Implementation of OSCE/ODIHR Recommendations to Russia Following 2003-2018 Federal Elections

In its six final election observation reports, which covered presidential elections in 2004, 2012, and 2018 and State Duma elections in 2003, 2011, and 2016, the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR) published 139 recommendations on how to improve the conduct of elections in Russia. ¹ In the run-up to the State Duma elections in 2021, Russia has fully implemented just over 10% of the Office's recommendations. Somewhat more than one-third of recommendations can be deemed to have been partially met. More technical and procedural recommendations, as well as those related to operational and technological capacities of election commissions, have been typically tackled more promptly.

However, despite relatively frequent amendments to the legal framework for elections, the majority of OSCE/ODIHR recommendations have not been addressed through changes in laws or practice. In many cases, this includes priority recommendations and those pertaining to the guarantees of and exercise of fundamental rights and freedoms during elections.

A considerable number of recommendations are reiterated in the Office's reports on several elections, with occasional minor editorial adjustments. This testifies to the fact that the most relevant recommendations from previous ODIHR reports were never met. By including repeated recommendations, the OSCE/ODIHR signals the significance that it attributes to these issues for the quality of an electoral process indicates its firm position and willingness to see progress on them.

For example, the Office is consistent in outlining the inequalities in election campaigns and a grave problem of misuse of administrative resources, pressure on voters, and coercion to vote. The lack of independence of the election administration constitutes another central issue in OSCE/ODIHR reports. The Office also continuously points to insufficient media freedom and meddling of officials in media editorial policies, underscoring the need for independent oversight of media coverage to ensure equality among candidates.

Similarly, infringements on freedoms of expression, assembly, and association constitute a particular concern for election monitors. Among others, the 2018 European Court of Human Rights judgment recognizing political motives behind the persecution of Alexey Navalny by Russian authorities since November 2018 underscored the presence of restrictions on the exercise of freedom of assembly and association by citizens, something highlighted in OSCE/ODIHR reports in 2011, 2016 and 2018.² The imprisonment of Navalny in 2021 and the ongoing persecution of his supporters lend this recommendation even more weight.

Among the five most frequently reiterated recommendations in OSCE/ODIHR reports are:

• To simplify and codify the election legislation to clarify ambiguous provisions, especially concerning candidate registration, campaigning, and media coverage, and to facilitate understanding of the legal framework by participants in elections and by ordinary citizens;

• To prevent the misuse of administrative resources and to ensure an equitable campaign environment;

• To ensure full impartiality and independence of election commissions and to provide a more balanced representation of eligible political parties in them;

• To establish an independent oversight body, mandated to oversee the conduct of media during campaigns, including balanced and equitable coverage of and fair access of election contestants to media;

• To allow for direct accreditation of non-partisan citizen election observers. ³

All recommendations can be divided into 14 thematic groups. Their implementation is analyzed in ensuing subsections.

1. Legal framework and principles of democratic elections

Most significant recommendations, consistently repeated in OSCE/ODIHR reports since 2011, are targeting state authorities, electoral bodies, and other state institutions and highlight the need to adhere to principles of democratic elections such as guarantees of freedom of association and assembly, free exercise of the will of citizens, and of ensuring a competitive political environment. Most of these recommendations were not implemented. On the contrary, the situation in these areas has deteriorated over the last 14 years.

Almost as persistently, reports suggest that the law on political parties should be revised to remove numerous restrictions. The recommendation to lift a number of discriminatory norms against political parties has been met in part; however, practical possibilities remain to deny registration to parties for political reasons. It is also still prohibited to create parties with regional or ethnic identities due to alleged concerns about possible separatism.

The recommendation to streamline and simplify the election legislation, including through codification, has been systemically repeated among key recommendations since as long ago as 2003. While it is yet to be fully implemented, welcome efforts have been undertaken in recent years by a range of state institutions, academia, and the non-government sector to develop a draft unified election code. ⁴

2. Misuse of administrative resources and official position

Since 2003, OSCE/ODIHR reports feature recommendations calling for decisive measures against abuse of administrative resources, conflict of interest for candidates holding official positions, and pressure on voters and media. Only one recommendation that encouraged the adoption by the CEC of regulations and instructions on the involvement of local and state administration officials in the conduct of elections has been partially implemented. Some positive influence of the CEC has been noted by citizen observers in this respect in particular after the reshaping of the CEC in 2016 and its leadership's attempts towards reclaiming public trust in the electoral system.

Yet, the situation has not improved fundamentally. The abuse of official position and public resources during electoral campaigns to serve the interests of some candidates remains a crucial problem. It breaches the principle of equality of candidates and parties and distorts competition at all levels of elections. The 2018 presidential election has shown that administrative resources play a key role in promoting candidates backed by the executive.

3. Eligibility to run

Since the early 2000s, the Office has been making recommendations to address increasingly unequal conditions and selective criteria for the registration of electoral participants. They have been calling for an equal and unbiased approach to candidate registration, simplification of registration and signature verification, and revision of a number of limitations of both active and passive electoral rights. Out of them, four have been partially implemented by now, e. g. the number of signatures necessary to nominate a presidential candidate has been reduced; candidates are allowed to correct mistakes in registration documents since 2006, and single-district elections have been reintroduced allowing for independent candidacy. In addition, in recent years, election officials have spoken out in favour of further simplification and 'modernization' of provisions on signature collection. ⁵ Among concrete steps in this direction, the procedures were somewhat eased through May 2020 legal changes allowing for the collection of a fraction of support signatures electronically, through a single portal of state and municipal services. ⁶

However, many of these changes are mostly formal and do not qualitatively improve conditions for potential candidates. For instance, in 2018, the OSCE/ODIHR stated again that 'the blanket disenfranchisement of citizens serving prison terms regardless of the severity of the crime committed should be reconsidered to ensure proportionality between the limitation imposed and the severity of the offense'. Yet, restrictions of the right to be elected remain disproportionate to offences committed.

Notably, the situation changed from bad to worse with April 2021 amendments, as new disproportionate limitations of the passive electoral right were added in cases of about fifty criminal offences of medium severity. Under this restriction, candidates with an expunged criminal record remain disqualified for five years from the record's removal or clearance, which itself requires three years. Furthermore, the residency requirement for presidential candidates was increased from 10 to 25 years and the requirement of permanent residence was introduced for State Duma candidates. Both measures are at odds with international good practice and past recommendations. Finally, restrictions based on dual citizenship and past and current residence in another state have been retained despite past recommendations.

4. Campaigning and media

Most OSCE/ODIHR reports keep repeating a significant bulk of recommendations calling for the strengthening of editorial and financial independence of state media, for the decriminalization of libel and insult of state officials, and stressing the need of ensuring a balanced and equitable coverage of electoral campaigns by all state-controlled media. The 2018 OSCE/ODIHR report has again stated a need for an independent oversight body, mandated to oversee free, impartial, and fair access of election contestants to state-controlled broadcasters. In addition, the OSCE/ODIHR points to the right to express views, including campaigning for a boycott and through peaceful assembly. The majority of these recommendations have not been fulfilled over the last 15 years.

A couple of recommendations pertaining to the institution of a legal requirement to allocate equal amounts of free airtime as well as to label paid campaign materials and to ensure that the CEC and other regulatory bodies oversee media conduct can be deemed implemented and partially implemented, respectively, in so far that these aspects are regulated in law. Yet, implementation in these areas remains inconsistent in practice. Two recommendations from the 2003 report that called for clarification of media obligations in the context of relevant Constitutional Court rulings and for repealing a requirement for some parties to reimburse costs of free airtime can be regarded as having been addressed through changes in law and practice.

In March 2021, the CEC was granted legal authority to regulate the production and distribution of campaign materials on the Internet and to request an intervention by Roskomnadzor, the Federal Service for Supervision of Communications, Information Technology and Mass Media, in cases of illegal campaigning online. Given the already broad authority of Roskomnadzor to block websites without a prior court ruling - a practice that is at odds with international obligations and challenges freedom of media⁷ - the new authority granted to the election administration may lead to further restraining and narrowing of campaign opportunities.

5. Financial transparency of electoral campaigns

Since 2003, the OSCE/ODIHR has made two relevant recommendations calling for improving the transparency of campaign financing, including requiring the disclosure of sources of funding of entities making donations to parties and candidates' campaign funds. These recommendations remain largely unimplemented despite some marginal improvements in this area. This includes the introduced requirement to disclose payments of membership fees over a certain limit and the availability of reporting templates, in line with an aspect of the 2016 recommendation.

The effectiveness of regulations and oversight of campaign financing continues to be affected by insufficient powers of election commissions to counter shadow funding and varying and inconsistent requirements for reporting at various levels. In addition, illicit funding and activities in support of parties and candidates by non-transparent politically affiliated foundations, associations, movements, non-commercial and commercial organizations, including from abroad, constitute a major problem and remain underneath the radar of regulators and oversight bodies. ⁸ All this distorts the level playing field for contestants and facilitates shadow and covert funding of electoral campaigns, including by state-affiliated structures, something repeatedly emphasized by independent observers.

6. Guarantees of political rights for women, ethnic minorities and displaced persons

Three of the OSCE/ODIHR recommendations related to the participation and representation of women were addressed to political parties, which have been called upon to include women on more electable positions higher in party lists and to pay greater attention to issues of relevance to women in electoral campaigns. These recommendations have not been duly embraced during subsequent elections and Russia continues to have a comparatively low level of representation of women in the legislature. ⁹

In contrast, the situation with electoral rights of displaced persons has improved over the last 15 years. Among other measures, the possibility exists for persons without registration to vote at special polling stations. In addition, the re-introduction of single-seat races during State Duma elections and the lowering of the electoral threshold had some positive impacts on the possibilities for the election of ethnic minorities. However, the issue of hate speech in election campaigns, including targeting minorities, remains unresolved.

7. Voter registration and voter lists

The quality of voter registration is assessed overall positively by international observers. Notably, voter lists became more accurate after upgrading voter registration procedures in line with 2003 and 2004 recommendations. In addition, the ongoing process of development and implementation of the Single Federal Register, which is aimed at unifying all population records, might contribute inter alia to further streamlining and simplifying the management of voter lists and records by the election administration. ¹⁰

These developments notwithstanding, the recommendations to improve transparency in the handling of voter lists remain unaddressed. In particular, in its 2018 report, the OSCE/ODIHR has pointed out that 'in order to enhance transparency, the CEC should be legally required to publish the total number of voters registered prior to and on election day. With considerable discrepancies in the numbers of voters ahead and after election day noted during the 2018 presidential elections, citizen observers have pointed out that the lack of detailed public information and clarity on the numbers of voters may have left room for manipulations and detracted from confidence in reported figures. ¹¹

Regarding the eligibility to vote, the restriction of the right to vote based on mental disability has been maintained despite past recommendations and contrary to international obligations.

8. Voting process

Recommendations to improve the secrecy of the vote featured in OSCE/ODIHR reports recurrently, both in the 2000s and after the 2016 and 2018 elections. This included calls to introduce additional secrecy safeguards, to prevent group voting, to protect secrecy during mobile voting, and to emphasize its significance in the training of commission members and voter education. Another recommendation called for guaranteeing secret voting whenever new voting technologies are used, in particular in light of testing of online voting technologies since 2019. While the importance of secrecy is emphasized in information materials and campaigns by the CEC, the secrecy of the vote is still routinely violated; related recommendations could thus be considered partially implemented.

OSCE/ODIHR reports also continuously raise concerns regarding mobile voting, calling for clearer and more stringent regulations and guarantees to ensure integrity. These problems remain unresolved, as numerous complaints by observers and other stakeholders regarding genuineness and voluntariness of voter requests for voting at home continue to be reported.

Positively, the recommendation to abandon the practice of setting up special polling stations immediately prior to the voting day can be deemed fully implemented. Similarly, the recommendation to better regulate the use of absentee ballots was addressed by completely abolishing this practice and replacing it with voting at a place of temporary stay. The roll out ahead of the 2018 election and the increasing use of the "Mobile Voter" application, which allows voters to register to vote at any polling station across the country, is seen as having considerably simplified re-registration for voters and streamlined the management of voter records by the respective authorities.

The recommendation to pay special attention and to improve access to voting for voters with disabilities has been partially fulfilled. The CEC undertakes welcome efforts to increase the number of wheelchair-accessible polling stations; however, the realization of this recommendation in practice is often challenged by insufficient resources at the local level.

9. Vote count

OSCE/ODIHR recommendations related to vote counts emphasize persistent issues with the due implementation of established counting procedures by election commissions and call for enhanced attention to these aspects, including in instructions and training for commission members. More than half of these recommendations can be considered partially implemented.

However, despite the fact that members of election commissions are comprehensively trained, the analysis of video records from the 2018 presidential election reveals that the procedures of vote counting, validating results, and the drafting of results protocols were in most cases not observed. It shows that recommendations to simplify the respective provisions in the election legislation were not followed. Instead, in recent years, the legislation has become even more confusing in this respect. Unimplemented also remains the recommendation to supplement results protocol with a line to include the number of voters added to the voter list on the voting day.

In its recommendations, the OSCE/ODIHR also emphasizes the importance of acting on any malpractices in a decisive and timely manner and of holding persons responsible for them accountable. The CEC has reported that between 2016 and 2020 over 50 members of territorial commissions and some 300 polling station commission members were dismissed due to established irregularities. ¹² This notwithstanding, domestic observers have been noting insufficient enforcement, a low number of cases of disciplinary measures being applied, and commissioners involved in irregularities retaining their positions or being reappointed. ¹³

10. Independent citizen observation

Despite OSCE/ODIHR recommendations to eliminate barriers for the involvement of citizen non-partisan observers in the electoral process, the conditions for independent observation have considerably worsened since 2003. Various restrictions have been regularly added to the election legislation to further limit the ability of citizen observers to monitor the election process. The cumulative effect of limitations imposed makes citizen oversight of elections excessively cumbersome and in some cases virtually impossible.

The provision enabling NGOs to delegate observers to polling stations was removed from the Russian legislation in 2005. Since then, Russian citizens are forced to search for other ways of observing electoral processes – they can receive accreditation as election contestants' proxies or representatives of the media.

The 2017 provisions for the nomination of observers through state-controlled "civic chambers" cannot be considered as a substitute for genuine independent citizen election observation and therefore cannot be seen as addressing OSCE/ODIHR recommendations to facilitate citizen observation. ¹⁴

11. Composition and work of election commissions

This group of recommendations points to the need to improve the impartiality and independence of election commissions from executive bodies, to change the principles of formation of election commissions, and to enhance the transparency of their work, including in the finalization and publication of election results.

Some recommendations, e. g. on transparency of handling of absentee voting and on preparing manuals for precinct election commission members, were fully met. Recommendations on publishing result protocols online and allowing access to election commissions' meetings for certain persons were partially implemented. At the same time, the problem of dependence of lower-level election commissions on executive bodies remains. Furthermore, the new composition of the CEC, which was established in early 2021, also raises some concerns about the independence of this body.

12. Technological equipment of election commissions

Out of the two recommendations related to the use of technological solutions by commissions, one has been fully implemented through the introduction of transparent ballot boxes and by enhancing the use of ballot paper processing systems (KOIBs). However, the recommendation regarding independent certification of electoral software and equipment remains partially fulfilled.

In preparation for the 2021 State Duma elections, the CEC has conducted May testing of its remote electronic voting system, which is anticipated to be used in 6 regions. Apart from challenges posed to the principles of secrecy and external 'observability', citizen observers continue to note insufficient transparency around the technological solutions used and a highly centralized management of the system, with voting taking place through state servers and the blockchain network, controlled by the authorities or state-backed companies. ¹⁵

13. Complaints, investigations, and sanctions

Important recommendations on the need to investigate cases of implausibly high turnout in a number of regions to prevent repeated violations first appeared in OSCE/ODIHR reports in 2004. Since 2011, reports have been urging a thorough investigation into and legal accountability for all cases of electoral violations, including potential prosecution of commission members. Moreover, the Office recommended personal administrative and/or criminal liability for participating in multiple voting or ballot box stuffing after the 2012 campaign. Ahead of the 2021 parliamentary elections, the recommendation to introduce administrative or criminal prosecution of individuals for electoral fraud has been fully implemented.

The recommendations to investigate cases of abnormal voter turnout have been partially met. However, there appear to be no attempts made to investigate a "peculiar electoral culture" in some 15 regions where voting traditionally produces abnormal results. This became visible when analyzing and comparing videos from polling stations in the 2018 presidential elections with the results published in the media, with some irregularities having been acknowledged by the CEC itself. Nevertheless, this has not led to any real investigation or punishment of perpetrators. The 2018 report reiterated the recommendation to increase transparency in the process of investigating complaints and appeals.

14. Police activities at polling stations

This group of recommendations can be considered partially implemented. It contained only two factually identical recommendations calling for a more detailed regulation on law enforcement in polling stations. However, the problem of insufficient understanding by police officers of rights and obligations of commissioners, observers, candidates, and their proxies remains. Moreover, police officers remain very reluctant to duly examine and respond to observers' and voters' reports of violations.

Conclusion

Despite frequent changes to the election legislation and marginal progress in some areas, the majority of OSCE/ODIHR recommendations have not been implemented. The opportunities were not ceased by the responsible institutions in Russia over several cycles of elections to follow up on suggestions of improvements and to bring the legislation and practice in closer compliance with international standards and good practice. Ahead of the 2021 parliamentary elections, many fundamental and urgent issues need to be addressed. First and foremost, they concern the rights of citizen observers, a level playing field for candidates and equal access to public media, and the misuse of state resources and official powers.

¹ https://www.osce.org/

² http://hudoc.echr.coe.int/

³ Notably, this recommendation has been repeated in the report on the 2018 presidential election, after instituting the nomination of observers by "civic chambers", since the latter are predominantly formed by the authorities and are not independent of the government.

⁴ For instance, in 2019, the Russian Foundation for Free Elections has published a draft unified election code developed on the initiative of the Central Election Commission (CEC) in cooperation with the Moscow State University, which was reported to undergo public consultation and review. The CEC foresaw the possibility of its adoption already ahead of the 2021 State Duma elections.

⁵ https://rg.ru/

⁶ http://www.cikrf.ru/news/cec/46187/

⁷ See OSCE/ODIHR Final Report on the 2018 presidential election, p. 15. In February 2019, the OSCE Representative on Freedom of Media expressed concerns with then-draft legislation granting the regulator further powers "to increase the supervision of Internet control and traffic, manage the public communications networks, and restrict access to information deemed illegal under Russian law".

⁸ See EPDE's Money and Politics - Need for New Rules of the Game, p. 10.

⁹ Lake https://www.statista.com/

¹⁰ The law mandating the establishment of a Single Federal Population Register has been adopted in May 2020

¹¹ https://www.asi.org.ru/

¹² http://www.cikrf.ru/news/cec/48675/

¹³ https://www.golosinfo.org/articles/145204

¹⁴ See EPDE's Conditions for Citizen Election Observation Ahead of the 2021 Duma Elections, p. 5.

¹⁵ https://www.russian-election-monitor.org/