Observation statement
INTERNATIONAL ELECTION OBSERVATION MISSION
Presidential Election (Repeat Second Round), Ukraine
26 December 2004
STATEMENT OF PRELIMINARY FINDINGS AND CONCLUSIONS
Kyiv, 27 December 2004 - The International Election Observation Mission (IEOM) for the
Ukrainian presidential election is a joint undertaking of the OSCE Office for Democratic
Institutions and Human Rights (OSCE/ODIHR), the OSCE Parliamentary Assembly (OSCE
PA), the Parliamentary Assembly of the Council of Europe (PACE), the European Parliament
(EP) and the NATO Parliamentary Assembly.
This statement should be considered in conjunction with the IEOM’s two previous statements
released on 1 and 22 November 2004, after the previous election rounds. It is issued before the
announcement of final results and resolution of possible complaints and appeals. The
OSCE/ODIHR will issue a comprehensive Final Report approximately six weeks after
completion of the process.
Preliminary Conclusions
The conduct of the 26 December election process brought Ukraine substantially closer to
meeting OSCE election commitments and Council of Europe and other European standards. In
the run-up to the keenly contested repeat second round, campaign conditions were markedly
more equal in contrast to previous polls. The main media provided voters with a balanced
coverage of the campaign and observers received few reports that voters were pressured to
support one of the candidates. The re-composed electoral administration conducted the election
much more transparently. The civil society demonstrated a high level of interest and engagement in the democratic process.
The circumstances following the second round of the presidential election led the Parliament to
adopt temporary amendments to the election legislation on 8 December. Although it is unusual
that election legislation be amended during the course of an election process, apparently the aim
of the Parliament was to lessen the potential for the type of fraud that previously occurred and
remedy deficiencies in the election administration.
Overall, the vast majority of observers assessed the process much more favourably than the two previous rounds. On the whole, polling was conducted in a calmer atmosphere, with far fewer candidate observers or members of Polling Station Commissions (PSCs) ejected or dismissed on 26 December than on both previous polling days. Yet, the atmosphere among some of the PSCs deteriorated during the count with disputes occurring in 19% of polling stations observed.
The local executive authorities and election administration had insufficient time to correct errors in voter lists noted during the two previous election rounds. Once again some citizens were turned away from polling stations because their names did not appear on voter lists. However, observers noted that the number of citizens adversely affected was fewer than on 31 October.
NATO Parliamentary Assembly
Assemblée parlementaire de l’OTAN
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Statement of Preliminary Findings & Conclusions
A lack of uniformity and a degree of confusion was noted by observers in PSCs handling of
voting by homebound voters. However, observers also reported ad hoc solutions to the problem
by Territorial Election Commissions (TECs), PSCs, local government administration, volunteers
and even local businesses providing transportation to the polling stations for elderly and
immobile voters
The repeat second round of the presidential election contained a number of features that
positively distinguish it from the 31 October and 21 November contests including:
• The Supreme Court’s 3 December ruling, reached through open and transparent
proceedings, which repealed the decision of the Central Election Commission (CEC) on
the 21 November election results due to evidence of systematic fraud making it
impossible to determine the will of voters;
• A newly composed CEC that endeavoured to conduct the repeat election with
significantly more transparency, including the posting on the CEC website of results by
polling station, and according to a very short timeframe;
• A significant reduction in the number of reports received by observers that State
employees, and other groups dependant on the State for their livelihood, were pressured
in their choice of candidate;
• A marked decline in the misuse of State resources during the campaign;
• The absence of so-called temnyky (guidelines on media content) on the main media
channels, which had been used previously to censor or otherwise distort information
presented in the media;
• The media’s coverage of the campaign, which in general was significantly more
balanced, giving citizens access to a plurality of views;
• A televised debate between the two main contestants, broadcast live by several national
TV channels, provided both candidates with a real opportunity to directly exchange views
and opinions, and share them with the electorate.
However shortcomings remain, including:
• The failure to incorporate provisions in the newly, although temporarily, amended
electoral legislation that: clarify the role of the police on election day; require the CEC to
publish all Polling Station results promptly; and permit non-partisan election observation
by domestic groups;
• Poorly prepared voter lists that are a legacy from the past;
• Isolated disruption of opposition campaign events, in a few cases with violence, which
impinged on the freedom of assembly;
• The distribution of inflammatory campaign material;
• A late decision by the Constitutional Court with regard to mobile voting, which the CEC
attempted to implement, although the lateness of the decision created some confusion as
to which citizens were entitled to vote with the mobile ballot box and implementation
was inconsistent;
• Some instances in which implausible preliminary results (100 % turnout) were reported
by a few polling stations throughout the regions of Ukraine.
As stated previously, the transparency of the tabulation and announcement of official election
results, and the effective and impartial resolution of any election day and subsequent complaints
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Statement of Preliminary Findings & Conclusions
and appeals, will be of crucial importance in forming a final assessment of the 2004 presidential
election. OSCE/ODIHR observers will remain in Ukraine to assess the tabulation of results at TECs and the CEC as well as the post-election complaints and appeals processes.
The IEOM wishes to thank the Ministry of Foreign Affairs, the Central Election Commission
and the Interdepartmental Working Group of the Cabinet of Ministers and other national and
local authorities for their assistance and cooperation.
Preliminary Findings
Background
The second round of the presidential election, which took place on 21 November 2004, was
marred by serious violations.1 On 24 November, during a particularly chaotic session, the CEC
announced final election results giving Mr. Yanukovych 49.46% of the vote to 46.61% for Mr.
Yushchenko. The CEC failed to consider a large number of official complaints filed by the
opposition. Four CEC members refused to sign the official protocol of these results.
Previously, Mr. Yushchenko had called his supporters to congregate in Kyiv’s Independence
Square and other locations around the country on the night of the election. As preliminary results showing a Yanukovych lead were released by the CEC, the crowds were requested by Mr. Yushchenko to remain in Independence Square. The CEC’s decision on 24 November to declare Mr. Yanukovych the winner deepened the emerging political crisis. Meanwhile, ruling on a complaint lodged by Mr. Yushchenko, the Supreme Court forbade the CEC to proceed further
with the publication of the results.
During the crisis, the Parliament of Ukraine (the Verkhovna Rada) met frequently. On 27
November, it adopted a Resolution that the official election results as announced by the CEC
should be considered void because they did not reflect the will of the people. It also passed a
motion of no-confidence in the CEC. It then adopted a Resolution calling on President Kuchma
to dismiss the Government of Prime Minister Yanukovych.
As the crisis unfolded, senior international mediators assisted in efforts to resolve the situation.2
On 1 December the participants signed a document inter alia committing the parties to abide by
the Supreme Court’s ruling on a complaint brought by Mr. Yushchenko against electoral
manipulation, to set up an expert group to assess the election legislation and adopt, together with amendments to the Election Law, changes to the Constitution of Ukraine regarding the division of power between the President and Parliament.
On 3 December 2004, after a five-day public hearing, the Supreme Court repealed the CEC
resolution on the election results and directed the CEC to conduct repeat voting on 26 December.
1 See the Statement of Preliminary Findings and Conclusions, issued by the IEOM on 22 November 2004.
2 Mr. Javier Solana, EU High Representative for the Common Foreign and Security Policy, Ambassador Jan Kubis, Secretary General of the OSCE, Mr. Alexander Kwasniewski, President of the Republic of Poland, Mr. Valdas Adamkus, President of the Republic of Lithuania, Mr. Boris Gryzlov, Speaker of the Russian Parliament and Mr Włodzimierz Cimoszewicz, Minister of Foreign Affairs of the Republic of Poland and Chairman of the Committee of Ministers of the Council of Europe.
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Statement of Preliminary Findings & Conclusions
On 4 December, the CEC complied with the Supreme Court’s ruling and set 26 December as the
date for repeat voting.
On 8 December, with a large majority, the Parliament voted to amend the electoral legislation
and the Constitution of Ukraine. The latter reduced the power of the incoming President vis-à-vis the parliament, with delayed effect, while the former aimed to reduce the potential for electoral fraud in the repeat election.
Resolution of Election Disputes after the 21 November Second Round
The most significant complaint adjudicated after the second round concerned Mr. Yushchenko’s
challenge of the CEC resolution establishing the final results. Although there were other
complaints pending in courts and with the CEC, these became inconsequential due to the
Supreme Court’s consideration of Mr. Yushchenko’s all-encompassing legal challenge. The
Court’s consideration of the complaint was open and transparent, and all parties had the
opportunity to present evidence and legal arguments. Furthermore, the Court allowed the
proceedings to be televised, and some broadcasters aired the complete proceedings.
The evidence presented to the Court led it to the conclusion that the electoral legislation and
Ukrainian Constitution had been violated and that it was impossible to ascertain the true result of the voters’ choice in the single nationwide constituency.
The Court established a number of significant facts during the case concerning the manner in
which the final results had been established by the CEC. Inter alia, the Court established that the CEC members had not been given an adequate opportunity to scrutinize documents submitted to it by TECs before determining the final national results. These documents included TEC-level results based on a calculation of PSC results within the election district, dissenting statements made by TEC members, and election-related complaints.
Sixty-five complaints were pending with the CEC when it decided the official results. This fact
was withheld from some CEC members. Indeed, they were informed that no complaints had
been submitted. However, it remained unclear who was responsible for withholding the
information. In addition, the Court found that, at the time the CEC determined the final results,
court cases concerning complaints made at PSC and TEC-level were still ongoing. The Supreme
Court concluded that the CEC acted unlawfully in determining the final results.
The Court also established that a number of significant violations had taken place before, during
and after the 21 November election. These included significant legal violations in the process, as
follows:
• There were violations during the compilation and updating of voter registers;
• The misuse of Absentee Voting Certificates (AVCs) violated the law, and their issuance
was without due CEC supervision;
• The election campaign in the media disregarded the principle of equality between
candidates;
• The ban on campaigning by executive government bodies and local governments was
disregarded by State officials;
• Legal provisions on the composition of election commissions and on the involvement of
official observers in the election process were violated;
• Provisions regulating mobile voting were violated;
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• Polling Station Commission (PSC) protocols were compiled in disregard of the law;
• Electoral documents were not transported to TECs according to law.
As a result, the Supreme Court determined that it was impossible to establish in a reliable
manner the will of voters in the single nationwide constituency and that, as a consequence, it was necessary to restore the rights of the participants of the electoral process by holding a repeat vote of the second round. In order to achieve this, the Court ruling obliged the CEC to appoint a repeat vote of the second round to be held on 26 December.
The Legal Framework Amendments to the election legislation were adopted by Parliament on 8 December. However, these are temporary and are effective only until a new President assumes office. While it is unusual that election legislation be amended during the course of an election process, apparently, the aim of the Parliament was to lessen the scope for the type of fraud that occurred on 21 November and remedy deficiencies in the election administration to avoid a repetition of the same violations on 26 December.
The most significant legal adjustments include:
• Re-composing the CEC with new membership;
• Reducing the size and amending the composition of the 225 Territorial Election
Commissions (TECs) and some 33,000 Polling Station Commissions (PSCs) to enable
the two candidates to appoint an equal number of Chairpersons, Secretaries and members
to these bodies;
• Preventing the late expulsion of election commission members, a problem noted in both
previous election rounds;
• Enhancing the integrity of the production and use of ballots and absentee voting
certificates (AVCs) and improving mechanisms to ensure their accurate reconciliation;
• Allowing candidate representatives more access to information on voter registration and
requiring the CEC to publish information on the number of voters registered;
• Reducing the number of documents which can be used by voters to prove their identity
when voting; and
• An amendment limiting the right to vote outside the polling station to voters with serious
and permanent disabilities, which was subsequently ruled by the Constitutional Court as
unconstitutional on the eve of the election.
However, the law still does not oblige the CEC to publish all PSC-level results on its website,
clarify the role of the police on election day or grant non-partisan Ukrainian observer groups a
legal status in monitoring the election process.
Election Administration
On the same day it adopted the amendments to the electoral legislation, the Parliament changed
the composition of the CEC. All parliamentary factions were able to propose and vote on each
CEC member. Four previous members of the CEC did not receive sufficient votes to be
reappointed, and new members replaced these persons. The outgoing members included Serhii
Kivalov, the former chairperson. The Party of Regions, which nominated Mr. Yanukovych as
candidate, re-nominated three existing CEC members. However, none of their nominees received
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Statement of Preliminary Findings & Conclusions sufficient support in Parliament to be appointed.
Mr. Yaroslav Davydovych, the former CEC Deputy Chairperson, was appointed Chairperson.
With only 18 days to prepare the election, the newly composed CEC was handed a considerable
challenge. The OSCE/ODIHR EOM continued its practice of observing all CEC sessions and
found that the CEC conducted sessions more openly and professionally than was previously the
case. One of its first actions was to remove an anti-riot barrier surrounding the CEC building put
in place by the former CEC. The CEC also finally complied with a Supreme Court instruction to
re-calculate the first round results to take into account the Court’s rulings on election appeals.
Overall, the CEC appeared more committed to conducting a transparent and accountable election process than previously.
The former CEC failed to provide the OSCE/ODIHR EOM with a variety of basic information
concerning election results, voter registers, the use of AVCs and the number of citizens voting
outside the polling stations. The new election law obliges the CEC to make public this type of
information. To meet these standard transparency measures, the CEC required information from TECs and PSCs. The CEC was able to comply with these reporting requirements.
In general, the CEC was efficient in dealing with an enormous workload and meeting tight legal
deadlines. The printing of 38 million ballots in a short period was a particular challenge. To
achieve this, the CEC requested Parliament to amend the new electoral legislation to permit
ballot printing in two printing houses rather than one. This amendment was passed on 14
December and, after a delay, was signed into law by President Kuchma on 18 December.
According to the CEC, 38,113,075 ballots were printed, a figure 1.6% in excess of the number of
voters registered prior to election day. However, in Donetsk TECs were provided with excess
ballots amounting to only 0.2%, whereas other regions including Crimea, Kharkiv, Kyiv, Lviv
and Khmelnitsky received a 2% excess number of ballots.
The re-configuration of TECs, which are composed of an equal number of representatives of the
two candidates, went remarkably smoothly considering the limited time available. In general,
observers reported that, in contrast to the appointment of the former TECs, the appointment was non-controversial, despite the fact that the overwhelming majority of TEC Chairpersons from the second round were changed.
However, observers reported that some 12% of TECs experienced difficulties reaching a quorum for their sessions; this can be linked to the fact that candidates appointed representatives from the east to PSCs in the west and vice versa. Another result of this strategy, followed by both candidates, is the poor level of collegiality reported in almost 32% of TECs observed.
TECs had their first session according to deadlines foreseen by amendments. Although some
training events took place, there was insufficient time to provide a significant level of training
for new TEC members.
Similarly, the appointment of almost half a million PSC members was achieved within very tight
deadlines. While some late changes to the membership of some TECs and PSCs occurred, the
newly composed commissions were politically balanced. In general, their membership was not
subject to widespread personnel changes as witnessed after their predecessors were formed in
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September3. Furthermore, the amendments to the law prevented the dismissal of candidate
representatives on the eve of the election. One of the amendments to the election law limited the right to receive a ballot outside the polling station to disabled persons of the first category. Yet, on 25 December, the Constitutional Court ruled that this provision was too restrictive and ordered the CEC to take necessary measures for implementation of the Court’s ruling. The election administration endeavoured to comply with the Constitutional Court’s decision. In general, the CEC informed TECs of the ruling the same afternoon by telephone and sent written information later, by fax, email or cable.
Indeed, all of the TECs contacted by LTOs on 25 and 26 December were aware of the ruling. However, many PSCs received the information through the media. Nevertheless, TECs successfully contacted many PSCs, particularly in urban areas. However, insufficient time was available to notify all PSCs and voters of the Court’s ruling, before the expiry of the deadline for citizens to request to vote at home, 20.00, on 25 December.
According to data released publicly by the CEC, some 590,000 voters (1.6% of registered voters) requested a mobile vote. The largest percentages were found in Donetsk and Luhansk regions, where it was reported some 160,000 citizens requested to vote at home (some 3% of registered voters). Ternopil, Volyn and Poltava regions also experienced a higher than average number of citizens’ requests to vote at home. In Kyiv, only 0.4% of registered voters requested to vote at home.
While a total 188,070 Absentee Voting Certificates were printed for the 26 December round of
voting, only 37,000 persons requested to receive an AVC. Of these, only 11,000 actually
registered to vote at a polling station away from the place of their permanent residence.
Consequently the scope for misuse of this provision, as occurred on 21 November, was
considerably lessened.
Voter Lists
There is widespread recognition that inaccurate voter lists were one of the most significant
shortcomings of the two previous election rounds. The OSCE/ODIHR EOM assessed that local
State administrative bodies, which are in charge of the production of the voter lists, were
primarily responsible for inaccuracies in previously compiled draft voter lists.
The amendments to the law introduced minor changes to provisions on the preparation of voter
lists. For example, on election day, minor correction of the lists is permitted. However, voters
may only have their names added to lists if they are in possession of a certificate issued by a
Court. Unlike previously, they may not be added to a voter list through an AVC, which were
abused to facilitate multiple voting in some regions on 21 November. Additional mechanisms
aimed at preventing fraud and improving transparency included the numbering of voters on the
voter list and issuing candidate representatives a copy of the lists prior to election day.
However, there was clearly insufficient time available to improve fundamentally the accuracy of the lists. As there were widespread concerns that the voter lists prepared for the 21 November election had been manipulated after the first round, the Parliament decided that voter lists prepared for the 31 October election should be re-used for the 26 December election, including the names of 3 Significant numbers of election officials representing opposition candidates were removed from their posts at the
last minute prior to both the 31 October and 21 November rounds of voting.
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those citizens who had applied for Court and TEC decisions on 31 October. The CEC stated its
intention to enforce a much stricter control on the management and updating of the voter lists.
The CEC appointed all TECs on 18 December. According to the amendments, TECs were
required to prepare new voter lists for the repeat second round by 20 December. OSCE/ODIHR
EOM observers reported that there had been uncertainty about which voter lists should be used for the re-run, despite clear formulation in amendments and later clarifications on amendments sent by the CEC to election commissions on 21 December. The voter lists from 21 November were reportedly used in parallel with the one of 31 October, thus resulting in a lack of uniformity in the application of law. In addition, 54% observers expressed poor confidence in the accuracy of VL.
The late appointment of a number of PSCs lessened the time available to voters to check the lists or collect an AVC, even though, as reported by OSCE/ODIHR EOM observers, a majority of
PSC received VL within the deadline.
The Campaign
Both candidates actively contested the election. However, in contrast to the previous two election rounds, Mr. Yanukovych took a leave of absence to campaign. Deputy Prime Minister Mykola Azarov is serving as acting Prime Minister.
During the brief campaign period, the two candidates confronted each other sharply. This was
particularly visible during the presidential debate broadcast live on the night of 20 December, in
which the candidates were able to ask direct questions to each other.
While a number of campaign events did take place, observers reported that overall the campaign was more low-key than during the run-up to the 21 November election. However, taking into consideration the wide-ranging civil and political activity that followed the original second round, the campaign activities never truly ceased, and each candidate’s supporters remained highly mobilised.
The report by international medical experts that Mr. Yushchenko had been poisoned by dioxin
ingested orally was the most prominently discussed news story in the week prior to the election.
Mr. Yushchenko asserted publicly that he was sure he had been poisoned at the behest of
Ukrainian authorities, although this was denied.
Mr. Yanukovych focused his campaign activities in the east and south of Ukraine, where he
made a number of personal appearances. He charged Mr. Yushchenko and President Kuchma as
instigating an “anti-constitutional coup”. He also asserted during numerous public appearances
that Western, particularly American, funds were used to support Mr. Yushchenko’s campaign
and that Ukraine would have to pay for this alleged support should Mr. Yushchenko be elected.
During the run-up to the repeat election, Mr. Yanukovych began to present himself as in
opposition to President Kuchma and Mr. Yushchenko.
The Yushchenko campaign launched intensive mobile campaign activities in the east and south
of the country with personal appearances in Kharkiv, Mr. Yushchenko’s supporters organised a
convoy of cars travelling from city to city, predominantly in areas that had supported Mr.
Yanukovych during previous rounds. The convoy, termed “freedom train”, encountered
obstruction in Odessa and Crimea and was attacked in Donetsk. Nevertheless, in the run-up to
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the repeat election, freedom of assembly was largely respected. A small pro-Yushchenko
campaign event was held in Donetsk, without incident. The Yushchenko campaign released new television advertisements and public statements about citizens’ ability to receive education and use the Russian language. During his campaign, Mr. Yushchenko stressed the importance of good relations with Russia, which he hoped would improve under his leadership.
In the final week of the campaign, Mr. Yanukovych repeatedly called for a repeal of the
amendments to the election law restricting the special voting procedures of absentee and mobile
voting, which he presented as an unfair infringement of voters' rights. He made a point of this in
the 20 December debate with Mr. Yushchenko, and there were attempts to repeal the restrictive amendments of the legislation in the Rada.
As in previous rounds, the OSCE/ODIHR EOM identified examples of inflammatory campaign
material. While this was less visible than previously, material that linked Mr. Yushchenko to
Nazism that was distributed at a Yanukovych rally in Odessa went well beyond acceptable
norms.
Challenges to Civil and Political Rights
Other than incidents involving the above-mentioned “Friendship Train”, only a few campaign
related incidents were reported, including the destruction of some campaign stands in
Simferopol. A few observers received allegations that pressure was being applied to students,
public employees and governmental officials to vote for Mr. Yanukovych in some southern and
eastern regions. However, insufficient time was available to corroborate fully the allegations. In
Donetsk, observers reported that the media environment had become more restrictive, with
pressure applied to independent journalists. Observers in western, northern and central regions
did not receive any reports of challenges to citizens’ civil and political rights.
Role of State Structures during the Campaign
During the relatively brief period of observation preceding the repeat election, observers were
unable to detect any widespread misuse of State resources for the benefit of one or other
candidate. In general, observers received far fewer reports that local government officials were
interfering in the election, and many reported that local administrations were attempting to
facilitate the process.
Resolution of Disputes Prior to the Repeat Second Round
Few complaints were filed after the 3 December decision of the Supreme Court. Mr.
Yanukovych filed a complaint with the CEC alleging that Mr. Yushchenko’s campaign had been
funded by American sources, which would be a violation of the electoral law. The CEC rejected
this complaint on 22 December, as no evidence of illegal contribution was provided.
Mr. Yanukovych also filed two complaints with the Supreme Court seeking to reverse CEC
resolutions regulating the printing of ballots. The first complaint sought reversal of the CEC
resolution that permitted both candidates to form observation teams for ballot printing at the two printing houses. The basis of the complaint was that the resolution was passed before President Kuchma signed the law allowing a second printing house for ballots.
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rejected the complaint because the CEC resolution did not harm Mr. Yanukovych, but in fact
benefited him since his representatives would be able to observe ballot printing.
Mr. Yanukovych also filed a complaint on the CEC resolution that determined the number of
ballots to be printed. The basis of this complaint was that the number of ballots to be printed -
38,113,075 - would be insufficient. Mr. Yanukovych’s representative argued that the number of
ballots should be based on the number of voters on voter lists used for the second round of
voting instead of the lists used for the first round, and that this required a higher number of
ballots to be printed. The Supreme Court rejected the complaint because the number of ballots to be printed was the same as the number printed in the first round and because there were more than 10,000,000 unused ballots in the first and second round of voting.
A complaint was filed with the Constitutional Court by 46 Verkhovna Rada deputies challenging
the 8 December amendments to the electoral law. The complaint claimed that the amendments
restricted suffrage rights of citizens and freedom of movement by limiting the use of mobile
voting and absentee voting certificates. The Constitutional Court heard the case on 23 and 24
December.
On 25 December, the Constitutional Court ruled that the amendments were constitutional, with
the exception of one amendment that limited the right to vote by mobile ballot to disabled
persons who are unable to take care of themselves and require daily assistance from others. The
Constitutional Court ruled that this provision was too restrictive and ordered the CEC to take
necessary measures for implementation of the Court’s ruling.
In response, the CEC issued a clarification the same day stating that mobile voting would be
available to any voter who could not come to the polling station on his own. The Yanukovych
campaign filed a complaint the same day with the Supreme Court challenging the CEC
clarification. The Supreme Court upheld the CEC decision adopting the clarification.
The Media Following the seriously flawed 21 November election and the holding of mass demonstrations, many of the most significant media outlets started to redress the substantial imbalance in the content of their broadcasts dealing with political issues. In sharp contrast to previous practice, opposition politicians were given direct airtime to challenge the views of political incumbents.
On 4 December, the OSCE/ODIHR EOM recommenced its monitoring of six nationwide TV
channels, two channels with partial nation-level coverage, and nine daily newspapers.4
The OSCE/ODIHR EOM’s media monitoring findings showed that a number of significant
changes in the media’s presentation of political and electoral issues have occurred. In the three
weeks preceding the repeat runoff, the media actively covered the activities and opinions of the
two candidates in a much more balanced manner than during the period preceding the two
previous rounds of voting.
Overall, the media offered voters a diverse range of views. Previously, temnyky (guidelines on
the content and presentation of news items) were used to censor or manipulate information and
constrain the public’s free access to balanced information. Journalists reported to the
4 Television: State-funded UT1, Private Inter, 1+1, ICTV, STB, Novy Kanal, TRK Ukraina and Channel 5. Newspapers: State Uriadovy Kurier, Golos Ukrainy, Private Facty I Komentarii, Segodnia, Den, Silski Visty, Ukraina Moloda, Zerkalo Tyzhna and Vechirni Visti.
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Statement of Preliminary Findings & Conclusions
OSCE/ODIHR EOM that the main TV networks no longer followed these “guidelines”. Indeed,
most TV channels monitored by the EOM made a clear effort to serve as a forum for discussion,
in which opinions might be shared and exchanged freely.
As Mr. Yanukovych had taken a leave of absence from his position as Prime Minister, he no
longer derived as much media attention in his capacity as a senior member of the Government.
Marking a significant break with its previous electoral coverage, the State-funded television,
UT1, generally offered candidates equal conditions to convey their message to the electorate.
UT1 complied with a CEC decision to allocate free airtime to both candidates for campaign
broadcasts. A televised debate between the two main contestants took place on UT1 and was
broadcast by several other TV channels. In a positive development, the format of the debate
provided both candidates with a real opportunity to directly exchange views and opinions.
The EOM's media analysis revealed that during the three weeks preceding the 26 December
election, UT1 provided Mr. Yanukovych with 57.5% of its political and election prime time
news coverage, of which 35% was evaluated by the OSCE/ODIHR EOM as positive and 57%
neutral in tone. During the same period, Mr. Yushchenko received 42.5% of similar airtime, of
which 28% had positive and 60% neutral connotations.
The two most popular private TV channels, Inter and 1+1, offered viewers a plurality of views.
In its prime time news programmes, Inter presented balanced and impartial coverage of both
contestants. While 1+1 provided both candidates with a similar amount of airtime, it granted Mr. Yushchenko more favourable coverage. Other private TV chan
Presidential Election (Repeat Second Round), Ukraine
26 December 2004
STATEMENT OF PRELIMINARY FINDINGS AND CONCLUSIONS
Kyiv, 27 December 2004 - The International Election Observation Mission (IEOM) for the
Ukrainian presidential election is a joint undertaking of the OSCE Office for Democratic
Institutions and Human Rights (OSCE/ODIHR), the OSCE Parliamentary Assembly (OSCE
PA), the Parliamentary Assembly of the Council of Europe (PACE), the European Parliament
(EP) and the NATO Parliamentary Assembly.
This statement should be considered in conjunction with the IEOM’s two previous statements
released on 1 and 22 November 2004, after the previous election rounds. It is issued before the
announcement of final results and resolution of possible complaints and appeals. The
OSCE/ODIHR will issue a comprehensive Final Report approximately six weeks after
completion of the process.
Preliminary Conclusions
The conduct of the 26 December election process brought Ukraine substantially closer to
meeting OSCE election commitments and Council of Europe and other European standards. In
the run-up to the keenly contested repeat second round, campaign conditions were markedly
more equal in contrast to previous polls. The main media provided voters with a balanced
coverage of the campaign and observers received few reports that voters were pressured to
support one of the candidates. The re-composed electoral administration conducted the election
much more transparently. The civil society demonstrated a high level of interest and engagement in the democratic process.
The circumstances following the second round of the presidential election led the Parliament to
adopt temporary amendments to the election legislation on 8 December. Although it is unusual
that election legislation be amended during the course of an election process, apparently the aim
of the Parliament was to lessen the potential for the type of fraud that previously occurred and
remedy deficiencies in the election administration.
Overall, the vast majority of observers assessed the process much more favourably than the two previous rounds. On the whole, polling was conducted in a calmer atmosphere, with far fewer candidate observers or members of Polling Station Commissions (PSCs) ejected or dismissed on 26 December than on both previous polling days. Yet, the atmosphere among some of the PSCs deteriorated during the count with disputes occurring in 19% of polling stations observed.
The local executive authorities and election administration had insufficient time to correct errors in voter lists noted during the two previous election rounds. Once again some citizens were turned away from polling stations because their names did not appear on voter lists. However, observers noted that the number of citizens adversely affected was fewer than on 31 October.
NATO Parliamentary Assembly
Assemblée parlementaire de l’OTAN
International Election Observation Mission, Page: 2
Presidential Election – Repeat Second Round, Ukraine, -- 26 December 2004
Statement of Preliminary Findings & Conclusions
A lack of uniformity and a degree of confusion was noted by observers in PSCs handling of
voting by homebound voters. However, observers also reported ad hoc solutions to the problem
by Territorial Election Commissions (TECs), PSCs, local government administration, volunteers
and even local businesses providing transportation to the polling stations for elderly and
immobile voters
The repeat second round of the presidential election contained a number of features that
positively distinguish it from the 31 October and 21 November contests including:
• The Supreme Court’s 3 December ruling, reached through open and transparent
proceedings, which repealed the decision of the Central Election Commission (CEC) on
the 21 November election results due to evidence of systematic fraud making it
impossible to determine the will of voters;
• A newly composed CEC that endeavoured to conduct the repeat election with
significantly more transparency, including the posting on the CEC website of results by
polling station, and according to a very short timeframe;
• A significant reduction in the number of reports received by observers that State
employees, and other groups dependant on the State for their livelihood, were pressured
in their choice of candidate;
• A marked decline in the misuse of State resources during the campaign;
• The absence of so-called temnyky (guidelines on media content) on the main media
channels, which had been used previously to censor or otherwise distort information
presented in the media;
• The media’s coverage of the campaign, which in general was significantly more
balanced, giving citizens access to a plurality of views;
• A televised debate between the two main contestants, broadcast live by several national
TV channels, provided both candidates with a real opportunity to directly exchange views
and opinions, and share them with the electorate.
However shortcomings remain, including:
• The failure to incorporate provisions in the newly, although temporarily, amended
electoral legislation that: clarify the role of the police on election day; require the CEC to
publish all Polling Station results promptly; and permit non-partisan election observation
by domestic groups;
• Poorly prepared voter lists that are a legacy from the past;
• Isolated disruption of opposition campaign events, in a few cases with violence, which
impinged on the freedom of assembly;
• The distribution of inflammatory campaign material;
• A late decision by the Constitutional Court with regard to mobile voting, which the CEC
attempted to implement, although the lateness of the decision created some confusion as
to which citizens were entitled to vote with the mobile ballot box and implementation
was inconsistent;
• Some instances in which implausible preliminary results (100 % turnout) were reported
by a few polling stations throughout the regions of Ukraine.
As stated previously, the transparency of the tabulation and announcement of official election
results, and the effective and impartial resolution of any election day and subsequent complaints
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Presidential Election – Repeat Second Round, Ukraine, -- 26 December 2004
Statement of Preliminary Findings & Conclusions
and appeals, will be of crucial importance in forming a final assessment of the 2004 presidential
election. OSCE/ODIHR observers will remain in Ukraine to assess the tabulation of results at TECs and the CEC as well as the post-election complaints and appeals processes.
The IEOM wishes to thank the Ministry of Foreign Affairs, the Central Election Commission
and the Interdepartmental Working Group of the Cabinet of Ministers and other national and
local authorities for their assistance and cooperation.
Preliminary Findings
Background
The second round of the presidential election, which took place on 21 November 2004, was
marred by serious violations.1 On 24 November, during a particularly chaotic session, the CEC
announced final election results giving Mr. Yanukovych 49.46% of the vote to 46.61% for Mr.
Yushchenko. The CEC failed to consider a large number of official complaints filed by the
opposition. Four CEC members refused to sign the official protocol of these results.
Previously, Mr. Yushchenko had called his supporters to congregate in Kyiv’s Independence
Square and other locations around the country on the night of the election. As preliminary results showing a Yanukovych lead were released by the CEC, the crowds were requested by Mr. Yushchenko to remain in Independence Square. The CEC’s decision on 24 November to declare Mr. Yanukovych the winner deepened the emerging political crisis. Meanwhile, ruling on a complaint lodged by Mr. Yushchenko, the Supreme Court forbade the CEC to proceed further
with the publication of the results.
During the crisis, the Parliament of Ukraine (the Verkhovna Rada) met frequently. On 27
November, it adopted a Resolution that the official election results as announced by the CEC
should be considered void because they did not reflect the will of the people. It also passed a
motion of no-confidence in the CEC. It then adopted a Resolution calling on President Kuchma
to dismiss the Government of Prime Minister Yanukovych.
As the crisis unfolded, senior international mediators assisted in efforts to resolve the situation.2
On 1 December the participants signed a document inter alia committing the parties to abide by
the Supreme Court’s ruling on a complaint brought by Mr. Yushchenko against electoral
manipulation, to set up an expert group to assess the election legislation and adopt, together with amendments to the Election Law, changes to the Constitution of Ukraine regarding the division of power between the President and Parliament.
On 3 December 2004, after a five-day public hearing, the Supreme Court repealed the CEC
resolution on the election results and directed the CEC to conduct repeat voting on 26 December.
1 See the Statement of Preliminary Findings and Conclusions, issued by the IEOM on 22 November 2004.
2 Mr. Javier Solana, EU High Representative for the Common Foreign and Security Policy, Ambassador Jan Kubis, Secretary General of the OSCE, Mr. Alexander Kwasniewski, President of the Republic of Poland, Mr. Valdas Adamkus, President of the Republic of Lithuania, Mr. Boris Gryzlov, Speaker of the Russian Parliament and Mr Włodzimierz Cimoszewicz, Minister of Foreign Affairs of the Republic of Poland and Chairman of the Committee of Ministers of the Council of Europe.
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Presidential Election – Repeat Second Round, Ukraine, -- 26 December 2004
Statement of Preliminary Findings & Conclusions
On 4 December, the CEC complied with the Supreme Court’s ruling and set 26 December as the
date for repeat voting.
On 8 December, with a large majority, the Parliament voted to amend the electoral legislation
and the Constitution of Ukraine. The latter reduced the power of the incoming President vis-à-vis the parliament, with delayed effect, while the former aimed to reduce the potential for electoral fraud in the repeat election.
Resolution of Election Disputes after the 21 November Second Round
The most significant complaint adjudicated after the second round concerned Mr. Yushchenko’s
challenge of the CEC resolution establishing the final results. Although there were other
complaints pending in courts and with the CEC, these became inconsequential due to the
Supreme Court’s consideration of Mr. Yushchenko’s all-encompassing legal challenge. The
Court’s consideration of the complaint was open and transparent, and all parties had the
opportunity to present evidence and legal arguments. Furthermore, the Court allowed the
proceedings to be televised, and some broadcasters aired the complete proceedings.
The evidence presented to the Court led it to the conclusion that the electoral legislation and
Ukrainian Constitution had been violated and that it was impossible to ascertain the true result of the voters’ choice in the single nationwide constituency.
The Court established a number of significant facts during the case concerning the manner in
which the final results had been established by the CEC. Inter alia, the Court established that the CEC members had not been given an adequate opportunity to scrutinize documents submitted to it by TECs before determining the final national results. These documents included TEC-level results based on a calculation of PSC results within the election district, dissenting statements made by TEC members, and election-related complaints.
Sixty-five complaints were pending with the CEC when it decided the official results. This fact
was withheld from some CEC members. Indeed, they were informed that no complaints had
been submitted. However, it remained unclear who was responsible for withholding the
information. In addition, the Court found that, at the time the CEC determined the final results,
court cases concerning complaints made at PSC and TEC-level were still ongoing. The Supreme
Court concluded that the CEC acted unlawfully in determining the final results.
The Court also established that a number of significant violations had taken place before, during
and after the 21 November election. These included significant legal violations in the process, as
follows:
• There were violations during the compilation and updating of voter registers;
• The misuse of Absentee Voting Certificates (AVCs) violated the law, and their issuance
was without due CEC supervision;
• The election campaign in the media disregarded the principle of equality between
candidates;
• The ban on campaigning by executive government bodies and local governments was
disregarded by State officials;
• Legal provisions on the composition of election commissions and on the involvement of
official observers in the election process were violated;
• Provisions regulating mobile voting were violated;
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Statement of Preliminary Findings & Conclusions
• Polling Station Commission (PSC) protocols were compiled in disregard of the law;
• Electoral documents were not transported to TECs according to law.
As a result, the Supreme Court determined that it was impossible to establish in a reliable
manner the will of voters in the single nationwide constituency and that, as a consequence, it was necessary to restore the rights of the participants of the electoral process by holding a repeat vote of the second round. In order to achieve this, the Court ruling obliged the CEC to appoint a repeat vote of the second round to be held on 26 December.
The Legal Framework Amendments to the election legislation were adopted by Parliament on 8 December. However, these are temporary and are effective only until a new President assumes office. While it is unusual that election legislation be amended during the course of an election process, apparently, the aim of the Parliament was to lessen the scope for the type of fraud that occurred on 21 November and remedy deficiencies in the election administration to avoid a repetition of the same violations on 26 December.
The most significant legal adjustments include:
• Re-composing the CEC with new membership;
• Reducing the size and amending the composition of the 225 Territorial Election
Commissions (TECs) and some 33,000 Polling Station Commissions (PSCs) to enable
the two candidates to appoint an equal number of Chairpersons, Secretaries and members
to these bodies;
• Preventing the late expulsion of election commission members, a problem noted in both
previous election rounds;
• Enhancing the integrity of the production and use of ballots and absentee voting
certificates (AVCs) and improving mechanisms to ensure their accurate reconciliation;
• Allowing candidate representatives more access to information on voter registration and
requiring the CEC to publish information on the number of voters registered;
• Reducing the number of documents which can be used by voters to prove their identity
when voting; and
• An amendment limiting the right to vote outside the polling station to voters with serious
and permanent disabilities, which was subsequently ruled by the Constitutional Court as
unconstitutional on the eve of the election.
However, the law still does not oblige the CEC to publish all PSC-level results on its website,
clarify the role of the police on election day or grant non-partisan Ukrainian observer groups a
legal status in monitoring the election process.
Election Administration
On the same day it adopted the amendments to the electoral legislation, the Parliament changed
the composition of the CEC. All parliamentary factions were able to propose and vote on each
CEC member. Four previous members of the CEC did not receive sufficient votes to be
reappointed, and new members replaced these persons. The outgoing members included Serhii
Kivalov, the former chairperson. The Party of Regions, which nominated Mr. Yanukovych as
candidate, re-nominated three existing CEC members. However, none of their nominees received
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Presidential Election – Repeat Second Round, Ukraine, -- 26 December 2004
Statement of Preliminary Findings & Conclusions sufficient support in Parliament to be appointed.
Mr. Yaroslav Davydovych, the former CEC Deputy Chairperson, was appointed Chairperson.
With only 18 days to prepare the election, the newly composed CEC was handed a considerable
challenge. The OSCE/ODIHR EOM continued its practice of observing all CEC sessions and
found that the CEC conducted sessions more openly and professionally than was previously the
case. One of its first actions was to remove an anti-riot barrier surrounding the CEC building put
in place by the former CEC. The CEC also finally complied with a Supreme Court instruction to
re-calculate the first round results to take into account the Court’s rulings on election appeals.
Overall, the CEC appeared more committed to conducting a transparent and accountable election process than previously.
The former CEC failed to provide the OSCE/ODIHR EOM with a variety of basic information
concerning election results, voter registers, the use of AVCs and the number of citizens voting
outside the polling stations. The new election law obliges the CEC to make public this type of
information. To meet these standard transparency measures, the CEC required information from TECs and PSCs. The CEC was able to comply with these reporting requirements.
In general, the CEC was efficient in dealing with an enormous workload and meeting tight legal
deadlines. The printing of 38 million ballots in a short period was a particular challenge. To
achieve this, the CEC requested Parliament to amend the new electoral legislation to permit
ballot printing in two printing houses rather than one. This amendment was passed on 14
December and, after a delay, was signed into law by President Kuchma on 18 December.
According to the CEC, 38,113,075 ballots were printed, a figure 1.6% in excess of the number of
voters registered prior to election day. However, in Donetsk TECs were provided with excess
ballots amounting to only 0.2%, whereas other regions including Crimea, Kharkiv, Kyiv, Lviv
and Khmelnitsky received a 2% excess number of ballots.
The re-configuration of TECs, which are composed of an equal number of representatives of the
two candidates, went remarkably smoothly considering the limited time available. In general,
observers reported that, in contrast to the appointment of the former TECs, the appointment was non-controversial, despite the fact that the overwhelming majority of TEC Chairpersons from the second round were changed.
However, observers reported that some 12% of TECs experienced difficulties reaching a quorum for their sessions; this can be linked to the fact that candidates appointed representatives from the east to PSCs in the west and vice versa. Another result of this strategy, followed by both candidates, is the poor level of collegiality reported in almost 32% of TECs observed.
TECs had their first session according to deadlines foreseen by amendments. Although some
training events took place, there was insufficient time to provide a significant level of training
for new TEC members.
Similarly, the appointment of almost half a million PSC members was achieved within very tight
deadlines. While some late changes to the membership of some TECs and PSCs occurred, the
newly composed commissions were politically balanced. In general, their membership was not
subject to widespread personnel changes as witnessed after their predecessors were formed in
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Statement of Preliminary Findings & Conclusions
September3. Furthermore, the amendments to the law prevented the dismissal of candidate
representatives on the eve of the election. One of the amendments to the election law limited the right to receive a ballot outside the polling station to disabled persons of the first category. Yet, on 25 December, the Constitutional Court ruled that this provision was too restrictive and ordered the CEC to take necessary measures for implementation of the Court’s ruling. The election administration endeavoured to comply with the Constitutional Court’s decision. In general, the CEC informed TECs of the ruling the same afternoon by telephone and sent written information later, by fax, email or cable.
Indeed, all of the TECs contacted by LTOs on 25 and 26 December were aware of the ruling. However, many PSCs received the information through the media. Nevertheless, TECs successfully contacted many PSCs, particularly in urban areas. However, insufficient time was available to notify all PSCs and voters of the Court’s ruling, before the expiry of the deadline for citizens to request to vote at home, 20.00, on 25 December.
According to data released publicly by the CEC, some 590,000 voters (1.6% of registered voters) requested a mobile vote. The largest percentages were found in Donetsk and Luhansk regions, where it was reported some 160,000 citizens requested to vote at home (some 3% of registered voters). Ternopil, Volyn and Poltava regions also experienced a higher than average number of citizens’ requests to vote at home. In Kyiv, only 0.4% of registered voters requested to vote at home.
While a total 188,070 Absentee Voting Certificates were printed for the 26 December round of
voting, only 37,000 persons requested to receive an AVC. Of these, only 11,000 actually
registered to vote at a polling station away from the place of their permanent residence.
Consequently the scope for misuse of this provision, as occurred on 21 November, was
considerably lessened.
Voter Lists
There is widespread recognition that inaccurate voter lists were one of the most significant
shortcomings of the two previous election rounds. The OSCE/ODIHR EOM assessed that local
State administrative bodies, which are in charge of the production of the voter lists, were
primarily responsible for inaccuracies in previously compiled draft voter lists.
The amendments to the law introduced minor changes to provisions on the preparation of voter
lists. For example, on election day, minor correction of the lists is permitted. However, voters
may only have their names added to lists if they are in possession of a certificate issued by a
Court. Unlike previously, they may not be added to a voter list through an AVC, which were
abused to facilitate multiple voting in some regions on 21 November. Additional mechanisms
aimed at preventing fraud and improving transparency included the numbering of voters on the
voter list and issuing candidate representatives a copy of the lists prior to election day.
However, there was clearly insufficient time available to improve fundamentally the accuracy of the lists. As there were widespread concerns that the voter lists prepared for the 21 November election had been manipulated after the first round, the Parliament decided that voter lists prepared for the 31 October election should be re-used for the 26 December election, including the names of 3 Significant numbers of election officials representing opposition candidates were removed from their posts at the
last minute prior to both the 31 October and 21 November rounds of voting.
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Presidential Election – Repeat Second Round, Ukraine, -- 26 December 2004
Statement of Preliminary Findings & Conclusions
those citizens who had applied for Court and TEC decisions on 31 October. The CEC stated its
intention to enforce a much stricter control on the management and updating of the voter lists.
The CEC appointed all TECs on 18 December. According to the amendments, TECs were
required to prepare new voter lists for the repeat second round by 20 December. OSCE/ODIHR
EOM observers reported that there had been uncertainty about which voter lists should be used for the re-run, despite clear formulation in amendments and later clarifications on amendments sent by the CEC to election commissions on 21 December. The voter lists from 21 November were reportedly used in parallel with the one of 31 October, thus resulting in a lack of uniformity in the application of law. In addition, 54% observers expressed poor confidence in the accuracy of VL.
The late appointment of a number of PSCs lessened the time available to voters to check the lists or collect an AVC, even though, as reported by OSCE/ODIHR EOM observers, a majority of
PSC received VL within the deadline.
The Campaign
Both candidates actively contested the election. However, in contrast to the previous two election rounds, Mr. Yanukovych took a leave of absence to campaign. Deputy Prime Minister Mykola Azarov is serving as acting Prime Minister.
During the brief campaign period, the two candidates confronted each other sharply. This was
particularly visible during the presidential debate broadcast live on the night of 20 December, in
which the candidates were able to ask direct questions to each other.
While a number of campaign events did take place, observers reported that overall the campaign was more low-key than during the run-up to the 21 November election. However, taking into consideration the wide-ranging civil and political activity that followed the original second round, the campaign activities never truly ceased, and each candidate’s supporters remained highly mobilised.
The report by international medical experts that Mr. Yushchenko had been poisoned by dioxin
ingested orally was the most prominently discussed news story in the week prior to the election.
Mr. Yushchenko asserted publicly that he was sure he had been poisoned at the behest of
Ukrainian authorities, although this was denied.
Mr. Yanukovych focused his campaign activities in the east and south of Ukraine, where he
made a number of personal appearances. He charged Mr. Yushchenko and President Kuchma as
instigating an “anti-constitutional coup”. He also asserted during numerous public appearances
that Western, particularly American, funds were used to support Mr. Yushchenko’s campaign
and that Ukraine would have to pay for this alleged support should Mr. Yushchenko be elected.
During the run-up to the repeat election, Mr. Yanukovych began to present himself as in
opposition to President Kuchma and Mr. Yushchenko.
The Yushchenko campaign launched intensive mobile campaign activities in the east and south
of the country with personal appearances in Kharkiv, Mr. Yushchenko’s supporters organised a
convoy of cars travelling from city to city, predominantly in areas that had supported Mr.
Yanukovych during previous rounds. The convoy, termed “freedom train”, encountered
obstruction in Odessa and Crimea and was attacked in Donetsk. Nevertheless, in the run-up to
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Statement of Preliminary Findings & Conclusions
the repeat election, freedom of assembly was largely respected. A small pro-Yushchenko
campaign event was held in Donetsk, without incident. The Yushchenko campaign released new television advertisements and public statements about citizens’ ability to receive education and use the Russian language. During his campaign, Mr. Yushchenko stressed the importance of good relations with Russia, which he hoped would improve under his leadership.
In the final week of the campaign, Mr. Yanukovych repeatedly called for a repeal of the
amendments to the election law restricting the special voting procedures of absentee and mobile
voting, which he presented as an unfair infringement of voters' rights. He made a point of this in
the 20 December debate with Mr. Yushchenko, and there were attempts to repeal the restrictive amendments of the legislation in the Rada.
As in previous rounds, the OSCE/ODIHR EOM identified examples of inflammatory campaign
material. While this was less visible than previously, material that linked Mr. Yushchenko to
Nazism that was distributed at a Yanukovych rally in Odessa went well beyond acceptable
norms.
Challenges to Civil and Political Rights
Other than incidents involving the above-mentioned “Friendship Train”, only a few campaign
related incidents were reported, including the destruction of some campaign stands in
Simferopol. A few observers received allegations that pressure was being applied to students,
public employees and governmental officials to vote for Mr. Yanukovych in some southern and
eastern regions. However, insufficient time was available to corroborate fully the allegations. In
Donetsk, observers reported that the media environment had become more restrictive, with
pressure applied to independent journalists. Observers in western, northern and central regions
did not receive any reports of challenges to citizens’ civil and political rights.
Role of State Structures during the Campaign
During the relatively brief period of observation preceding the repeat election, observers were
unable to detect any widespread misuse of State resources for the benefit of one or other
candidate. In general, observers received far fewer reports that local government officials were
interfering in the election, and many reported that local administrations were attempting to
facilitate the process.
Resolution of Disputes Prior to the Repeat Second Round
Few complaints were filed after the 3 December decision of the Supreme Court. Mr.
Yanukovych filed a complaint with the CEC alleging that Mr. Yushchenko’s campaign had been
funded by American sources, which would be a violation of the electoral law. The CEC rejected
this complaint on 22 December, as no evidence of illegal contribution was provided.
Mr. Yanukovych also filed two complaints with the Supreme Court seeking to reverse CEC
resolutions regulating the printing of ballots. The first complaint sought reversal of the CEC
resolution that permitted both candidates to form observation teams for ballot printing at the two printing houses. The basis of the complaint was that the resolution was passed before President Kuchma signed the law allowing a second printing house for ballots.
The Supreme Court International Election Observation Mission, Page: 10
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Statement of Preliminary Findings & Conclusions
rejected the complaint because the CEC resolution did not harm Mr. Yanukovych, but in fact
benefited him since his representatives would be able to observe ballot printing.
Mr. Yanukovych also filed a complaint on the CEC resolution that determined the number of
ballots to be printed. The basis of this complaint was that the number of ballots to be printed -
38,113,075 - would be insufficient. Mr. Yanukovych’s representative argued that the number of
ballots should be based on the number of voters on voter lists used for the second round of
voting instead of the lists used for the first round, and that this required a higher number of
ballots to be printed. The Supreme Court rejected the complaint because the number of ballots to be printed was the same as the number printed in the first round and because there were more than 10,000,000 unused ballots in the first and second round of voting.
A complaint was filed with the Constitutional Court by 46 Verkhovna Rada deputies challenging
the 8 December amendments to the electoral law. The complaint claimed that the amendments
restricted suffrage rights of citizens and freedom of movement by limiting the use of mobile
voting and absentee voting certificates. The Constitutional Court heard the case on 23 and 24
December.
On 25 December, the Constitutional Court ruled that the amendments were constitutional, with
the exception of one amendment that limited the right to vote by mobile ballot to disabled
persons who are unable to take care of themselves and require daily assistance from others. The
Constitutional Court ruled that this provision was too restrictive and ordered the CEC to take
necessary measures for implementation of the Court’s ruling.
In response, the CEC issued a clarification the same day stating that mobile voting would be
available to any voter who could not come to the polling station on his own. The Yanukovych
campaign filed a complaint the same day with the Supreme Court challenging the CEC
clarification. The Supreme Court upheld the CEC decision adopting the clarification.
The Media Following the seriously flawed 21 November election and the holding of mass demonstrations, many of the most significant media outlets started to redress the substantial imbalance in the content of their broadcasts dealing with political issues. In sharp contrast to previous practice, opposition politicians were given direct airtime to challenge the views of political incumbents.
On 4 December, the OSCE/ODIHR EOM recommenced its monitoring of six nationwide TV
channels, two channels with partial nation-level coverage, and nine daily newspapers.4
The OSCE/ODIHR EOM’s media monitoring findings showed that a number of significant
changes in the media’s presentation of political and electoral issues have occurred. In the three
weeks preceding the repeat runoff, the media actively covered the activities and opinions of the
two candidates in a much more balanced manner than during the period preceding the two
previous rounds of voting.
Overall, the media offered voters a diverse range of views. Previously, temnyky (guidelines on
the content and presentation of news items) were used to censor or manipulate information and
constrain the public’s free access to balanced information. Journalists reported to the
4 Television: State-funded UT1, Private Inter, 1+1, ICTV, STB, Novy Kanal, TRK Ukraina and Channel 5. Newspapers: State Uriadovy Kurier, Golos Ukrainy, Private Facty I Komentarii, Segodnia, Den, Silski Visty, Ukraina Moloda, Zerkalo Tyzhna and Vechirni Visti.
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Presidential Election – Repeat Second Round, Ukraine, -- 26 December 2004
Statement of Preliminary Findings & Conclusions
OSCE/ODIHR EOM that the main TV networks no longer followed these “guidelines”. Indeed,
most TV channels monitored by the EOM made a clear effort to serve as a forum for discussion,
in which opinions might be shared and exchanged freely.
As Mr. Yanukovych had taken a leave of absence from his position as Prime Minister, he no
longer derived as much media attention in his capacity as a senior member of the Government.
Marking a significant break with its previous electoral coverage, the State-funded television,
UT1, generally offered candidates equal conditions to convey their message to the electorate.
UT1 complied with a CEC decision to allocate free airtime to both candidates for campaign
broadcasts. A televised debate between the two main contestants took place on UT1 and was
broadcast by several other TV channels. In a positive development, the format of the debate
provided both candidates with a real opportunity to directly exchange views and opinions.
The EOM's media analysis revealed that during the three weeks preceding the 26 December
election, UT1 provided Mr. Yanukovych with 57.5% of its political and election prime time
news coverage, of which 35% was evaluated by the OSCE/ODIHR EOM as positive and 57%
neutral in tone. During the same period, Mr. Yushchenko received 42.5% of similar airtime, of
which 28% had positive and 60% neutral connotations.
The two most popular private TV channels, Inter and 1+1, offered viewers a plurality of views.
In its prime time news programmes, Inter presented balanced and impartial coverage of both
contestants. While 1+1 provided both candidates with a similar amount of airtime, it granted Mr. Yushchenko more favourable coverage. Other private TV chan
posted by Editor @ 1:00 AM
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