Oles Dovhy
Only five cases of election violations were resolved in court, but the sentences were suspended, and one case was settled out of court. Law enforcement officials are sabotaging the investigation, while defendants in criminal cases continue to serve as members of parliament. The Presidential Administration is sabotaging tougher penalties for criminals.
In January 2015, a court ordered a repeat local election in the Czech town of Chomutov, citing vote-buying that had distorted the results. The court ordered the repeat local elections after reviewing 79 identically filled ballots cast for several candidates from the Czech Social Democratic Party (ČSSD) in 11 of 40 polling stations.
The bribery took place during a Roma community festival; voters were given envelopes with pre-filled ballots and 200 crowns.
Activists from the "We Don't Want to Live in Palermo" initiative challenged the election results at several polling stations in court on suspicion of vote-buying among socially vulnerable citizens and also filed a crime report with law enforcement. The criminal investigation into vote-buying is ongoing.
The events that took place in Chomutov, Czech Republic, are reminiscent of Ukrainian realities for many reasons. Elections in Ukraine are characterized by the bribery of large numbers of socially vulnerable voters for relatively small sums of money. Activists from civil society organizations often identify and document such bribery. Despite the depressing impact of these events, the story of the "We Don't Want to Live in Palermo" activists is a success story, thanks to the efforts of the judiciary and law enforcement.
The court decided to hold repeat elections, and 45 people will be held criminally liable and face imprisonment for terms ranging from 6 months to 3 years.
At the same time, in Ukraine, during the last extraordinary elections of people's deputies, 181 proceedings were initiated under "electoral" articles related to bribery of voters under Article 157 (of which a significant portion were for obstructing the exercise of the electoral right by bribery - as amended before October 23, 2014) and 37 proceedings under Article 160 of the Criminal Code of Ukraine (as amended by the Criminal Code of October 23, 2014).
However, the pre-trial investigation was completed with only two indictments under Article 157 of the Criminal Code of Ukraine and two under Article 160 of the Criminal Code of Ukraine, as well as one plea bargain under Article 157 of the Criminal Code of Ukraine.
Only five cases brought to court across Ukraine are, without exaggeration, a drop in the ocean. Unfortunately, none of them will be high-profile. Once again, those held accountable were minor perpetrators who were "unlucky" enough to be caught on camera by journalists or activists, while dozens of other citizens who committed similar acts faced no punishment.
Using materials from the Unified State Register of Court Decisions and available media publications, we will trace the "fate" of criminal proceedings that had the greatest public resonance. We will also take a closer look at the defendants in criminal proceedings related to cases committed during the snap parliamentary elections on October 26, 2014.
Option 1. In October 2014, in an agreement with a candidate's campaign staff member, a 56-year-old resident of Cherkasy sought out residents of the city of Smila and, on the eve of the election, handed them 2000 hryvnias in order to bribe them to vote for one of the candidates for parliament. Her actions were classified as a criminal offense under Part 4 of Article 160 of the Criminal Code of Ukraine (bribery of voters). The decision on criminal case No. 703/540/15-k has not yet been published in the Unified State Register of Court Decisions.
The registry only contains references to closed-door court hearings and the transition to a plea agreement. According to Opora, the defendant was found guilty based on a plea agreement for the crime charged. The court upheld the plea agreement, sentencing the defendant to five years' imprisonment with a two-year probationary period. The defendant was also disqualified from serving as an official observer in parliamentary elections in Ukraine and from campaigning for two years.
According to media reports, the defendant received the funds from Volodymyr Grechany, who is also facing criminal charges and was remanded in custody with the right to post bail. After posting bail of 90 hryvnias, Grechany fled and is currently wanted by the police.
It can be argued that no criminal cases have been brought against the initiators and organizers of the bribery pyramid, their actions have not been investigated, but of the two actual perpetrators of the crime, only one has been held accountable, and even he has been released from serving his sentence with a probationary period.
Case No. 2. Outside the city of Cherkasy, law enforcement officers stopped buses carrying passengers heading to Odesa to participate in illegal voting. Between October 22 and 25, 2014, four individuals recruited residents of the Cherkasy region to vote at polling stations in the Odesa region, promising them cash rewards (between 200 and 2000 UAH) in order to bribe voters. Criminal case No. 12014250000000457 has been opened.
As criminal proceedings in case No. 711/51/15-k are ongoing, the Unified State Register of Court Decisions currently only contains the ruling of the Pridneprovsky District Court of Cherkasy. It's worth noting that the trial in this criminal case is being unreasonably delayed.
Thus, on January 6, 2015, the indictment was received by the Pridneprovsky District Court of Cherkasy. However, the trial court returned the indictment for a month to address the deficiencies identified. On March 10, the Cherkasy Regional Court of Appeal upheld the prosecutor's appeal, finding no deficiencies in the indictment, and the case was thus rescheduled for hearing on April 6, 2015.
According to the official Judicial Authority portal, the next hearing in the case against A. Yu. Tsuprun, R. V. Tolub, V. V. Bondarenko, and S. A. Perkin will take place in the Pridneprovsky District Court in Cherkasy on September 21, 2015.
Case No. 3. Perhaps the most publicized incident was vote-buying in the 102nd electoral district, where Oles Dovhyi was elected. Thirty-nine reports of possible violations of electoral law in favor of Oles Dovhyi, a candidate for People's Deputy of Ukraine, were filed with the police, including by OPORA observers, most of which involved vote-buying. Journalists also repeatedly documented instances of vote-buying.
As already noted, current MPs Mustafa Nayyem, Serhiy Leshchenko, and Svetlana Zalishchuk conducted investigative journalism. They demanded that the Central Election Commission invalidate the elections in the 102nd single-mandate constituency.
The investigation of criminal cases by investigators from the Znamensky and Onufrievsky district departments of the Ministry of Internal Affairs of Ukraine in the Kirovohrad region on facts of bribery of voters in the territory of the 102nd electoral district under Part 1 of Article 157 of the Criminal Code of Ukraine (as amended by the Criminal Code as of October 23, 2014) was separately noted in the interim report of the Ministry of Internal Affairs on the investigation of violations of electoral legislation.
However, to date, not a single criminal case in the 102nd Electoral District has been investigated, even to the point of filing charges. Seven criminal cases have been closed, and only one is currently under investigation.
At the same time, Oles Dovgyi helped organize the campaign headquarters of Sergei Berezenko, who ran in the Chernihiv 205th electoral district, notorious for its "voter-buying campaign," during the 2015 snap parliamentary elections.
The basis for the closure of seven criminal cases was the lack of criminal offense, according to law enforcement officials. However, even more disturbing is the closure of two criminal cases under paragraph 4, part 1, Article 284 of the Criminal Code of Ukraine (the entry into force of a law abolishing criminal liability for an act committed by an individual).
As a reminder, on October 19, 2014, the President signed the law "On Amendments to the Criminal Code of Ukraine Concerning Increased Penalties for Violating Citizens' Electoral Rights," which had been adopted on October 14. The law removed the word "bribery" from Article 157, but instead amended Article 160, "Bribery of a Voter or Referendum Participant." Thus, bribery, rather than a method of obstructing electoral rights, became a separate crime. This change does not decriminalize bribery; on the contrary, effective October 23—the day the law entered into force—the penalties for bribery have been increased. Since the criminal law increasing penalties is not retroactive, and bribery will not be decriminalized, the investigation must be completed under Part 1 of Article 157 of the Criminal Code of Ukraine.
Thus, the adoption of a law increasing penalties—due to the incorrect application of criminal law—in the Kirovohrad region led to the closure of a criminal case due to the abolition of criminal liability, which is "legal nonsense."
In the Unified State Register of Court Decisions we find two more criminal cases of voter bribery, for which court decisions have been published, but in less resonant cases, namely: the verdict of the Novomoskovsk City and District Court of Dnipropetrovsk Oblast dated February 10, 2015 in case 183/721/15-k (Case 4) and the verdict of the Belogorsk District Court of Khmelnytsky Oblast dated December 12, 2014 in case 669/1419/14-k (Case 5).
Case 4. In the village of Spasskoye, Novomoskovsk district, Dnipropetrovsk region, a campaigner distributed pasta, halva, and cookies at a 30% discount for supporting one of the candidates. Thus, the defendant provided voters with an unlawful benefit for the direct exercise of their electoral rights, voting for a specific candidate in the election, thereby indirectly bribing voters. A plea bargain was reached between the prosecutor and the defendant.
The court imposed the agreed-upon penalty of a fine of 300 non-taxable minimum incomes, equivalent to UAH 5100. Since the criminal case was initiated before the amendments of October 14, 2015, came into effect, those found guilty of accepting the bribe were not held accountable.
A positive conclusion from the examination of this court case is that judicial practice shows that not only direct but also indirect bribery (the provision of certain benefits and advantages, and not directly monetary funds) is a criminally punishable act.
Case 5. In the village of Vodicki, Belogorsky district, Khmelnytsky region, the accused gave 100 hryvnias each to village residents. According to the accused, an unknown person gave him 2000 hryvnias and contracts. The accused distributed the entire 2000 hryvnias given to him to the village residents and filled out 24 contracts. He promised to return the money to the four residents who provided their passport information and signed the contracts but did not have enough funds after his next meeting with the unknown person. On the morning of October 22, 2014, he met again with the unknown person, who gave him another 400 hryvnias and explained that if the candidate won at the polling station, he would definitely pay the accused for the work he had performed.
Following the court hearing, the defendant was sentenced to one year of restricted freedom, from which he was released on probation. He was also disqualified from holding positions on electoral commissions, the referendum commission, serving as an official observer, and from engaging in activities related to the electoral process and referendum for one year. Since the criminal case was initiated before the amendments of October 14, 2015, came into effect, those found guilty of accepting the bribe were not held accountable.
The investigation has not identified the person who transferred the money and contracts to the accused, nor is it clear what role the candidate who received the bribe played in the criminal "pyramid" scheme. In fact, only the direct, minor perpetrator of the crime was held accountable.
Analyzing all five cases—from the most to the least resonant—it's worth noting that in none of them were the organizers of the bribery schemes or the candidates who, one might assume, authorized the criminal "bribe pyramids" or planned the "carousel" schemes punished. Accountability was fragmented compared to the scale of the bribery.
Unfortunately, the active work of journalists and civil society activists alone is not enough to overcome the system and stop comparing Ukraine's electoral districts to Palermo, Sicily, where impunity, not justice, once reigned. The experience of the snap parliamentary elections in the 205th electoral district in Chernihiv Oblast demonstrated the profound consequences of law enforcement's inaction to prevent and combat vote-buying. Following the elections, the president proposed discussing specific steps, including legislative ones, to avoid violations in the next local elections on October 25, 2015.
A working group, including representatives from the International Foundation for Electoral Systems (IFES), OPORA, and the Committee of Voters of Ukraine, developed a progressive draft law that criminalizes any receipt or provision of illegal remuneration to voters, which will allow for liability for providing goods to individuals—that is, directly to voters (with the exception of small campaign items, such as pens, calendars, and bags with party logos or candidate names valued at up to UAH 36,54).
But today, this important bill has been "lost" in the corridors of the Presidential Administration. The consequences of its delayed submission to the Verkhovna Rada and its likely adoption only at the end of the election campaign will be a repeat of the same mistakes of 2014, when amendments to the Criminal Code took effect only two days before election day, so their implementation was unsuccessful.
Furthermore, current legislation, even without amendments, if effectively enforced, allows law enforcement agencies to actively combat vote-buying. Unfortunately, the results we are seeing are quite different.
The impunity of those responsible, in particular, for organizing mass vote-buying, on the one hand, deepens public distrust in the ability of public authorities to implement effective reforms in the near future, and on the other hand, it supports the confidence of the organizers and perpetrators of crimes in the impunity of their criminal actions and the ability to avoid punishment by employing corrupt mechanisms.
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Photo: UNIAN
Olga Kotsyuruba, published in Insider
Translation: Argument
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