The draft Law of Ukraine “On Introduction of Amendments to Certain Legislative Acts of Ukraine Aimed to Strengthen the Liability for Violation of Electoral Legislation” was elaborated by the Ministry of Internal Affairs, National Police and Civil Network “OPORA” following on from the results of long-term public and expert discussions. Work on elaboration of draft law started off in 2016 with regional discussions on the results of investigation of crimes against electoral rights of citizens committed in 2015 regular local elections. The inclusive and comprehensive manner of drafting process provided for incorporation of substantiated proposals from investigators directly involved in investigation of electoral crimes, observers representing NGOs, other electoral subjects, academics, etc, in the provisions of this draft law.

The above statement was made by the Deputy Minister of Internal Affairs of Ukraine Tetyana Kovalchuk at the meeting of Cabinet of Ministers of Ukraine held on Wednesday, April 11. Below you will find the full text of Deputy Minister’s statement.

The draft law received approval from the Ministry of Economic Development, Ministry of Finance, Ministry of Justice, Prosecutor General’s Office and Central Election Commission.

The urgent need for adoption of this draft law is evidenced by the large number of electoral violations that are being recorded by independent observers during elections in Ukraine and result in initiation of criminal proceedings. According to the results of survey conducted in the June-July 2017 timeframe by GfK Ukraine at the request of Council of Europe Office in Ukraine, 68% of Ukrainians are dissatisfied with the current level of fairness of election process in Ukraine and only 19% are satisfied with it. This goes to show the magnitude of the problem.

Public opinion on compliance of electoral process with generally recognized standards indicates the need for effective prevention, detection and investigation of electoral crimes. Effective application of the law should convince general public that the government guarantees legitimate, fair, competitive and free elections. The results of public opinion poll also show the need for increasing the level of responsibility of voters who have mixed feelings about electoral violations. In particular, according to the results of above-mentioned survey, only 16% of Ukrainians would appeal to the law enforcement agencies if a party or a candidate offers them money or gifts in exchange for their votes. The law should also provide for adequate incentives to improve the level of cooperation between voters and law enforcement agencies with the aim of ensuring effective prevention and investigation of crimes against electoral rights of citizens.

In the run-up to regular presidential and parliamentary elections in Ukraine, the Ministry of Internal Affairs, National Police and OPORA propose to introduce amendments into the Criminal Code and the Code of Administrative Offences of Ukraine that will meet the following criteria:

  • Ensuring the inevitability of punishment for crimes against electoral rights of citizens by way of implementing the effective legal mechanisms that are suitable for practical application. In this context, drafters envisage that it is not so much for the formal severity of sanctions against violators of electoral law, as for the opportunity to apply these sanctions in practice that will play a significant role in preventing electoral violations.
  • The proposed legislative amendments place special emphasis on violations that have a direct impact on the results of elections in Ukraine; at the same time, drafters propose to decriminalize certain minor violations that do not influence the general course of election process. Pre-trial investigation bodies are often forced to spend an inordinate amount of time on investigating minor offences, which results in inefficient use of working hours and doesn’t improve the effectiveness of counteraction of crimes in electoral sphere.
  • Declarative and overcomplicated provisions should be eliminated from legislation in order to ensure the uniform and effective application of laws.

This draft law also introduces amendments to the laws of Ukraine “On Elections of the President of Ukraine”, “On Elections of People’s Deputies of Ukraine”, “On National Referendum of Ukraine” and “On Local Elections”.

In order to extend the list of electoral offenses and obtain legal grounds for detention of offenders , the draft law “On Introduction of Amendments to Certain Legislative Acts of Ukraine Aimed to Strengthen the Liability for Violation of Electoral Legislation” proposes to impose sanctions in the form of deprivation of liberty for a period of up to 2 years under the following articles of the Criminal Code:

  • Paragraph 1 of article 158-1 concerning illegal use of ballot papers and ballot-box stuffing;
  • Paragraph 1 of Article 159 concerning violation of the secrecy of vote committed by member of election commission, candidate or observer;
  • Paragraph 1 of Article 160 concerning receipt of unlawful benefit by voter in connection with the exercise of the right to elect or to be elected.

Therefore, the draft law proposes to impose a sanction in the form of deprivation of liberty on perpetrators of aforesaid crimes for the first time ever in Ukraine, which, among other things, would play a preventive role.

In order to improve the effectiveness of investigations into crimes related to proposing unlawful benefits to voters, indirect bribery of voters, forgery of election documentation (Paragraph 1 of Article 158-3 of the Criminal Code, paragraphs 2-3 of Article 160 of the Criminal Code), draft law proposes to strengthen the liability of perpetrators by way of imposing tougher sanctions in the form of deprivation of liberty for a period of up to 6 years. For example, the current version of Criminal Code provides for application of sanctions in the form of deprivation of liberty for a period of up to 3 years against persons found guilty of proposing unlawful benefits to voters, while the draft law makes provision for increasing the maximum custodial sentence to 6 years. Law enforcement officers will be entitled to perform secret investigative activities (covert surveillance) and collect relevant evidence in order to bring unscrupulous participants of election campaign to justice. I would like to emphasize that vote buying still poses the greatest threat to the fairness of electoral process in Ukraine and remains the key challenge faced by law-enforcement officers who are not authorized to carry out covert surveillance in the course of investigation of electoral crimes.

Imposition of tougher sanctions on perpetrators of electoral crimes is not an end in itself. The draft law provides for the introduction of amendments aimed at creating preconditions and instruments for detecting and investigating crimes as well as prosecuting the offenders. For this purpose, the draft law provides for granting an absolute discharge to persons who voluntarily informed the law enforcement agencies about facts of vote buying or forgery of election documentation and provided assistance in investigation. This legislative innovation will motivate citizens, who are being induced to perform illegal activities during the elections, to cooperate with law enforcement officers. At the same time, I would like to underscore that the provision on exemption from criminal liability won’t apply to organizers of bribery of voters or forgers of election documentation.

A few more details on the proposed amendments to the Criminal Code. For the first time ever in Ukraine, our draft law imposes liability for bribery of candidates. Let’s be clear, the dominant influence and activity of the so-called “dummy candidates” or “clone candidates” is based on receipt of unlawful benefits from influential participants of election race. If a candidate receives an unlawful benefit from another candidate, then both persons involved in electoral fraud should be punished.

The draft law also provides for criminalization of pre-election campaigning accompanied by provision of unlawful benefits to voters. Unfortunately, there is a loophole in the current version of Criminal Code, since it imposes liability only in the case of provision of unlawful benefits to legal entities. Meanwhile, the draft law significantly broadens the definition of unlawful benefits that may be illegally provided to voters. In particular, large-scale distribution of alcoholic beverages and food products in the course of election campaign with the aim of bribing the voters is an example of provision of unlawful benefit.

The proposed amendments to the Code of Administrative Offences provide for a substantial increase in fines for violating the restrictions on election campaigning. This is the most common type of violation of electoral legislation in Ukraine. Therefore, it is necessary to establish conditions, under which the candidates will get more profit by complying with provisions of the law, rather than by way of violating them. In particular, the current fine for violating the restrictions on election campaigning amounts to 30-50 non-taxable minimum incomes of citizens. The draft law provides for increasing the fine up to 100-200  non-taxable minimum incomes of citizens. In particular, such an increase in fines could play the role of preventive measure aimed at those local officials who intervene in election campaigns on a large scale and abuse administrative resources in the course of elections.

The draft law proposes to abolish criminal liability in respect of voters who conceal or destroy their own ballots.

As a rule, such activities of voters can be interpreted as acts of hooliganism or acts of protest, and they do not pose a threat to public safety. Such incidents are not uncommon, and law enforcement officers spend much trouble on documenting the violations that are not a priority task in the context of ensuring high quality of election process. In this case, it would be enough to impose a fine and release human resources for investigation of electoral crimes which have a meaningful effect on election results. It is also proposed to impose administrative liability on voters who voluntarily divulge their electoral choices at the voting premises, which should prevent third parties from exercising different forms of control over the process of expression of will of voters.

The draft law contains a significant number of clarifications of legal provisions and improvements of legal technique. We are confident that elimination of declarative and confusing provisions from the law will allow for effective application of new legislation by law enforcement officers and electoral subjects.

The key task of the draft law is to create favorable conditions for ensuring the inevitability of punishment for perpetrators of electoral crimes. In our opinion, adoption of this draft law marks an important stage in the process of preparation for fair and democratic national elections in Ukraine.