Providing for the Inescapable Punishment for Electoral Fraud: Analysis of Proposals to Electoral Code

Electoral process in Ukraine is still associated with considerable breach of law, when political parties and candidates resort to illegal electoral techniques, whereas electoral subjects continue to commit massive fraud, and fail on the generally accepted election standards.

Draft amendments to the Code on Administrative Offense and to the Criminal Code were developed by the experts from the Ministry of Internal Affairs of Ukraine, Chief Investigation Board of the National Police of Ukraine, and by experts from the Civil Network OPORA. The process of writing the draft law provides for a long-term discussion of the issues to engage broad public.

Changes to the Code of Ukraine on Administrative Offense

Article 212-10 of the CUoAO

The amount of fines was increased for breaking the rules of pre-election campaigning, from UAH 1,700 to UAH 3,400 for citizens, and from UAH 3,400 to UAH 5,100 for officials. The current amount of the penalty is from UAH 510 to UAH 850 (from UAH 850 to UAH 1,360 for officials); in the current volumes spent for election campaign, an electoral subject may find it more convenient to be charged with the penalty rather than follow the election law rules.
The argument provided by the Chief Scientific Expert Department of the Verkhovna Rada on the amount of penalties is not relevant in this case. Firstly, the example they provided in their conclusions describes different actions in terms of objective part (part 1 of Art. 158-1 of the CC – receiving a ballot paper or a voting ballot at a referendum by a person not entitled to receive the ballot paper without presenting any IDs, among other things, and part 1 of Art. 212-10 of the CUoAO – breaking the restrictions on pre-election campaigning). Therefore, strengthening the sanction in the CUoAO will not lead to any complications in distinguishing between the two types of fraud. Secondly, a ballot paper may be issued to a voter by an election commission member, and shall be qualified under part 2 of Article 158-1, which sets the sanction of imprisonment for five to seven years. Thirdly, due to the unproportional nature of the sanction under part 1 of Article 157-1 of the CC for receipt of a ballot paper by a person not entitled therefor, the draft law proposes to set a punishment therefor in a form of imprisonment of up to two years.
Article 212-10 received an additional part two; it sets an administrative liability for the indirect bribery as a separate form of breaking the campaigning rules that has a higher degree of social harm.
Distinguishing an administrative and criminal liability for the indirect bribery was arranged according to the bribe amount; in the event it does not exceed the 3% of the minimum wages for able-bodied persons, it is in for administrative liability. In the event the amount is exceeded, a person shall be criminally liable under part 3 of Article 160 of the CC.
Administrtaive liability is not provided in case citizens and legal entities are given campaigning materials produced at the cost of election fund, and such that include visual depiction of party symbols and campaign branding, mention a name or present a picture of the candidate running for elections, such as posters, leaflets, calendars, notepads, pens, lighters, matches, badges, pins, USB-stickers, bannerets, flags, books, bags, T-shirts, caps, scarves, umbrellas, or other campaigning materials which cost does not exceed the 3% of minimum wages for able-bodied persons.
At the same time, providing voters, referendum participants, companies, institutions, and organizations with food products, alcoholic beverages, and tobacco products entail criminal liability under Article 160 of the Criminal Code of Ukraine, As to the criminalization of an indirect bribery by offering food products, alcoholic beverages, and tobacco products, it shall be mentioned that the practices of other countries (such as the Republic of Moldova) include similar provisions, that have a preventive action in practice.

Article 212-15 of the CUoAO

It provides for the possibility to apply an additional sanction under Article 212-15 of the CuoAO, such as the confiscation of financial (material) support to run the election campaigning, the campaign for the all-Ukrainian or local referenda, since current version of the Article only sets the confiscation of the amount of the contribution supporting a political party.

Article 212-22 of the CUoAO

The current law shows the inconsistency between the provisions of part 6 of Article 118 of the Electoral Code (according to it, a voter shall cast a filled ballot paper into a ballot box, while securing a secrecy of ballot) and the CuoAO that does not set any administrative liability for showing the ballot paper, and causes the need to qualify the actions as breaching the campaigning rules. Moreover, the qualification of such a violation under Article 212-10 of the CUoAO is complicated, in the event when the demonstration is accompanied with calls not to vote for a certain candidate (for example, a case on holding responsible the RSA head in Zhytomyr Oblast, and a city mayor of Zhytomyr, who exposed their ballot papers in a polling station). Indeed, the demonstration, especially as shown by a public official or a candidate in front of the media, may have a significant impact on the expression of will by citizens. Part 6 of Article 118 of the Electoral Code imposes an obligation on a voter to secure a secrecy of their ballot in a polling station, which noncompliance has the degree of social harm that shall be administratively liable.
Thus, the liability for intentional public disclosure of the voting results by a voter, or by a participant of a referendum, through demonstrating them in a polling station, needs regulation in a separate article of the CUoAO, or can be included as part two of Article 212-10 of the CUoAO.
The liability for public disclosure (demonstration) by a voter of their voting results only concerns the cases of disclosure within the polling station, rather than outside the station, or in social media, and entails the fine from UAH 1,700 to UAH 3,400. For public officials or civil servants, the amount is from UAH 3,400 to UAH 5,100.

Article 212-23 of the CUoAO

In 2019, under Article 158-1 of the CC, 31 sentences were issued, whereas 15 of them concerned cases of voters hiding and destroying the ballot papers they received, for mischievous reasons, rather than motivated to forward the ballot paper to another person. In all the mentioned cases, the liability was imposed in a form of a fine. In nature, the offense did not entail a high degree of social harm. In such cases, it would be more relevant not to apply the measures stipulated by the criminal procedural law (that provide for impossibility to detain a person and confiscate their things and documents without entering the data into the Unified Registry of Pretrial Investigations). On the other hand, it would make more sense to hold a person to administrative liability, through filing a protocol by representatives of patrol police on the site, with its further forwarding to the court.
Thus, the draft provides for an administrative liability for hiding or destroying a ballot paper or a voting ballot at a referendum, or taking it outside the polling station, which entail penalization in the amount from one to two hundred non-taxable minimum incomes of citizens. As of today, the respective actions entail criminal liability provided under Article 158 of the CC of Ukraine (illegal use of a ballot paper).
The technical comments from the CSED about the need to add to Article 212-23 of the CUoAO the words “a voting ballot at a referendum” shall not be an obstruction to approve a draft law in the first reading, and may be taken into account by introducing technical amendments between the first and the second readings.

Article 212-24 of the CUoAO

It provides for administrative liability for obstruction to the activities of electoral subjects when exercising their powers and/or administering electoral procedures, which entails penalization on citizens in the amount from fifty to a hundred non-taxable minimum incomes on citizens, and from a hundred a hundred and fifty of non-taxable minimum incomes on officials. As of today, the respective actions do not entail any legal liability, since the criminal liability is only provided under Article 157 of the CC of Ukraine, only set for obstruction to suffrage through foul means, coercion, destruction, or damage to property, or for threatening to commit any such action.
Any obstruction to an electoral subject in exercising their right, such as the possibility to attend a commission meeting, with account for restrictions under the law, the Electoral Code, shall be prohibited. However, it does not entail any liability. On the other hand, the violation involving an insignificant degree of social harm shall be referred to the administrative liability.

Article 221, 255 of the CUoAO

Changes to the Code of Ukraine on Administrative Offense empower the court to issue a resolution to hold liable under new Articles 212-23, 212-23 of the CUoAO. The persons who are entitled to file protocols on administrative offense under these Articles shall be the duly authorized law-enforcement officials (the National Police), a head, a deputy head, a secretary, other members of election commission / referendum commission, candidates, authorized persons, and official observers.

Changes to the Criminal Code of Ukraine

Article 55 of the CC

The Criminal Code sets for perpetrators of voting rights the additional punishment, such as an exemption of the right to be a member of election commission or the right to carry out activities related to elections. However, as of today, the ban shall only apply for the term of three years. As a result, a person convicted for committing a crime in the area of citizens voting rights may be allowed to actively participate in the following elections again (after 5 years). The provisions on strengthening a punishment in the form of exemption of the right to hold certain positions and carry out certain activities for the term of 5 years, have also been included into the new version of part 3-5 of Art. 157, Art. 158, part 2 of Art. 158-1, part 2 of Art. 158-2, Art. 158-3, part 2 of Art. 159, Art. 159-1, part 2-4 of Art. 160 of the CC.
The draft provides for the possibility to exempt of the right to hold certain positions or carry out certain activities, as an additional punishment for five years, in cases when a person was convicted for electoral fraud, set under Articles 157 – 160 of the Special Part of the Code.
The technical comments from the CSED about the need to add to part 2 of Article 55 of the CC the words “exemption of the right to carry out certain activities” shall not be an obstruction to approve a draft law in the first reading, and may be taken into account by introducing technical amendments between the first and the second readings.

Article 157 of the CC

Part 4 of Article 157 of the CC specifies that the illegal interference of a public official may be exercised not only through the illegal demand or order sent to the election commission, but can also be manifested in any other illegal form of influence, abusing the official position, on activities of an election commission member or a referendum commission member. The wording safeguards certain election commission members from the illegal pressure from their employers, creditors, or other persons who could exert pressure or any other illegal influence on individual commission members. Thus, it is stipulated that illegal interference of a public official, who abuses their occupational status, into the commission’s exercise of their powers, may be committed through any means, not only through illegal demands or orders, whereas the illegal interference of a public official may also extend to an individual member of election commission.
It highlights as an element of a crime, such as “evasion of a commission member from commission operations without valid reasons therefor.” Under the current version of the Article, the criminal liability may be imposed on a person who has multiple times evaded from the duties assigned by the commission (e.g., failed to deliver the personal invitations to voters), or failed to attend one meeting of the commission. Incurrence of criminal liability in such a case is not proportional to the degree of gravity and the consequences of the offense.
Under the draft, the liability is set only in the event of systematic evasion of an election commission member or a referendum commission member from their duties in the commission’s operations, or the evasion that jeopardized the election process; notably, it could disable the commission’s operations on election day, compromise the establishment of voting results at a polling station or a referendum station, results of the vote in the respective constituency, or establishment of election or referendum results.
The technical comments from the CSED about the need to add to part 5 of Article 157 of the CC (in the draft’s version) the words “referendum commissions” shall not be an obstruction to approve the draft law in the first reading, and may be taken into account by introducing technical amendments between the first and the second readings. In addition, following the discussion, upon the first reading, it is acceptable to reject a criminalization of a systematic evasion of the election commission member from their duties, but instead, introduce a criminal liability only for those cases that entailed or could entail possible harmful consequences for the election process.

Article 158 of the CC

Article 158, in the current version, includes various elements of the crime. That is why the falsification, counterfeit, stealing or destruction of electoral records, referendum records, a seal of the election commission or the referendum commission are proposed to be included into a separate article 158-3 of the CC of Ukraine. Including different elements of the crime into one article of the Criminal Code does not conform with legal technique, does not fully provide for the principle of clarity and understandability of the law, and causes complications for the regulatory enforcement.

Article 158-1 of the CC

The liability has been introduced for illegal casting of ballots; the punishment has been strengthened for illegal use of a ballot paper, a voting ballot at a referendum, for voting more than once; and for illegal casting of voting ballots, such as an imprisonment for up to two years (Article 158-1 of the CC of Ukraine).

Article 158-2 of the CC

It has been specified the provision of Article 158-2 of the CC of Ukraine on illegal destruction or damage to electoral records or referendum records in state archival institutions or in the Central Election Commission of Ukraine, after holding elections or a referendum.
It has been stipulated that electoral records, in the interpretation of Articles 158-2 and 158-3 of the Criminal code of Ukraine, include voting rolls, ballot papers, voting ballots for a referendum, all resolutions, protocols, acts of election commissions, applications or submissions of election commission members, of electoral subjects, or other documents received (filed) by election commissions and/or such that are submitted to election commissions during the election process, and shall be stored after holding elections in state archival institutions or in the Central Election Commission of Ukraine.
The technical comments of the CSED about the need to add to the title of the Article 158-2 of the CC (in the draft’s version) the words “or damage” shall not be an obstruction to approve the draft law in the first reading, and may be taken into account by introducing technical amendments between the first and the second readings.
As to other comments from the CSED, it shall be mentioned that currently Ukraine is lacking any acting law on referendum, that is why the definition “referendum records” cannot be transposed to the special law. However, in the event the draft law regulating the all-Ukrainian referendum is approved in the first reading, it is possible during this session, between the first and the second reading, to transpose the terms “electoral records” and “referendum records” to the text of the Electoral Code and to the respective draft law on referendum. There is the CSED comment that many electoral records are filed in several copies, and only those actions with the records can be classified as criminally liable that could affect the establishment of election (referendum) results. In this respect, it shall be noted that the Electoral Code currently provides for only four copies of vote count protocols establishing voting results that have the same legal effect. On the other hand, election commission members shall be given a document copy, while other electoral / referendum records shall be produced in one copy.

Article 158-3 of the CC

It has been distinguished between the signing of a vote count protocol by a head, a deputy head, a secretary, a referendum commission member before the completion of the vote count at a polling station (establishing voting results, election or a referendum returns), and the signing of the protocol other than at the commission meeting, and forging or illegal production of electoral records. For forging or illegal production of electoral records, a more severe punishment is established.
As to the CSED comment, it shall be emphasized that the current version of Article 158 sets the liability for having a commission member, a referendum commission member sign a vote count protocol at a poilling station or at a referendum station, a vote count protocol or referendum returns protocol before the final completion of the protocol, or sign the protocol other than at the election commission or a referendum commission meeting. The pre-term entry of data to the records, or signing protocols other than at the commission meeting is already the full body of a crime. The changes proposed by the draft law only focus on distinguishing the scope of responsibility for the pre-term entry of data to the protocol or doing so other than at the commission meeting (part 1 of Article 158-3 in the draft’s version) and counterfeiting and entering the deliberately unveracious data (part 2 of Article 158-3 in the draft’s version). Since the mentioned actions have a different degree of social harm, the amount of sanctions shall be differentiated, too.
It has been allocated to a separate part of Article 158-3 of the CC of Ukraine the things such as stealing, damage, hiding, or destroying seals of election commission, a referendum commission, a ballot box with the ballot papers, a voter roll or a vote count protocol at elections or at a referendum, about the voting results within a constituency (territorial, electoral district) at elections or at a referendum, about return of elections or a referendum, at elections or at a referendum, as well as ballot papers, ballots for voting at a referendum.
It has been stipulated the exemption from responsibility for a person, in the event they reported on the commission of a crime and contributed to its solving, willingly and before being held criminally responsible, but only in cases of signing the protocol before its final completion, as well as filing a protocol other than at the commission meeting, since they are classified as crimes with the lowest degree of social harm.
In addition, there will be a concept of electoral records, that will include, among other things, the submissions on commission members, and documents for candidate registration. Therefore, in case of falsifying the documents, and/or having a party representative enter therein the deliberately unveracious information, the person shall be liable for the falsification of electoral records.

Article 159 of the CC

The liability has been strengthened for breaking the secrecy of ballot in part of assigning an additional punishment, such as exempting of a right to carry out certain activities for five years (Article 159 of the CC of Ukraine).

Article 159-1 of the CC

The liability has been strengthened for breaking the procedures of financing a political party, a pre-election campaign / referendum campaign, in part of assigning an additional punishment in the form of a five-year ban on carrying out certain activities.
The phrasing of the article definition has been specified.
The definition of a “large size” term, which matters for distinguishing between administrative and criminal liability, has been reduced to the amount that does not exceed the maximum contribution established by the law to support a political party, or a maximum amount of financial (material) support to run the election campaign / referendum campaign.

Article 160 of the CC

The draft thereby expands the list of actors provided by parts one and two of Article 160 of the CC (in the draft’s version), through including to a new version of the Article candidates, members of election commissions, for accepting a proposal, a promise or receipt of improper advantage, as well as the liability of third parties for the proposal, promise, or granting to a candidate, to an election commission member the improper advantage for commission or failure to commit any action directly related to the exercise of their rights.
The statutory concept used in Article 160 of the CC in the draft’s version corresponds to the provision of Article 368 of the CC. That is why the draft takes a unified approach to the statutory regulation of accepting a proposal, a promise, or receipt of improper advantage by a person.
As to the comments from the CSED on the need to criminalize the activity of all electoral actors, such as proxies of candidates, the authorized persons of parties, or official observers, it shall be noted that they perform the official paid activity in favour of candidates and parties, and represent their interests, thus the concept of an improper advantage shall not apply to this type of payments.
As to reservations from the CSED on the fact that part two criminalizes bribery of even one voter, it shall be noted that in terms of social harm, it does not matter how many voters are offered the improper advantage.
It has been stipulated the liability for a promise or for offering to legal entities and to natural persons the money, or an improper advantage, either free of charge or on preferential basis, involving pre-election campaigning or mentioning the name of a party, a local party organization, or a candidate at the relevant elections.
The Criminal Code of Ukraine, the Code of Ukraine on Administrative Offense and the provisions of the Electoral Code on indirect voter bribery have been brought into conformity.
There is a new definition for the notion of improper advantage. It includes food products and alcoholic beverages, regardless of their cost, as well as monetary means, goods (except for campaigning materials produced at the cost and within the election funds), services, works, preferences, advantages, securities, credits, lottery tickets, other material or non-material assets which cost does not exceed 3% of the nonminimum wages for able-bodied persons, that are offered, promised, delivered to voters or received by voters on a free of charge or other preferential basis.
A significant novelty is the fact that giving to voters, to referendum participants, to companies, organizations or institutions, any food products, alcoholic beverages, or tobacco products, regardless of their cost, shall entails criminal liability.
Changes to the Code on Administrative Offense and to the Criminal Code establish that giving to voters, to referendum participants any posters, leaflets, calendars, notepads, pens, lighters, matches, pins, badges, USB-stickers, bannerets, flags, books, bags, T-shirts, caps, scarves, umbrellas, and other campaigning materials produced at the cost and within election funds, which cost does not exceed three per cent of the minimum wages for able-bodied persons, shall not present any social harm and cannot entail any legal liability.
Part 5 of Article 160 of the CC (in the draft’s version) provides that a person (except for a mastermind behind a crime) shall be exempt of criminal liability for bribery, in the event they voluntarily report on the crime and contribute to its solving.
The technical comments from the CSED about the need to finalize the phrasing of part 3 of Article 160 of the CC (in the draft’s version) and the expression of the “improper advantage,” which shall not be an obstruction to approve the draft law in the first reading, and may be taken into account by introducing technical amendments between the first and the second readings. The expression “materials of pre-election campaigning” may be transposed to the Electoral Code.