DECLARATION OF THE INTERNATIONAL OBSERVERS FROM THE COMMONWEALTH OF INDEPENDENT STATES ON THE RESULTS OF THEIR MONITORING OF THE PREPARATION AND IMPLEMENTATION OF THE RE-VOTE IN THE ELECTIONS FOR THE PRESIDENT OF UKRAINE 26 December 2004 On the invitation of the Ministry of Foreign Affairs of Ukraine on 8 December 2004, international observers from the Commonwealth of Independent States took part in monitoring of the preparation and implementation of the re-vote in the presidential elections of 26 December 2004. The socio-political environment after the second round of voting was characterized by the noticeable increase in tension in society and the doggish exacerbation of the political struggle between the two contending sides that took part in the presidential elections. The Central Election Commission, in their decrees „On the results of the elections for President of Ukraine of 21 November 2004 and the election of the President‟ and „On the proclamation of the results of the elections for the President of Ukraine‟, declared that the V. F. Yanukovich had been elected President of Ukraine, and published the text of their declaration on the results of the elections. The results of the re-vote incited an entirely negative reaction amongst the supporters of V. A. Yushchenko, who demanded that the results of the re-vote be annulled, called upon their supporters in the population to perform illegal actions, including even the usurpation by force of the government. From 21 November 2004 the city of Kiev saw large-scale protests, state institutions were blockaded, and there were calls for civil disobedience. Three days after the re-vote, V. A. Yushchenko, without the official proclamation of the Central Election Commission of Ukraine on the results of the vote, unlawfully declared himself President. Many declarations and assessments from the second round of voting, made by a series of foreign structures, in our opinion also had a destabilizing effect on the situation, and stimulated the opposition powers to illegal acts of force. All this complicated and aggravated yet further the socio-political situation in the country. The situation before the re-vote in Ukraine demanded the application of practical measures to achieve political accord, to provide social security and to protect human rights and civil freedoms. There were two „round table‟ sittings with the participation of international mediators which became a distinct positive factor in the process of reaching a compromise between the country‟s political forces. A working group was created for the regulation of the political crisis in the state, which helped lessen the opposition within Ukrainian society.
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The judicial chamber for civil affairs of the Supreme Court of Ukraine reached a decision which changed the decrees of the Central Election Commission of 24 November 2004 „On the results of the elections for President of Ukraine of 21 November 2004 and the election of the President‟ and „On the proclamation of the results of the elections for the President of Ukraine‟, which obliged the Central Election Commission to arrange a re-vote. The judicial chamber justified its decision by the fact that the Central Election Commission had permitted a series of violations of the laws „On the Central Election Commission‟ and „On the elections for the President of Ukraine‟. It was established that the Central Election Commission had investigated the protocols of the territorial election commissions in a non-collegial fashion, and did not look into the complaints about violations of the territorial election commissions, as regards the way they established the results of the vote, before they [the Central Commission] published the results of the re-vote. When the pronouncements of the Central Election Commission were made, the investigation into complaints relating to the electoral process had not been completed in the courts. The court found violations in the compilation of the electoral registers, the use of proxy voting, the education of electoral commissions, et cetera. A judgment was passed, saying that as a result of such violations it was impossible to ascertain trustworthily what had been the declaration of the will of the people in the re-vote of 21 November 2004. Meanwhile, it was noted that the re-vote had not changed the status of the candidates for President. The judicial chamber notified the Parliament, the President and the General Procurator about the violations revealed for the sake of the adoption of measures of reaction authorized by law. As a result of the existing situation the Parliament of Ukraine made a resolution on the early termination of authority of members of the Central Election Commission and on the appointment of new members of the Central Election Committee. Laws were passed „On the introduction of changes to the Constitution of Ukraine‟ and „On the particularities of the use of the Law “On the elections for the President of Ukraine” in the re-vote of 26 December 2004‟. The Mission of observers from the CIS believes that the decision of the Supreme Court of Ukraine, obliging the Central Election Commission to assign another re-vote in the elections for President, was not called for by the country‟s existing electoral legislation, but was an attempt to move up and away from the situation through legitimate means. At the same time the international observers of the Commonwealth of Independent States reaffirm their previous judgments and conclusions, stated in the Declaration on the results of the monitoring of the preparation and implementation of the re-vote in the elections for the President of Ukraine of 21 November 2004. The pre-election situation in Ukraine before the present vote was also characterized by an increased interest in the elections from the international community. The number of international observers accredited by the Central Election Commission more than doubled to over 12,000 people. There were 959 observers accredited from the Commonwealth of Independent States. The change to the electoral legislation of Ukraine demanded activating the work of the newly appointed Central Election Commission. The Commission approved a series of measures in relation to the formation of territorial electoral commissions, to the form of the television debates between the two candidates, to the registration of international monitors, to the number of electoral ballots and absentee ballots, to the form of electoral documentation and to various other issues. In an extremely short time the Central Electoral Commission managed to organize the formation of new electoral commissions, in accordance with
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the standards of the electoral legislation, to prepare numbered seals for closing the ballot-boxes, to employ thirteen levels of security for protecting the electoral and absentee ballots. The Central Election Commission also employed a system of governmental, electronic and telex links for the simultaneous announcement from the territorial commissions of the data on the results of the voting. In the amended legislation the right of official monitors to use their authority in electoral districts abroad was strengthened, and their obligations as monitors were clarified. The law „On the particularities of the use of the Law “On the elections for the President of Ukraine” in the re-vote of 26 December 2004‟ had a temporal nature: it loses its authority on the day after the accession to power of the new President of Ukraine. However it appears that some of the new introductions which played a positive role during the re-vote might be used in the future improvement of the electoral legislation of Ukraine. At the same time a series of its standards did not comply with the generally-adopted standards of international rights and the Constitution of Ukraine. In part, the practice of restricting the use of absentee ballots, according to the number of electoral ballots, which had to be prepared for the revote, became significantly more difficult, and in many cases made it practically impossible to realize the constitutional electoral rights of a significant number of Ukrainian citizens. The Constitutional Court amended, 15 hours before the election, the first part of article 6 of the Law for being unconstitutional. In our opinion, this article of the Law was discriminatory, in that it restricted the ability of those people who for health reasons could not attend a voting station to vote outside the premises of the designated station. However the Central Election Commission did not adopt appropriate measures for realizing the decision of the Constitutional Court. The decision was brought to the territorial and district electoral commissions very late, as a result of which many voters, who on the same grounds as invalids of the first group had the right to vote outside the designated voting stations, could not submit the necessary documents about their illness nor send the electoral commission their corresponding declarations in the time period required by the legislation. For this reason, in the opinions of experts, some 1½ -2 million Ukrainian citizens with restricted physical capacities were aggrieved in a legal sense and could not realize their constitutional electoral privilege. The renewal of the composition of the electoral commissions was carried out in accordance with the amended electoral legislation. It holds that the composition of the territorial and district election commissions must comprise equal numbers of representatives from each of the candidates for the post of President. During the creation of these territorial and district electoral committees there had to be an equal number of posts for chairman and secretary (with a possible deviation from equal numbers of no more than one chairman or secretary). Furthermore, the chairman and secretary had to be representatives of different candidates. The territorial electoral commissions were obliged to provide, in the time period stipulated by the legislation, two prepared copies of the electoral register for the re-vote in every ordinary electoral district, and the delivery of one of these copies to the district commissions for their immediate display for public review.
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The chairman and secretary of a district commission were granted the right to amend on voting day any technical inaccuracies on the electoral register, when signed off in certification by both chairman and secretary. In the electoral legislation a new system was stipulated for the delivery of absentee ballots to the voters, and their inclusion on the basis of this official recognition on the electoral register. At the same time, the renewed electoral legislation did not stipulate the mechanism for protecting the work of the electoral commissions in the event of their being boycotted by the representatives of one of the candidates, who made up part of the commission‟s structure. In the run-up to the vote numerous incidents were recorded of the representatives of candidate V. A. Yushchenko failing to fulfil their obligations as members of district and territorial electoral commissions. Thus, the secretary of territorial electoral commission no. 51 (the Donetsk province), for reasons that remain unclear, did not turn up to the commission‟s meeting on the distribution of ballots to the district commissions. For this same reason, for two days before the vote 150 district commissions in the Lugansk province could not operate, and the work of many commissions in the Donetsk and Ivano-Frankovsky provinces, and the cities of Sevastopol and Mariupol, and in other regions besides, was thwarted.
Pre-election campaigning took place, in the opinion of the monitors from the CIS, in an atmosphere of fierce competition between the two pretenders for Ukraine‟s highest office. The media, just as in the run-up to the second round of voting, approached the task of demonstrating the course of the campaigns of both candidates in a balanced way. However the forms and methods of the struggle for votes did not always, overall, proceed within ethical boundaries. The regular meetings between the candidates and the voters assisted a better general understanding of the existing political situation in the country, and a more cognizant election on voting day. However, there was often a palpable tension in the mass gatherings and protests that took place, and there were unrestrained declarations from certain representatives of the campaign staffs. A positive role in the preparation of the re-vote in the second round was played by the television debates of 20 December between the two candidates, which proceeded in the correct form. Their dialogue testified to their mutual interest in having honest and transparent elections, and also their hope that the results of the vote would help to reunify society. From 20 December 2004 the Mission of observers from the CIS conducted monitoring of the main news broadcasts of six Ukrainian television channels and the publications of a series of daily newspapers. In accordance with the electoral legislation, the media is obliged to cover the electoral process objectively, and not to give any preference to either of the candidates. The television channels „E‟, „Kiev‟, „Channel 5‟ and „UT-1‟ blatantly violated this demand: in their news broadcasts somewhere between 60 and 90 per cent of the time was devoted to the electoral campaign of V. A. Yushchenko. These channels actively propagandized a positive portrayal of him, often criticizing the acting government and negatively characterizing the electoral campaign of candidate V. F. Yanukovich.
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Monitoring of the preparation and implementation of the vote, and the counting of votes was conducted in 225 electoral regions of Ukraine by international observers from the member-states of the CIS, from the Cross-Parliamentary Assembly and the central election commissions of the nations of the CIS, as well as from the Russia-Belarus Parliamentary Assembly, and the Executive Committee of the Commonwealth. We were granted the necessary legal, organizational and technical means for monitoring the presidential elections. We adhered to the principles of non-interference in the electoral process and of political neutrality, as well as impartiality and the refusal to consider any preferences of either candidate for the post of President. Our observers formed their relationships with the participants in the electoral process on a foundation of mutual respect and understanding. In our work we paid chief attention to the gathering and analysis of factual material, respecting throughout this process the electoral legislation of Ukraine, and the stipulations of the relevant documents of the CIS in relation to the monitoring of presidential and parliamentary elections in the states of the Commonwealth. On the day of the re-vote we visited 5012 electoral districts, including 6 abroad. We were able to be present for their opening, to observe the processes of voting, of closing the districts, and of counting the votes, and to observe the commissions‟ adherence to the protocols of announcing results. In the process of monitoring we worked constructively together with the representatives of other international organizations and local monitors, with the Central Election Commission, and with the territorial and district electoral commissions. Particular attention was paid to meetings with the leaders of the different campaign staffs. Unfortunately, despite several interactions, we did not achieve a meeting with the leader of the Staff of V. A. Yushchenko. As a result, the Mission of the CIS applied to this Staff with a request to present information it had in its possession on the infringements suffered by members of the staffs of candidate V. F. Yanukovich – but did not receive the requested documentation. The Mission of observers from the CIS notes the increase in the number of violations on the day of the vote, in comparison to the previous vote. Some of these were of a systemic nature. In electoral district no. 215 of region 83 (the Primorsky region of the Zaporozhsky province) an incident was orchestrated with the use of a firearm. In some regions incidents were noted of interference in the work of the electoral commissions and in the organization of the voting process by local and foreign monitors (district no. 15 of region 224 – the city of Sevastopol; 5 districts of region 186 – the city of Kherson; district no. 6 of region 172 – the city of Khar‟kov). A member of the commission in electoral district no. 2 of region 182 (the city of Kherson) – a representative of V. F. Yanukovich – was withdrawn for refusing to sign his name on the electoral ballots that had been issued. Various districts did not open punctually (district no. 9 of region 130 – the city of Odessa). Some district electoral commissions operated without their full compliment of members as a result of a series of members refusing to take part in their work (region 61 – the city of Donetsk). In the western province of Ukraine, as a result of threats of physical violence, many members of the electoral commissions – representatives of candidate V. F. Yanukovich – did not participate in their
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work. The chairman of district electoral commission no. 47 (the village of Zhuzhulyana in the L‟vov province) suffered physical pressure and was forcibly removed from the district. District electoral commission no. 11 of region 46 (the city of Artemovsk in the Donetsk province) consisted of six representatives of candidate V. F. Yanukovich and four of candidate V. A. Yushchenko. In addressing the issue of the voting of ailing citizens at home, various medical institutions refused to submit the necessary documents about their illness (district no. 66 of region 178 – the city of Bogodukhov in the Khar‟kov province). In electoral district no. 1 of region 60 of the city of Simferopol voting was halted at 17:40 as a result of a lack of around 900 ballot-papers. In a series of places the voting stations did not comply with the standards of the electoral legislation (district no. 4 of region 166 – the city of Ternopol, and in region 189 – the city of Kherson). In accordance with the amended legislation the electoral registers for the re-vote were compiled on the basis of the registers used for the vote of 31 October 2004, in which mass shortcomings and breaches had been recorded by all observers. They had not been improved in a number of places in the course of the vote of 26 December (district no. 7 of region 117 – the city of L‟vov, districts 1, 13, 15, and 51 of region 222 – the city of Kiev, and in region 189 – the Kotovsky region). As in the previous vote, we observed the use of so-called „exit-polls‟. Our evaluation remains the same: such polls turn into an instrument of influence on the consciousness of the voters for the benefit of one or another candidate and they ought to be viewed critically. The existence on voting day in various district electoral commissions of symbols, which testified allegiance to one or another candidate, as well as, in a series of places, placards with campaign slogans, we judge overall to be campaigning on the day of the vote, which is forbidden in the electoral legislation.
Preliminary assessments in relation to the presidential elections conducted in Ukraine we, the international observers from the CIS, make on the basis of official documents and only our own monitoring, as well as on the analysis of factual material and information, gathered by us during our visits to electoral commissions and districts. We note that these elections for the President of Ukraine showed a strong concern among the citizens of the country for their successful completion. The Mission of international observers from the Commonwealth of Independent States believes that the re-vote in the presidential elections in Ukraine of 26 December 2004 was conducted by the electoral commissions on the basis of the acting electoral legislation of Ukraine. The voters actively used the opportunity given to them to express their weighed opinion. However the changes and additions brought into the law in the course of the electoral process largely infringed upon the interests of a significant number of voters.
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We first came across violations of the legislation on the day of voting, in the form of mass campaigning, which had an influence on the free expression of will of voters. The observers from the CIS hope that these presidential elections will assist the stabilization of the socio-political situation in Ukraine. At the same time the Mission of observers from the CIS unambiguously calls for an answer to all those questions in relation to the political crisis in Ukraine, in the legal field, in the bounds of the Constitution of the country and the national legislation, and considers it essential for the security of a unified nation to find a political exit from the crisis through a process of negotiation. We call for the reports of other international observers, who share the conclusions and judgments gathered here, to be attached to this Declaration.
Our preliminary findings were prepared before the final announcement of the results of the elections. A detailed report on the work of the Mission of observers from the CIS in the elections for the President of Ukraine will be presented to the heads of the member-states of the Commonwealth in accordance with the rules of procedure agreed by the Commonwealth of Independent States. [Translated by Alexander Nurnberg for The New York Times, December 2005]
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