Today, before the upcoming Parliamentary elections scheduled for 26 October 2014, we observe increasing number of activities that have features of electoral violations. Thus, legislation establishing responsibility for indirect voter bribery should be urgently adopted. Both persons offering incentives for realization of voting rights and the voters themselves should be brought to responsibility. Civil Network OPORA calls MPs of Ukraine to urgently take into consideration and adopt the Law of Ukraine on Making Amendments to the Criminal Code of Ukraine (related to strengthening liability for violation of citizen voting rights). It is essential for bringing the election process in line with European standards.
On 7 October 2014, the Verkhovna Rada of Ukraine will consider Draft Amendments to the Criminal and Criminal Procedure Code of Ukraine # 4448a concerning inevitability of liability for the certain crimes against the basis of national security, crimes against public security, and corruption. Although the bill is going to be adopted, it doesn't cover voting rights violations. At the same time, on 20 May 2014, the Verkhovna Rada of Ukraine failed to consider the Draft Law on Making Amendments to the Criminal Code of Ukraine #4741 (related to strengthening liability for violation of citizen voting rights), which was introduced by the Cabinet of Ministers and put to the vote 11 times.
Civil Network OPORA calls MPs of Ukraine to urgently take into consideration and adopt the Law of Ukraine on Making Amendments to the Criminal Code of Ukraine (related to strengthening liability for violation of citizen voting rights). It is essential for bringing the election process in line with European standards. The Law should secure responsibility for voting rights violations and urge electoral subjects to adhere to free and fair election principles.
OPORA statement concerning the inevitability of liability for electoral violations
On 21 August 2009, the Criminal Code of Ukraine was published in the new wording [1], according to which the certain crimes against electoral rights violations became crimes of little gravity and crimes of average gravity. Having analyzed some cases of this category that were brought to the court, we may summarize that criminal liability for voting rights violations is quite rare. The certain types of violations against voting rights were not brought to the court at all. As a result of such liberalization, voting rights violations are committed more often, and the guilty are brought to liability more rarely.
On 20 May 2014, the Verkhovna Rada of Ukraine failed to include the Draft Law on Making Amendments to the Criminal Code of Ukraine #4741 (related to strengthening liability for violation of citizen voting rights) in the agenda, which was introduced by the Cabinet of Ministers and put to the vote 11 times.
The public was waiting this bill to be adopted at least before the Parliamentary elections. However, on 7 October 2014, the Verkhovna Rada of Ukraine will consider Draft Amendments to the Criminal and Criminal Procedure Code of Ukraine # 4448a concerning inevitability of liability for the certain crimes against the basis of national security, crimes against public security, and corruption.
The adoption of bill #4448a is definitely urgent. It introduces confiscation of property as punishment "for crimes against the basis of national security and crimes against public security", what will allow to confiscate the property of individuals convicted for the high treason, seizure of state power, and espionage. In case guilty representatives of Viktor Yanukovych government or individuals who assist to financing of separatists will be brought to responsibility, their property will be legally confiscated and nationalized. Today, the criminal cases are not even initiated.
At the same time, the draft law allows to exempt from liability for terrorist activities, particularly threats to commit a terrorist act, if a person voluntarily reported law-enforcement bodies about the crime before he/she is received information about being suspected in a felony, if such report helped to stop or expose the crime and avert danger to human life or health, cause significant property damage or other grave consequences, if such felony in not included in other classifications of crimes. The bill also allows to convict of a crime in absentia (is important for drawing to responsibility individuals staying abroad after events of February 2014).
However, despite the Parliament is trying to bring to responsibility those who have already committed crimes, it ignores public demands concerning prevention of electoral violations that are happening today.
We should remind that the voter bribery is not a separate type of crime now, but only a mean of hindering the use of voter rights. The bill #4741 establishes voter bribery as a separate crime, and provides responsibility for both individuals who give bribe and who take. According to the Draft #4741, the crime is accepting a proposition, a promise, or illegal incentive, both personally or for a third person, for committing or non-committing of any actions directly related to realization of voting right (refusal to vote, vote more than one time at a polling station (in elections or referendum), voting or non-voting for the certain candidate, handing the ballot paper (referendum ballot) to another person regardless of the person's voting and election results. The punishment for such crime, according to the Draft #4741) is a fee from 1700 to 5100 UAH, (what is much more than monetary incentives usually received by the voters), or restriction of liberty or corrective labor for up to two years.
According to the Draft #4741, a person who committed the bribery, promised or proposed illegal incentive for voting or refusal to vote, voting more than once at a polling station, or handing a ballot to another person, may be sentenced to restriction of liberty or deprivation of liberty for up to three years with no right to hold the certain positions or be involved into the certain activities from one to three years.
As for drawbacks of the draft, the wording "voting more than once at a polling station" is used again instead of wording "voting more than once in the election". It's important to strengthening liability for violation of the voting secrecy, handing or receiving the ballot contrary to legislation.
According to the Article 160(3) of the Draft, it shall be prohibited to provide institutions, establishments, or organizations with illegal benefits, or free commodities (except items bearing name, logo, or flag of a party, provided that the value of such items does not exceed three percent of the minimum salary), services, works as a part of campaigning efforts (in election or referendum). Thus, it establishes responsibility for providing assistance to educational establishments, religious organizations, and enterprises in campaigning purposes. Of course, if such campaigning is covered in the media advertising candidates, it's violation of the campaigning requirements. Sponsored repairs in the school don’t mean that all employees will vote for the candidate and, therefore, don't threaten realization of the voting rights. However, the Draft doesn't establish responsibility for indirect bribery, i.e. providing the voters free commodities (except items bearing name, logo, or flag of a party, provided that the value of such items does not exceed three percent of the minimum salary), services, works. As we can see, candidates or his/her campaigners who disseminate product sets or envelopes during meetings with voters (without campaigning to vote for or against the certain candidate), are not subject to criminal liability.
Of course, drawbacks of the Draft #4741 should be eliminated, but its urgent adoption is necessary to bring the election process in correspondence with European standards. The reason of such urgency is that electoral subjects don't show any will to follow the principle of free and independent election process, as long as there's no legal responsibility for violations.
[1] # 1616-VI on Making Amendments to some Laws of Ukraine on the Election of the President of Ukraine