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Otar Kakhidze: Voter bribery is one of the forms of political corruption

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“Voter bribing” is a phrase frequently heard bandied about these days in discussions about the upcoming elections. In recent months, Georgian Dream political coalition leader Bidzina Ivanishvili has been fined several times for bribing voters. The most recent case of alleged voter bribery resulted in the seizure by law enforcement authorities of thousands of satellite antennas of the Maestro TV company in July. A group of non-governmental organizations, including the Georgian Young Lawyers’ Association (GYLA), claims that impoundment of the satellite antennas was illegal and constitutes a violation of the election law. In mid-August, Tabula interviewed Ministry of Justice Analytical Department Head Otar Kakhidze and Georgian Young Lawyers’ Association Chairperson Tamar Chugoshvili to solicit their respective views on use of government administrative resources, bribing of voters and seizure of Maestro TV’s satellite antennas.

When talking about election-related issues, the most frequently used word is “bribing.” According to the most recent survey conducted by the U.S. National Democratic Institute in June, the greatest barrier to free and fair elections for the majority of respondents is voter bribing. What does “bribing” of voters mean?

Bribing of voters means giving, or promising to give, money or other gratuity in return for votes in elections.

Voter bribery, in general, is one of the forms of political corruption. It is important that political parties and candidates build their election campaigns around competing ideas, political manifestos, and not on offering or promising material benefits. Such a process is strange for democracy. We took into consideration the experience of developed countries that the state should ban voter bribing.

The Penal Code of Georgia defines any direct or indirect offer or promise of money, securities or any other material benefit as a punishable action. The receipt of such an offer, or demand that such an offer be made, is also a punishable action under the Code. That is equivalent to giving or receiving a bribe; in other words, it is a corruption crime.

A provision on voter bribing regulates yet another type of political corruption, which involves cutting illegal or sham deals. That is also prohibited.

It should be noted that criminal liability for such a crime arises when the value of a deal or an object used for bribery exceeds GEL one hundred.

Where does the line between charity and voter bribery run?

The line is established by the law. That is an electoral aim. When a citizen of full legal age gives money or other material asset to another subject, it will be considered as voter bribery if an electoral aim exists. If no electoral aim is apparent and there is a charitable or any other aim, that will be an ordinary action which is, naturally, not prohibited.

Signs of voter bribing are apparent when politicians promise something to voters in various forms – be it a fridge, antenna or any material object or asset.

There is an opinion that both private capital and administrative resources in the hands of government can equally create danger. What regulates the use of administrative resources and where is the line drawn between the government liabilities and bribery of voters, for example, by government-issued vouchers?

In this case, the voter-bribing regulation draws a certain line. Promises of budget allocations will not be considered bribery because budget allocations, or social programs which are implemented in the country time and again, are a process of government activity. Distribution of vouchers and subsidization of certain spheres are reflected in the budget and have the form of government programs and are implemented within the boundaries of the law.

As regards voter bribing, that is an instance when people with their own means promise certain services, benefits, cause voters to have material interest or directly give them certain assets.

Budget money is not a political party fund. The budget consists of taxes paid by citizens. Beneficiaries of the budget – or, if you please, vouchers – are citizens who are most needy.

As regards political parties, including the ruling party, they have their funds which they use to finance their activities.

Let’s speak about the use of administrative resources more extensively. Is there a real threat of the use of administrative resources and how is this issue regulated?

An example of the use of administrative resources is, for example, when public servants are engaged in election agitation when they are supposed to perform their duties.

The same holds true for the use of government buildings, infrastructure, cars – i.e., the use of budget means for partisan aims. The law prohibits that as well.

There are talks also about to what extent government representative should appear at the launching of various projects. I think that, in such instances, talks about the use of administrative resources are exaggerated. I will reiterate, when budget monies are used to build and inaugurate a road, a bridge, that is a product of every citizen. If representatives of political opposition wish so, they can also attend that inauguration and gain the attention of media.

The main point is that administrative resources – both human and material – must not be used for partisan aims. After the end of the working day, civil servants have the right to express their support to a political party which they like.

Let us continue with the topic of Maestro satellite antennas. The TV company itself and some non-governmental organizations, including the Georgian Young Lawyers’ Association, believe that the seizure of antennas was illegal because the Prosecutor’s Office lacked sufficiently sound evidence. What is your take on that?

One should underline that we cannot interfere in the investigation. Nor can we intrude into the competence of the court. We can analyze information which was made public. According to that information, representatives of Global Contact Consulting distributed antennas to voters which looked very much like bribery. Many citizens watched video footages, aired by various TV stations, featuring citizens who said that they received antennas as gifts from one political movement leader. The law does not distinguish what voters are bribed with – antennas, TV sets or any other object. In this case, the investigative materials showed signs of bribery and an investigation was launched. Then it became clear for the investigation that the process of that distribution must be stopped because antennas were given to citizens on a mass scale. Therefore, antennas were seized on the basis of Article 151 of the Code of Criminal Procedure of Georgia. Paragraph 3 of that Article states that if property is corrupt, is used to commit a corrupt crime, the law provides for a possibility for the seizure of that property. The investigation used that possibility; the court agreed to the arguments of the prosecutor; a court ruling was delivered; and, consequently, antennas were impounded.

Then, also according to the information gathering during the investigation, Global Contact Consulting decided to have Maestro import and distribute antennas and started the import of antennas in the name of Maestro TV company. These antennas were intended to be distributed according to a proven scheme.

Talks about insufficient evidence belong to a topic of judgment. Citizens were provided with the information. The media also reported that there was a negotiation between Bidzina Ivanishvili and Maestro representatives. Stickers attached to antennas belonged to Global Contact Consulting. In a number of cases, those stickers were still present before Maestro attached its own stickers over them. The thing is that, in reality, these antennas belonged to Global Contact Consulting. The ruling of the court shows that there is a substantiated doubt. The investigation continues, and it will establish what we are dealing with.

This evidence might seem insufficient for some, but it is clear for an objective observer – the standard of proof is sufficient to say that a sham deal was cut. As for the legal ground, it is what Article 151 of the Code of Criminal Procedure of Georgia provides and was indicated by the court in its ruling.

GYLA asserts that the seizure would be legal if there had been a concrete accused person or a case had involved a grave crime.

That is an interesting statement. We studied it thoroughly and released an analysis of Article 151, which GYLA reviewed. However, our analysis contains, among other legal substantiation, paragraph 3 of the Article whereas GYLA’s analysis refers only to two paragraphs of that Article and the third paragraph – which is relevant in this situation – is deliberately omitted. Paragraph 1 of Article 151 says that you must have an accused person, which we do not have. Paragraph 2 requires that there must be a grave or very grave crime, which is also absent, while Paragraph 3, which was skipped by GYLA, refers to a situation when property is corrupt and the corrupt property is seized.

Since the legislation has been amended, voter bribing has become a classical corrupt crime. Voter bribing is considered as a corrupt crime by Transparency International, the Council of Europe Group of States against Corruption (GRECO), and it is categorized as such in various scientific literature.

When voter bribing is carried out by means of some property, it is logical that that [means] must be stopped. To that end, a relevant mechanism must be put in place. That is contained in Paragraph 3 of Article 151. When property is corrupt and channeled toward the bribing of voters – that is exactly the wording in the ruling – there is a ground for seizing it.

GYLA’s subsequent critical public statement referred to one circumstance where they tried to rectify that flaw. They stated that classificators did not list voter bribing as a corrupt crime. That is because of the simple reason that those classificators had been drawn up before the voter-bribing provision was amended – Article 1641. We will reflect that issue in corresponding classificators.

The court was also criticized for the absence of evidence to support its ruling. Why did that happen so?

The court ruling in this case is not a judgment of conviction, which contains a very detailed description of all evidence. We have published investigative materials; the motion of the prosecutor which describes why, based on what evidence, the prosecutor demands that the property be impounded. The court ruling indicates the ground – what arguments it agrees and disagrees with. There is no detailed judgment there. The court ruling must not be taken in isolation from other materials of the case. Consideration of those materials in their entirety makes the court motivation clear.

 These interviews first appeared in Tabula Georgian Issue # 112, published 3 September 2012.

Tamar Chugoshvili: It is very difficult to prove that voter bribing is a corrupt crime 

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