Civil Network OPORA together with the Ministry of Internal Affairs and the National Police discussed improvement of law regulations ensuring adequate prosecution and accountability for electoral violations on the conference titled “Improving the legislative framework ensuring liability for electoral violations and the certainty of punishment”, which was held on Friday, 3 March.
According to the Parliamentary and Electoral Programs Coordinator of the Civil Network OPORA Olha Aivazovska, such events are goaled to develop a joint legislative initiative, suitable for implementation. The legislative initiative will be registered in the Parliament, she said. Ms. Aivazovska also said she hopes that non-governmental organizations and the government will find a common stand in development of the draft law, it will be adopted by the Verkhovna Rada and all the following elections will be held under a high-quality regulatory framework.
Deputy Minister of Internal Affair of Ukraine Tetiana Kovalchuk emphasized that it's important to improve fundamentals of the law and guarantee legitimate realization of the franchise by any citizen.
“It's hard to overestimate the importance of transparency and legitimacy in the election. This approach, to my mind, is the best for a comprehensive research of this topic,” – Deputy Head of the National Police of Ukraine Kostiantyn Bushuiev added.
OPORA's Analyst Oleksandr Kliuzhev presented amendments to the Criminal Code, particularly regulations concerning electoral violations, developed jointly with the Ministry of Internal Affairs. Mr. Kliuzhev has also described the problem with liability for nontransparent campaign financing and issuance of ballots without passport verification. The latter is, according to the analyst, the most widespread violation in the first elections to united territorial communities.
“The most widespread violations are not included in the statistics of successful investigations. For example, the voter bribery. The number of pre-trial investigations in voter bribery cases was the highest in 2015 local elections, and only 19 individuals were convicted,” – Mr. Kliuzhev said.
Legal Advisor of the Civil Network OPORA Olha Kotsiuruba mentioned about the violation of the voting secrecy. No one was held liable under this article according to the monitoring findings.
“According to the Article 159, the voting secrecy can be violated only by a third person. A voter himself is not expected to violate the voting secrecy himself, according to the Criminal Code. However, such violation usually occurs as a part of voter bribery schemes. For example, a voter takes picture of his/her ballot and shows it to another person to receive monetary reward,” – Ms. Kotsiuruba stated.
Head of the Council of Europe Office in Ukraine Мårten Ehnberg reminded that Ukraine took the certain obligations when it joined the Council of Europe, particularly to reform the electoral legislation. He emphasized that the Council of Europe is ready to assess and support the draft laws aimed at bringing Ukrainian electoral legislation in line with European standards.
MP of Ukraine Oleksandr Chernenko said that despite the reforming process is slow, MPs will support the amendments, especially if they are assessed positively by the Council of Europe and Venice Commission.
Deputy Head of the Central Election Commission Zhanna Usenko-Chorna said that each election is a demonstration of various manipulations created by talented political technologists. She also drew attention to fake electoral subjects: technical candidates and parties.
“I think it's great that Article 160 gives the means and basis to restrict such violations,” – Ms. Usenko-Chorna stated.
Besides that, she called to take into consideration political parties as a significant electoral subject.
“We should understand that very political parties are often the source of evil,” – Deputy Head of the CEC said.
Main Specialist of the MIA Legal Department Nadiia Babak stated that criminal and administrative liability are the most efficient means of tackling electoral violations.
“We add one new article to the Criminal Code and amend 8 existing ones. As for the Administrative Code, we add two articles and amend 4 existing ones. Besides that, we introduce amendments to the Criminal Procedure Code. We took two fundamental ideas. The first is strengthening liability for organizers of crimes, including officials like head and deputy head, and members of election commissions. At the same time, exemption from criminal liability for accomplices who assist in pre-trial investigation. Crimes usually occur unexpectedly. Thus, it would be reasonable to have, so to say, “a watertight witness”, to prevent the certain types of crimes. It doesn't concern organizers of a crime, of course,” – Ms. Babak stated.
Director of the Analytics and Organization Department at MIA of Ukraine Mykhailo Verbynskyi determined that there are two types of violations occur: situational and systematic.
Systematic violations are organized by political parties. Various political technologies are being invented, which are outside of the criminal or administrative liability. It's impossible to bring a political party to account. Thus, there must be a different way to prevent such crimes, a different law restricting such political party from participation in the election process. If we use only the criminal legislation, while the election is a manifestation of democracy, we should be careful not to make the entire election process become a criminal proceeding. It would be wrong to open a criminal case under each violation, and such society will look unhealthy,” – he said.
Principal Scientist of the State Research Science Institute Mykola Svirin has emphasized that voters are the most important in electoral process, and future of the country depends on their participation and choice, as well as its development.
“We should use law amendments to guarantee realization of rights and freedoms for the voters on one hand, and to stop any violations occurring today, on the other hand. Law-making has its stages and rules, and must be based on the necessity of making the corresponding amendments, criminalize the certain actions or establish liability. However, we have little information today to decide whether it's reasonable to criminalize or not, as well as to substantiate the amendments,” – he said.
Parliamentary and Electoral Programs Coordinator of the Civil Network OPORA Olha Aivazovska mentioned that the organization has been monitoring and analyzing criminal proceedings, related to the election process, court practices and the drawbacks of electoral legislation since 2014. According to her, there are enough analytical documents to understand that the legislation needs to be regularly improved.
“OPORA made statistical analysis even for such violations as taking pictures of ballots. I can say when and on which elections extremely high quantity of such incidents occurred and how they influenced the election process,” – Aivazovska said.
Head of the Criminal Law Department of the National Academy of Internal Affairs Andrii Savchenko said that amendments to the electoral legislation are more than timely.
“We are not waiting till the last year before elections and prepare the draft law in advance. We discuss it and submit it to the Parliament. Such approach forms positive image for both government bodies and non-governmental organizations. Will this bill help to differentiate between crimes and administrative offenses? I believe it will help, because it establishes more distinct boundary between administrative offenses and crimes, where a physical person, but not an official, plays the leading role,” – he emphasized.
Mykola Khavroniuk, Scientific Development Director at the Center for Political and Legal Reforms, presented the statistics of electoral administrative offenses and application of criminal legislation in 2014 parliamentary elections.
“How many convictions? One. You may say that the investigation is too long and continues into the next year. The next year – 25 convictions. However, only 17 of them concern electoral process. Seven concern falsification of electoral documents and 10 concern the multiple voting. Why is it so? Firstly, violations that are crimes according to the Criminal Code, are not crimes in most cases. I made the selection once more and received 45 violations. 22 of them, the half, do not contain elements of a crime. There are no grave consequences, or signs that an offense was committed by a public servant or other subject. Secondly, we perceive the Criminal Code as something scary for the people, including electoral stakeholders, and expect them to stop doing what they are not supposed to because they are afraid. But such approach doesn't work,” – Khavroniuk stated.
He also added that the criminal process is quite prolonged and expensive for the state, in contrast to the administrative process.
“We face the situation when courts have to exempt from criminal liability if a person confess. If they do not exempt from liability, they exempt from punishment. The punishment, for its part, may be a small fine, a confiscation or discharge from the position. So why do we need this if the Administrative Code already gives us such means of influence? We can make high fines and we can discharge, these penalties are already included in the Code of Administrative Offenses,” – Scientific Development Director at the Center for Political and Legal Reforms said.
At the same time, Head of the Main Investigation Department of the National Police of Ukraine Oleksii Kriukov mentioned that law-enforcement is cautious about amendment of general regulations of the Criminal Code, because they are fundamental in classification and investigation of crimes.
“Therefore, concerning and exception in additional punishment like banning to hold offices or be involved into the certain activities is questionable, because the only exception which bans to hold the certain offices for five years has already been established by the Law on Purification of Government. As you can see, although it's important to make exceptions for such important sphere as electoral crimes, they are against the principles which lie in the basis of general regulations of the Criminal Code. Thus, we would be cautious about such changes,” – Mr. Kriukov said.
Denys Kovryzhenko, legal advisor of the International Foundation for Electoral Systems (IFES), agreed that law regulations should be reconsidered and added that the provisions on liability should be changed comprehensively in the future.
“Liability for electoral violations is regulated only by two legislative acts for today: Criminal Code of Ukraine and Code of Administrative Offenses of Ukraine. If we take the Law of Ukraine on Elections, there are no sanctions in many cases. In fact, there are many violations listed but either none liability established in the laws or the established liability doesn't work,” – he said.
Viktor Zalizniuk, Head of the working group that has developed the Electoral Code, which was registered in the Parliament by MP Valerii Pysarenko, mentioned that the certain amendments were goaled to target the certain electoral violations more specifically. However, it will bring positive results if the amendments are included in legislation.
If adoption of a new high-quality electoral system will not eliminate corruption and forgery schemes, it will definitely make them not so expedient and suitable,” – he said.
Denys Monastyrskyi, Expert at Ukrainian Institute for the Future, said that the bill will be changed a lot, especially by the Parliament.
“I think the most important is that we have emphasized the key issues, which are not accepted by the expert community. I think that such key issues should be avoided, because they will appear during its consideration in the parliament,” – he said.
Full video of the conference is available here.