old law and Constitution is that regions and districts (rayons) have no administrative body of their own and that local departments of the central government take its place.2 Heads of local (oblast and rayon) state administrations are appointed to office and dismissed from office by the President of Ukraine upon submission of the Cabinet of Ministers of Ukraine (Article 118). But an oblast or district council may express no confidence in the head of the respective local state administration, on which ground the President of Ukraine adopts a decision and provides a substantiated reply. If two-thirds of the members of the respective council express no confidence in the head of a district or oblast state administration, the President adopts a decision on the resignation of the head of the local state administration.

Furthermore, the existing Law defines the rayon and oblast councils as local self-government bodies representing the common interests of territorial communities, settlements and cities. On the other hand, local communities composing oblast and rayons are not recognised by the Constitution and the relevant laws as distinct communities with their own legal personality. This implies that the country “is deprived of a legally recognised, democratic system of regional self-government”.3 In this context, it would not be much of an over-exaggeration to say that the regional level of government exists only in the Crimea.

The new draft law, which passed a first reading in the Verkhovna Rada, “is in practice a new piece of legislation and does not consist merely of amendments of the existing law, the improvements that it implies in the present situation tie in with the concept of local authorities (“territorial communities”) which result from the constitution”. And though it was assessed, broadly, as a clear intention to bring the local government system more closely into line with European standards, the experts took the view that the text needed certain amendments in a number of regards.4

The Congress delegation was informed that a new edition of the draft law had already been prepared and approved by the Cabinet of Ministers of Ukraine, and that it would be submitted in the near future to the new Rada.

It should be pointed out that legal provisions concerning local self government are not applicable to the Cities of Kyiv and Sevastopol. Special laws should determine the exercise of local self-government in these cities. At present, City and District Councils in these two cities do not have administrations of their own, and their heads, the Mayors, are appointed by the President of Ukraine. Since no law has so far been adopted on Sevastopol, an election for Mayor was not possible there.

Local and regional elections took place on the same day as elections to the Verkhovn Rada, which were conducted in accordance with the Law on Election of People’s Deputies of Ukraine. This was adopted by the Parliament and signed by President KUCHMA on 18 October 2001 and further amended on 4 February 2002. “The Law marks substantial improvements compared to previous legislation and provides extensive safeguards to meet Ukraine’s commitments on democratic elections”.5

Most of the legal problems observed were found to be connected with this law’s implementation rather than with its content.

Since local and regional elections took place on the same day and were conducted by the same election commissions, their administration was simultaneously affected by the Election Law to the Rada. That led sometimes to legal collisions due to existing incompatibilities between the two legislative texts.

Also of great relevance to local and regional elections are:

6. The election system

The structure of local self-government in Ukraine is fairly complex. The following bodies were elected, and the elections were held at the same time and in the same polling stations as the Parliamentary elections:

Simultaneously but separately, there were elections for the Heads of these entities, except in the districts (rayons) and regions (oblast), whose heads are elected by the councils from among their members.

The candidates were elected on the basis of the majoritarian system, which means in all cases that the candidate(s) receiving the highest number of votes are elected.

Given that there were two ballot papers for the parliamentary elections, the total number of ballots for voters in local and regional elections was five or six.

7. The electoral campaign

I. GENERAL

Notwithstanding certain specific incidents of violence that occurred on the eve of the election, the election campaign was in the main conducted peacefully. In Odessa, which became notorious for a very tense and troubled campaign four years ago, the same two candidates for the position of Mayor made an effort to keep their election campaigns within reasonable limits.

A major feature of the election campaign was that it was overshadowed by the parliamentary election, with national issues getting the upper hand over local ones throughout the country. The demarcation line between local and national elections seemed to be blurred to the extent that the electorate was very confused.

Against the background of a deluge of information on the political parties/blocs contesting the parliamentary election, information about candidates for local councils was almost overlooked. Random polls in the streets in Kiev and Odessa revealed a remarkable situation: voters, as a rule, were better informed about the national election then about the local elections. There were very few who could give us the name of one candidate for the position of mayor, other than a serving mayor, even with a dozen candidates standing.

II. MEDIA

Television was the most influential means of communication during the election campaign, in both local and national elections. According to the report circulated by the European Institute for the Media, there was some improvement in the situation compared to previous elections: the media “provided voters a range and volume of information that could have assisted them in making their political choices”.6 The problem was, however, as the report points out, that information provided by the media was far from being impartial and balanced. The print media tended to be especially partisan.

At the same time, the local press paid more attention to the local elections, carrying numerous articles which very often showed a marked bias in favour of the candidates whose activities were reported.

III. COMPLAINTS

The Congress delegation received several complaints about inequality of access to the media, about its bias in covering the election campaigns; and about the use of administrative resources by serving local and regional administrative officials. Similar allegations were made by the candidates for mayoral positions in Kyiv and Odessa, Mr KOSSAKIVSKY and Mr GURVITS. The former withdrew from the race on the eve of the election, accusing the city officials of an “information blockade” against him. The latter made a statement to the press following the election which he had lost to the serving mayor, Mr BEDOLAN.

There were also complaints about a lack of financial resources which meant that independent candidates and representatives of small parties and blocs had been unable to afford political advertisements in the press or other media. But there were some reports of candidates abusing the press.

That was the case with a candidate to the Odessa Council, the editor-in-chief of a daily newspaper, who used the paper to promote her own election campaign. She was disqualified as a candidate following a court decision.

The delegation’s observation teams in the regions did find some confusion about the appointment of the commissions, which resulted in a number of involuntary removals of members after they had begun work and affecting negatively the commissions’ work on election day. This observation was borne out by the OSCE/ODIHR report, which pointed out that following resignations or removals of members of the District and Polling Station Commissions, some 50 per cent of them had the minimum composition of eight persons.7

8. Polling day

On Election Day, the Congress delegation visited 54 polling stations in the four regions in which we had observation teams: – Odessa, Ilyichivsk, Poltava, Mirgorod, Zhitomir, Kyiv and a number of smaller settlements around the capital.

The day of polling passed without major incidents and was generally considered by the delegation to be successful.

One of the key positive factors in this was seen to be the widespread presence of domestic observers from different political parties/ blocs and NGOs. Many of them were very well trained and possessed well-elaborated questionnaires giving a good bearing on the voting and counting procedures and their compliance with the Electoral Law. Unfortunately, the observers’ knowledge of the local Election Law was much inferior.

Domestic observers reported no serious irregularities during Election Day. Polling station commissions, with few exceptions, worked competently. Nevertheless, the commissions faced serious difficulties in ensuring a smooth voting process at some stages of the polling, due to extreme congestion inside polling stations and inadequate numbers of polling booths. This led to many voters choosing to mark their ballots in the open, instead of waiting in line for a polling booth. This compromised the secrecy of the vote. Some voters complained about having approached their polling stations several times during Election Day, but having been overwhelmed by the long queues and the congestion inside the polling stations, they left.

In addition, the observation teams noted that certain practices varied from polling station to polling station. These were:
- At most polling stations the ballot papers for the local and regional elections were not stamped whereas they were stamped at others. There were no serial numbers on the ballot papers. There seemed to be no provisions for these matters in the law on local elections, but security would probably profit from introducing mandatory stamping of ballot papers and introducing serial numbers on them.
- At many polling stations all ballots papers (for the different elections, national, regional, local) were put in the same ballot box, whereas at some they were put into separate boxes according to the election in question. Apparently there are no provisions in the law, but coherence would be desirable for avoiding confusion and using separate boxes would presumably significantly facilitate the vote count.
- Some polling stations seemed to be in difficulty to define who among the military servicemen had the right to vote in local elections.
- According to the election law, representatives of the law-enforcement authorities should guard the ballots and hence an armed police officer was present at each poling station. However, he was often placed inside the polling station. While not a breach of the election law, this falls short of European standards.

9. Results of the election

The Congress is still awaiting the full results of the municipal and regional elections. The turn-out was above the average - almost 70 per cent. Here are some sample results.

In Kyiv the acting mayor, Mr Olexandr OMELCHINKO was re-elected, with his party “Unity” winning 65 out of 90 seats in the City Council. The next biggest faction with only 18 seats will be that of “Our Ukraine”. In Odessa, the serving mayor, Mr BODELAN, defeated the former mayor, Mr GURVITZ. In the Crimea, the former president was re-elected, even though he should have been removed from the ballot papers in compliance with a court decision on the eve of the elections.8

10. The day after the polling

The day after the polling, the Congress delegation met with the representatives of the three local government associations: Union of Cities of Ukraine, Foundation for Local Self-Government in Ukraine and Union of Leaders of Local and Regional Authorities of Ukraine. The delegation was informed that the organisations present were not directly involved in the electoral campaign though some of them had given their support to individual candidates on a personal basis. The associations’ role, as they saw it, was rather to facilitate the process of passing new legislation complying to the European Charter of Local Self-Government.

The organisations present differed as to the idea of holding local and regional elections on a different day. Some were in favour of this idea whereas the others argued that given the congestion could be there anyway, holding local elections on the same day with parliamentary elections could reduce chances for violations.

The delegation received a complaint from the former mayor of Vasilkiv about having being denied the right to register as a candidate to a mayoral position and to the Regional Council.

In the afternoon, a press conference was arranged at the Ukrainian Information Agency. It was attended by some 30 journalists and a number of TV representatives. The Head of the delegation, Ms Ayse Bahar CEBI made a statement to the press and then answered questions (see the Statement to the press).

11. International observation missions in Ukraine

I. THE COUNCIL OF EUROPE PARLIAMENTARY ASSEMBLY DELEGATION

The parliamentary elections were observed by a Council of Europe Parliamentary Assembly delegation, which chose to act separately of the Congress delegation. It had a joint press conference with the OSCE delegation.

II. OSCE/ODIHR MISSION

The Congress delegation had established contacts with the OSCE/ODIHR Election Observation Mission well in advance of the visit. These contacts were friendly and informative. The Congress delegation was invited to a briefing session that was organised by EOM in Kyiv on 29 March.

12. Conclusions and recommendations

The Congress observation mission passed without major problems. The delegation was able to observe freely the run-up to the election and the voting on polling day in the regions where observation teams were deployed.

Despite some cases of overcrowded polling stations and the inadequate numbers of polling booths that led many voters to mark their ballots in the open, voting generally took place in a calm and orderly manner. Election officials, with few exceptions, showed a high level of competence in their work.

Holding local and regional elections on the same day as parliamentary elections made all procedures very time-consuming. There were numerous reports of the difficulties many electors, especially those of advanced age, found in marking their ballot papers.

The delegation therefore recommends that the Ukraine’s competent authorities consider the possibility of holding local and regional elections separately from elections to the Parliament. The delegation believes the absence, in some local and regional election processes, of a procedure for stamping the ballot papers, is something that should be reconsidered. Extending the official stamping to all ballot papers and introducing serial numbers on them might give added security.

The delegation is of the opinion that elaboration of a clear legal provision defining who from groups such as military servicemen has the right to vote in local and regional elections is also worth considering.

The delegation regrets that due to the absence of law a mayor of Sevastopol could not be elected. At the same time, the delegation stresses that the absence of legal provisions for the election of Mayors of Kyiv and Sevastopol is not in conformity with the European Charter of Local Self-Government and is an issue which needs to be addressed.

One of the striking features of the electoral campaign (both to the national and local bodies and for the positions of mayors and heads of other administrative units) was the fact that it was dominated by a struggle between individuals, rather than between political programmes. This was clearly reflected in the media coverage of the campaigns, and in the complaints made by the representatives of political parties/blocs and local government associations. Some of the latter even went so far as to question the right of the former to nominate their candidates, in contradiction to the provisions of the legislation on local elections.

The delegation is convinced, on the contrary, that given the existing legislative deficit and a lack of confidence in democratic institutions, political parties have an important role to play in strengthening local democracy in Ukraine.

The delegation considers these local and regional elections to be an important contribution to local democracy in the Ukraine, while there are serious lessons to be learned from the experience.

It seems evident that the newly elected officials will need training in making policy choices, notably creating a community vision of future sustainable development. More consistent support from the Congress to these efforts could be critical for the success of local initiatives on this matter. In this context, professional training organisations, notably European Network of Training Organisations for Local and Regional Authorities (ENTO) has an important role to play, contributing to future assistance training programmes for local and regional authorities that could be run in collaboration with local professional institutions of Ukraine.

13. Appendix 1: Programme (English only)

Observation mission for local and regional elections in Ukraine

14. Appendix 2: Press release (French only)

For further information and complete appendix, please contact: [email protected]

 

1 CLRAE documents CG (8) 22 Part II, CG/INST (7) 21 and CG/INST (2)

2 See CLRAE Document CG/INST (8) 31 Expert Opinion on Ukraine’s Draft Law on Local Self-Government (3 April 2001) prepared by Mr Gerard MARCOU, Professor at the University of Paris 1, Pantheon-Sorbonne, and Mr Nicolas LEVRAT, Professor at the University of Geneva

3 CLRAE Document CG (8) 22 Part 11 prepared by Mr KIERES and Mr ROPPE, rapporteurs

4 See CLRAE Document CG/INST (8) 31

5 See OSCE/ODIHR Review of the Law on Elections of People’s Deputies. Ukraine. Election Observation 1. 26 November 2001, Warsaw (www.osce.org/documents/reports )

6 See the document of the European Institute for the Media. Preliminary report on Monitoring of Media Coverage during the Parliamentary Elections in Ukraine, March 2002. 1 April 2002

7 OSCE/ODIHR Election Observation Mission to Ukraine 2002. Interim Report No 1. 26 February – 11 March 2002 (www.osce.org/documents/reports )

8 This decision was overruled by the Supreme Court of Ukraine on 19 April 2002.