In December 2011 the Parliament of Georgia upheld amendments to rules about party financing and other relevant regulations. These amendments impose severe and disproportionate limitations on voters, the private sector: business, non-governmental organizations outside of the election period, writes Lela Taliuri, lawyer at Georgian Young Lawyer’s Association
According to the amendments to the Criminal Code of Georgia restrictions for Vote Buying (Article 1641) apply not only during the period before an election as it was previously stated by law, but throughout, even not during an election period. If a legal entity delivers food supplies of small value to voters asking them to vote for a certain political party in return, it is subject to liquidation. Moreover this article introduces a criminal liability for voters: In addition to a physical or legal person who delivers goods or services for political purposes being liable to criminal punishment, an ordinary voter who asks for or receives money or other property/services from a given party is so too. It means that in certain cases voters can be held criminally liable in ways that were not anticipated in previous legislation at all. Namely, a voter, who request or receives money or any other gift from a political party or a person affiliated with a party, can be sentenced to up to 3 years of imprisonment or be subjected to a fine. “ For a political purpose, direct or indirect offer, promise, transfer, provision of money, securities (including financial instrument), other property, property rights, service, or any other benefit, or consciously requesting or receiving any such thing, or making ostentatious, hypocritical or any other agreement for the purpose of evading limitations established by law, shall be punishable by up to three years of imprisonment or fine.“
Law states three exceptions from this prohibition. First, this article does not include party campaign accessories of a political union of citizens – T-shirts, caps, hats, flags and other similar items. Second, a person shall not be subject to criminal liability for political or campaign promises related to future appropriation of budget funds and future implementation of state policy. Third, the commission of activities envisaged by this article, a legal person (expect for a party which is not subject to criminal liability) shall be punished by liquidation or deprivation of the right to operate and/ or a fine.
The noted regulation is unreasonably strict, particularly in view of the fact that the norm is ambiguous. Firstly, in terms of the purpose, there is no clear definition of what political purpose mean. Compare this to the previous formulation of Article 1641 the purpose was obvious – for supporting election subject or abstain from voting in elections. Political purpose is too broad and might be subjected to the different interpretation. Secondly, liability will be imposed on a voter regardless of the price of a monetary gift or any other good or service. If a voter asks a politician for 10 lari to buy some medicine, he or she might be imprisoned for up to three years. If someone receives gifts from the candidate, that person will be punished with up to 3 years’ imprisonment. Criminally punishable is not only direct, but also indirect tampering. Under such wording, bribery committed by a particular individual can always be linked to some political party. For example, if an individual (maybe a feigned accomplice) not acting on behalf of a party, asks a voter to vote in support of a given party receiving in return some amount/service, the crime can be construed as committed by that party indirectly, i.e. through somebody else.
We consider it expedient to make the criminal legislation more stringent in this respect. While the government is allowed broad excess to the use of administrative resources and campaigning. The law does not provide for the same kind of strict limitations on officials, civil servants, in general, and other people engaged in the government sector that by their activities support the ruling party through the use of administrative resources or by employing other methods. The legislation does not contain a special article assigning criminal liability for such breeches of law dealing with unlawful use of administrative resources by civil servants, gaining advantage in campaigning through official capacity, and using budgetary funds in preparing materials depicting the campaigning entities insignia. This will only be responded to with an administrative sanction; a fine of 2 000 lari for abuse of administrative resources and usage of official capacity in violation of the requirements of this law during election agitation and campaign. Compare this to ordinary voters, on whom liability will be imposed regardless of the price of a monetary gift or any other gift they request or receive.
Bribing a voter and transferring to him a property in return is, of course, unacceptable. However, parliament should change the law to ensure the punishment for this violation be commensurate and reasonable. We believe that there should not be imposed criminal liability on the voter at all. Moreover, the legislator should establish a minimum amount which will be taken into consideration for a gift to qualify as vote buying for purposes of criminal liability. There should be some differentiation among goods and services and gifts according to its value. If a party or party affiliated person delivers goods or provides services whose value is below that limit, instead of criminal liability, administrative sanctions should be imposed.