The monitoring conducted during the elections of the National Assembly and Yerevan City Council in 2017 revealed several issues related to maintaining legality during the elections, which created favourable conditions for election fraud.
The cause for such issues were both the lack of will from the authorities to combat election fraud and several legislative issues. And if the first problem was resolved after the Velvet Revolution, the solution of the second problem requires radical legislative changes.
The most important issue in particular is the fact of relatively mild penalties for electoral offences, compared to the public danger they result in. The problem is more visible in those crimes when they were carried out by initial agreement of a group of people, or by an organized group.
Thus, for example, the penalty envisaged by the Criminal Code for overthrowing the constitutional order is between 10 to 15 years of imprisonment (Article 300.1 of Criminal Code), while for the falsification of election results the maximum penalty is 5 years of imprisonment ( Article 150 of Criminal Code).
Meanwhile, the falsification of election results by the criminal group can lead to failure of the constitutional order and can be equally dangerous for the public.
Moreover, as almost all electoral crimes are considered not grave or medium-gravity crimes, according to the Law on Operational Intelligence, the bodies conducting criminal investigations cannot carry out a number of operative intelligence measures( such as wiretapping, domestic eavesdropping and more). It makes it almost impossible to disclose latent electoral offences (when there is no victim).
For example, the maximum penalty for electoral bribery is 5 years of imprisonment, which means, that this offense is of medium gravity (CC, Article 154.2, Part 2). In the case of electoral bribe, there are no victims who will be interested in reporting the crime or in revealing it. In practice, the only mechanism to disclose election bribes is operative intelligence activities.
However, there is another problem concerning electoral bribes. Electoral bribe supposes that votes are in return for money or other material payments (taking into consideration secrecy of voting the vote cannot be given for election bribes, it can only be expected). In practice, however, the expectation of the vote is unmeasurable (when not combined with other electoral offenses) and very difficult to prove. It is very difficult to distinguish between electoral bribes and charities organized( on behalf of candidates or parties) within campaigns (hereinafter, violation of charity ban). Moreover, there is practically little difference between the outcomes of violation of the ban on charity and electoral bribes in terms of their public danger effect.
In both cases, there is a component of orienting voters towards them by financial means. And in both cases, in case of having massive practice of such an action, the democratic principle of constitutional order can be jeopardized.
Nevertheless, the violation of the ban on charity is not even an act prohibited by the Criminal Code and is an administrative offense.
The next issue of the Criminal Code relates to the disclosure of the confidentiality of his / her own voting by the voter. While the Constitution and the Electoral Code state that the secrecy of voting is not only a right but also a liability, the voter does not bear any responsibility for its violation.
And the last serious problem of the criminal law is the criminal punishment for deliberately and negligently false announcement about voting instead of another person, which can impede the citizens to report to the electoral commissions in case of noticing voting instead of another person In addition, the penalty imposed on the intentional execution of such offenses is substantially higher than that of false deception (Article 333, CC).
In order to solve the mentioned problems, it is necessary to
- Add penalties for offenses committed by a group of persons through initial agreement or by an organized group.
- Criminalize the prohibition of charity in political campaigns.
- Establish criminal liability for the voter who intentionally diclosuses the results of his/her secret voting for mercenary purposes.
- Decriminalize the action of negligently giving a false declaration of voting instead of another person and make the criminal liability for deliberate commitment of the same act equal to false denunciation.
Code of Administrative offenses
Issues related to administrative offenses (election-related issues) are of two types:
First, it is connected with the fact that violations of a number of Electoral Code norms are not even administrative offenses, and in some cases, the logic of fines is infringed or the assessment of the actions is incomplete. The second and most serious problem is that the mechanisms for calling the perpetrators of administrative offenses are incomplete and complicated.
The most common and serious breach of the Electoral Code, which is not in the administrative offense, is related to maintaining order in the polling station. Although both domestic and international observers have repeatedly stated that there is a problem with the presence of persons who are not entitled to be present at the polling stations, with respect to their presence or the occurrence of periodically entering or exiting the precinct.
To solve this problem, it is necessary to set certain administrative responsibility towards those who deliberately violate the rules of precinct.
Currently, in the case of election violations, non-governmental organizations, political parties and candidates should apply to the Electoral Commission demanding that the commission form a protocol and apply to the court.
In practice, however, the electoral commissions would usually refuse such motions, and the detectors were usually applying to the court asking the court to obligate the electoral commission to apply to the court. The court would find out whether there had been an administrative offense and if yes, it would have obliged the electoral commission to apply to the court.
This mechanism, aside from being absurd and artificially complicated, has yet another problem. There is no guarantee that the electoral commission will properly present all the evidence when applying to the court with a request for administrative liability.
In this regard, it is necessary to amend a number of provisions of the Code of Administrative Offenses, enabling non-governmental organizations, parties, and candidates conducting an observation mission to apply to the court without having to file a complaint with the election commission and without having to file a report requesting that the offender be brought to administrative responsibility.
Daniel Ioannisyan, Hovsep Ghazaryan
Union of Informed Citizens