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Analysis: Measures proposed by the co-facilitators in the EP mediated Inter-Party Dialogue will not ensure conditions for fair and free elections

CRTA analyzed the Measures to Improve the Conduct of the Electoral Process, proposed by the co-facilitators in the course of the Inter-Party Dialogue mediated by the European Parliament, published on 18 September 2021. One segment of the proposed measures comes as a result of a political agreement – these measures constitute temporary solutions, and go beyond the existing legal and institutional framework. Assessing their enforcement will, therefore, require analzying their actual effects in practice, during the observation of the upcoming elections. The following analysis is strictly focused on legal solutions which are in line with the existing legal and institutional framework, and their possible reach and compliance with domestic legislation, as well as with international standards and recommendations by domestic and international observers. 

Should the proposed measures be fully implemented, that would constitute a limited improvement, but would be insufficient to enable conditions for free and fair elections according to international standards. Taking into consideration the preconditions for fair elections – equality of campaign participants and equal media presence – CRTA is of the opinion that these measures would not have an effect on achieving the equality of election participants. One of the proposed measures, regarding the conduct of commercial broadcastformulateders during the campaign, could even lead to the lowering of the existing standards, contrary to current law. Finally, it is not possible to assess the effects of a certain number of measures, relating to the abuse of state office and resources, as well as pressure on voters, due to their insufficiently accurate definitions. 

Analysis Summary 

The proposed measures are defined at various levels of precision, ranging from very broad to very particular, which is why it is not possible to assess in advance the effectiveness of each individual measure. Where the solutions were defined in detail, it was possible to give a more comprehensive assessment, while the broad proposals leave plenty of room for various forms of their implementation. 

One of the main conclusions of this analysis is that the proposed measures, from the viewpoint of improving the quality of conditions for free and fair elections, address the urgent problems identified by domestic and international observers in a limited manner – above all in relation to media inequality, abuse of public office and resources, and pressure on voters – and in that respect, CRTA assesses them as insufficient to improve electoral conditions. 

One part of the measures refers to implementation of the already existing laws or statutory regulations and legal instruments. These measures refer, above all, to use of the existing Law on Electronic Media, as well as the current instruction by the Ministry of Public Administration and Local Self-Government which envisions the publication of data from the Voters Register before and after their completion. This group also includes the measure which envisions the independent verification of the Voters Register following international methodology, and on which the Working Group for the Verification of the Voters Register started work already in 2019, however that work was halted on an institutional level at the beginning of 2020. Still, it is necessary to revise the bodies which would be responsible for this process, and which is envisioned in the adopted measure, since the independent revision of the Unifed Voter Register could not be simultaneously carried out by the same body which is in charge of maintaining it – the Ministry of Public Administration and Local Self-Government. Or rather, the revision implemented as such could not be called independent.  

We stress that one of the measures would even have the negative effect on election conditions because it lowers the already existing standards and is contrary to the Law on Electronic Media. The reason for it is that, instead of a legally binding bylaw, which closely defines the way to secure equal and non-biased representation of electoral candidates, the behaviors of commercial media services providers would be subject only to recommendations by the Regulatory Authority for Electronic Media (REM). Recommendations, as a form, do not envoke legal obligations and consequences, and are therefore not legally binding, meaning that commercial media service providers could implement them, but are not obliged to. Also, what we are seriously concerned about is that this is the second time that the Inter-Party Dialogue relativizes the legal obligations of commercial media. CRTA’s media analysis shows that commercial TV networks with national coverage are for the most part vehicles of biased reporting to benefit the authorities. We bring to your attention the fact that the Ministry of Culture and Information in January of 2020 published an opinion which pointed out that REM was acting against the law by adopting statutory regulations for only public service broadcasters, while issuing non-binding recommendations for commercial broadcasters. 

As for the pressure on voters, the document has recognized the need for better coordination amongst competent institutions, to “secure that the authorities have enough of established procedures to prevent and investigate the pressure on voters, including those employed in state-affiliated institutions or enterprises affiliated with the state.” However, it remained unclear which of the institutions would be included in coordination, as well as in which way the coordination would be implemented and what are the expected outcomes.

Even though the problem of abuse of public office and resources was recognized, the document does not offer any concrete solution. The document, then, is not addressing the issue of the elected officials who are also candidates campaigning in the media, although this was recognized as a leading problem in numerous international and domestic reports and recommendations. 

And despite the fact that regulating thestatus of election observers was envisioned by the law, the document does not anticipate what authority will be guaranteed to observers by the law and whether those would be expanded (for example, by granting them rights to file objections) in relation to the observer’s authorities which were in existing statutory regulations of Republic’s Election Commission (REC).

The agreement envisions the measures that could be connected to only eight of the 29 recommendations from OSCE/ODIHR observers’ report on 2020 parliamentary elections. However, the document does not give sufficiently concrete steps in them being carried out. This is foremost in regard to preventing the abuse of elected officials’ campaigning, while the problem of pressure on voters was not fully explored by the proposed measure. In area concerning media, the proposed measures explored two of the ODIHR recommendations, and incompletely, primarily because the role of Regulatory Authority for Electronic Media, and also the reporting by commercial media services providers during the campaign, were not adequately addressed with the measures. When it comes to electoral administration and voter rolls, the adopted measures completely covered the three ODIHR recommendations.

Complete analysis is available here.