SUMMARY
According to OPORA's data received in June – beginning of September 2016 there were 422 pre-trial investigations initiated under Articles 157-160 of the Criminal Code of Ukraine during 2016 regular local elections. Most of pre-trial investigations concerned voter bribery – 159 investigations, Article 160 of the CrCU; impeding the free exercise of voting rights, activities of election commissions and official observers – 97 investigations, Article 157.
The number of initiated criminal proceedings initiated during 2015 regular local elections exceeded early presidential and parliamentary elections. Thus, the highest number of pre-trial investigations was initiated during local elections in Chernihiv (46), Kyiv (44), Dnipropetrovsk (40), Odesa (40) oblasts and the city of Kyiv (42).
As of the beginning of September 2016, investigators have ceased 65% of criminal proceedings initiated during regular local elections in Ukraine. Thus, 272 of 442 criminal proceedings were ceased, bills of indictment were sent to courts in 68 cases, and 84 cases are still being investigated.
PRE-TRIAL INVESTIGATIONS OF CRIMES AGAINST ELECTORAL RIGHTS OF CITIZENS COMMITTED DURING 2015 REGULAR LOCAL ELECTIONS
The competition between local party cells and candidates was quite strong in 2015 regular local elections in Ukraine. However, their campaigning methods often didn't correspond to the national legislation and generally recognized electoral standards. According to observation findings of Civil Network OPORA, there were significant issues in election administration, particularly in activities of territorial and precinct election commissions, adherence to transparency and accountability standards, campaign financing, legitimacy and fairness of vote count and determination of election results in a number of territorial communities. Thus, OPORA cannot say 2015 local elections were held in accordance with national legislation and international standards of electoral process due to various forms of voter bribery incidents detected
According to the information provided by OPORA's official observers, who have been watching whether local party cells and candidates adhere to electoral legislation, the most widespread violation was illegal campaigning, including its financing from other sources than the election fund, providing material incentives to the voters (goods, services or money), misuses in election commissions of different levels. Thus, observers have detected around 1,600 violations during the election process, which are publicly available on OPORA's official online resource. OPORA's observation methodology included reporting any violations to law-enforcement bodies.
One of the fundamental tasks of the state and the society is to guarantee the certainty of punishment principle in crimes against electoral rights of citizens. This task in not only a part of the goal to reform the electoral legislation or find the best suitable electoral system, it is also important because the public looses trust in fairness and don't believe that politicians will ever be brought to responsibility.
Ukrainian society has new expectations to law-enforcement and judicial systems as they are being reformed. Criminal and administrative cases related to elections are the test for law-enforcement and judicial systems, as long as quality of the corresponding investigations shows not only the competence and impartiality of judges and law-enforcement officers, but also gives an opportunity to see whether they are able to counteract against illegal political interests and influences.
According to OPORA's Statement on observation results of 2015 regular local elections, law-enforcement bodies were more active in their response to violation reports, and counteraction to misuses committed by local party cells and candidates. At the same time, it was emphasized in the statement that the efficiency of law-enforcement system should be demonstrated on the stage of investigation They should guarantee a fair punishment for the criminals by providing enough evidence to the courts.
Civil Network OPORA has been monitoring pre-trial investigations related to 2015 local elections, and studying court judgments in cases related to violation of electoral rights of citizens since July 2016. Collection and systematization of information about investigations of electoral crimes is not only an important public oversight instrument, it also gives an opportunity to all stakeholders to make legislation improvements and reconsider the corresponding practices based on the research of existing experience.
This report is also called to urge law enforcement and judicial authorities, as well as civic and research institutions to strengthen their common efforts goaled to bring to responsibility individuals who violated electoral rights of citizens. These efforts, however, directly depend on reforming of the legislation, prevention of corruption on the stage of law enforcement response to electoral crimes, and increasing the competence of law-enforcement officers and judges.
According to the answers to OPORA's information requests concerning the investigations into electoral crimes committed during 2015 regular local elections, provided by the National Police and Prosecutor's General Office of Ukraine, there were 422 pre-trial investigations initiated under Articles 157-160 of the Criminal Code of Ukraine.
Articles 157, 158, 158-1, 158-2, 159, 159-1 and 160 of the Criminal Code of Ukraine establish liability for crimes against electoral rights of citizens
The statistics shows that the number of investigations initiated during 2015 regular local elections exceeds 2014 early presidential and parliamentary elections.
Thus, 422 pre-court investigations were initiated during 2015 local elections, and 349 investigations (73 less) during 2014 early parliamentary elections in Ukraine. As for the snap Presidential elections, there were only 150 investigations initiated.
There are two reasons why the number of pre-trial investigations is higher in 2015 regular local elections. Firstly, the number of candidates is much greater. Secondly, law-enforcement bodies started responding more actively to violation reports from various electoral subjects.
The vast majority of pre-trial investigations (442 in total) were initiated under Article 160 of the Criminal Code of Ukraine. Thus, there were 159 proceedings initiated under the Article 160, which establishes liability for voter bribery.
According to the Criminal Code of Ukraine, the voters who accept a proposition, a promise, or illegal incentive, for committing or non-committing of any actions directly related to realization of voting right shall be punished, as well as individuals who offer a bribe. Thus, Article 160 establishes a punishment from one to three hundred of untaxed salary minimum, corrective labor for up to two years, or restriction on liberty for the same period. Individuals who offer a bribe shall be punished by up to three years of restriction of liberty or deprivation of liberty for the same period with no right to hold the certain positions or be involved into the certain activities from one to three years.
Article 160 (3) establishes responsibility for providing the illegal incentive or free commodities, services, works as a part of campaigning efforts during election or referendum to institutions, establishments or organizations. The exception are items bearing name, logo, or flag of a party, provided that the value of such items does not exceed the allowed amount established by the Law. Any recurring provision of an illegal incentive (offer/promise) to a voter or free commodities, services, works to establishments or organizations as a part of campaigning efforts, as well as conspiracy with an election commission member of a candidate aimed to commit these crimes, shall be punished with deprivation of liberty for five to seven years with no right to hold the certain positions or be involved into the certain activities from one to three years.
Taking into consideration the course of local elections and the fact that many candidates use material incentives to engage the voters, the large number of pre-trial investigations under voter bribery article was quite expected. If we talk about the influence on election results, the voter bribery has the strongest impact if compared to other violations.
97 pre-trial investigations were initiated under the Article 157 of the Criminal Code of Ukraine – impeding the free exercise of voting rights, activities of election commissions and official observers (including interference into activities of an election commission by a public servant. The Criminal Code establishes different punishments with consideration of possible combination of these crimes with the use of force, in conspiracy by a group of people, or by a member of election commission. For example, if a public servant misuses his/her powers to interfere in activities of an election commission, he/she may be punished with deprivation of liberty for five to ten years with no right to hold the certain positions or be involved into the certain activities from one to three years.
Investigations under the Articles 158-1 (78) and 158 (71) were also quite widespread.
Article 158-1 concerns unlawful use of a ballot paper, or multiple voting by the same person in election or referendum. This article of the Code also establishes responsibility for handing or receiving a ballot contrary to legislation, stealing or hiding of a ballot, giving a marked ballot to a voter. According to the Law, the crimes committed repeatedly or in conspiracy by a group of people, member of election commission or candidate shall be punished with deprivation of liberty for five to seven years with no right to hold the certain positions or be involved into the certain activities from two to three years.
At the same time, Article 158 of the Criminal Code of Ukraine establishes liability for providing false information to the State Voter Register maintenance body or falsification of electoral documents, referendum documents, voting results, or the data of State Voter Register. In fact, however, most of pre-trial investigations under Article 158 concern falsification of electoral documents by members of election commissions. The most severe punishment under this Article is deprivation of liberty for seven to ten years with no right to hold the certain positions or be involved into the certain activities from two to three years.
The number of pre-trial investigations under Article 158-2 of the Code (illegitimate destruction of electoral documents) was quite low – 9 investigations; Article 159-1 (violation of party financing procedures, national or local election of referendum campaigning rules) – 7.
It's easy to notice that the number of pre-trial investigations on violation of campaign financing procedure is quite low despite this problem is widely known as one of the topical ones (non-transparent campaign financing by local party cells and candidates). For example, the OSCE/ODIHR Election Observation Mission has indicated in its Final report on regular local elections in Ukraine that there were no sanctions for violations of campaign financing procedures.
Only one pre-trial investigation was initiated under the Article 159 of the Criminal Code of Ukraine (violation of the voting secrecy).
Almost 65% of pre-trial investigations were ceased as of 11 September 2016, based on the data provided by the National Police.
For example, 77% pre-trial investigations, initiated under Article 160 of the CrCU (voter bribery), were ceased. As for the Article 157 (impeding the free exercise of voting rights, activities of election commissions), 74% of pre-trial investigations were ceased.
According to the information collected by OPORA as of 11 September 2016, bills of indictment were sent to courts only in 15.6% of pre-trial investigations (66 of 422 cases). However, there are still around 20% of ongoing pre-trial investigations (84 cases).
As of 9/11/2016, most of ongoing criminal proceedings are under Articles 158 (29), 157 (23) and 160 (20) of the Criminal Code.
Thus, bills of indictment were sent to courts only in 15.6% of pre-trial investigations (66 of 422 cases) as of 9/11/2016.
The number of bills of indictment is much smaller if compared to the number of closed criminal proceedings. On one hand, this can be understood as the lack of solid reasons for violation reports from electoral subjects. On the other hand, we have to take into consideration the poor motivation of investigators to thoroughly consider all the circumstances and find a foundation of a crime. The latter assumption may be proved by numerous challenges against decisions to close criminal proceedings or court ruling reversing decisions to cease a proceeding. For example, OPORA's observers in Vinnytsia and Volyn oblast informed about court rulings reversing investigators' decisions to cease a pre-court investigations.
INVESTIGATIONS INTO CRIMES AGAINST ELECTORAL RIGHTS OF CITIZENS IN REGIONS
According to the information provided by the National Police, top 5 regions of Ukraine with the largest number of pre-trial investigations initiated during 2015 local elections are the following: Chernihiv (46), Kyiv (44), Dnipropetrovsk (40), Odesa (40) oblasts and the city of Kyiv (42). The smallest number of criminal proceeding were initiated in Ivano-Frankivsk (1), Chernivtsi (3) and Mykolaiv (5) oblasts. The pre-trial investigation in Ivano-Frankivsk oblast ended up with a bill of indictment sent to court.
We would like to emphasize that some regions with high number of initiated criminal proceedings didn't send any bills of indictment to court. 45 of 46 criminal proceedings in Chernihiv oblast and 33 of 42 in Kyiv city were closed with no bills of indictment sent to court.
Almost 50% of criminal proceedings initiated in 19 oblasts and Kyiv city during the local elections were closed. Besides that, closed criminal proceedings comprised 70% or more of their total number in 7 oblasts. Investigation bodies in Chernihiv oblast, for example, closed almost 100% of criminal proceedings (45 closed 1 ongoing).
The largest number of ongoing investigations into electoral crimes is in Kyiv (14) Odesa (10), Dnipropetrovsk (8) oblasts and the city of Kyiv (9).
COURT JUDGMENTS ON CRIMES AGAINST ELECTORAL RIGHTS OF CITIZENS
There were 66 criminal proceedings sent to trial in different regions as of 9/11/2016. The biggest number of bills of indictment were sent to courts in Odesa, Volyn and Ternopil oblasts.
44 of 66 bills of indictment were sent to courts under Article 158-1 of the Criminal Code of Ukraine (unlawful use of a ballot paper; multiple voting by the same person). Only 18 criminal proceedings considered by courts concerned voter bribery. Proceedings under Articles 157, 158 and 158-2 occurred rarely.
This report has been produced with the financial assistance of the Council of Europe. The views expressed herein can in no way be taken to reflect the official opinion of the Council of Europe.