Preventing corruption, financial malfeasance and abuse, as well as tightening legal penalties for criminal offenses that violate electoral rights, would significantly improve their protection and political rights and contribute to strengthening the democratic process in Montenegro.
This is stated, among other things, in the recommendations for improving the Criminal Code (CC) of Montenegro that the Center for Democratic Transition (CDT) sent to the Parliamentary Committee for Comprehensive Electoral Reform, and which "Vijesti" had access to.
The CDT proposed to the Committee the introduction of four new provisions of the Criminal Code, as well as the amendment of one existing article of this regulation, suggesting that the new provisions should cover giving and receiving bribes for voting, bribing MPs or councilors, forging voters' signatures to determine the voter list, and concealing contributions and benefits, and they proposed an amendment to Article 193v, accepting contributions from prohibited sources, i.e. from abroad.
They stated that their recommendations aim to “improve the quality of protection of electoral rights and prevent political corruption and abuses in the financing of political entities and election campaigns”, adding that the protection of electoral and political rights through criminal sanctions is “of crucial importance for preserving the integrity of democratic societies”.
"When preparing our recommendations, we also had in mind the opinion of the European Union (EU) from the recently published 'non-paper' which, rightly, draws attention to the inadequate framework for sanctioning illegal financing of political entities and election campaigns," said the CDT.
They said that it is necessary to create a legal framework that will ensure that violating the law "does not pay off", and that by improving regulations, conditions are created for the competent state authorities to act effectively in cases of violations of the law.
"We believe that changing this penalty policy would be a significant step forward in improving the quality of our electoral processes, but also contribute to the actual fulfillment of the recommendations of GRECO, the EU and the Venice Commission," the recommendations state.
Vote buying and political corruption
The CDT said that in the last 25 years, as long as they have been observing elections, there has not been a single electoral process that has not been marked by allegations of "buying and selling votes", adding that it would therefore be important to amend the Criminal Code to also criminalize active electoral bribery.
They proposed that giving or receiving gifts, rewards or any benefit with the aim of influencing someone's vote in an election or referendum constitutes a criminal offense punishable by up to three years in prison, and that if such an offense is committed by a member of a polling station committee or another person who has an official role in the election process, a more severe penalty is provided, from six months to five years in prison, with mandatory confiscation of the benefit received.
They also point out that citizens have often witnessed "sudden and difficult to explain changes in the political camp", which, according to the CDT, ultimately resulted in a change in the will expressed by voters during the electoral process.
"In these cases, the public often believed that it was a question of 'buying mandates', that is, that in cases of the appearance of 'fly-by-wire MPs', the key reasons were not beliefs or political stance, but that political corruption was behind it all," the document states.
They said that introducing the criminal offense of "bribery of MPs or councilors" could enable state authorities to conduct more efficient procedures in order to determine the real reasons for such political "overflights".
The CDT stated that in Croatia, bribing MPs and councilors with the aim of influencing their votes is a criminal offense, that the Criminal Code in Germany contains a similar provision, and that the Supreme Court of Croatia assessed that an attempt to "buy" a councilor's mandate represents a "serious threat to the democratic order and public interest."
This NGO proposed that a member of parliament or councilor who accepts a bribe or other benefit in order to vote in a certain way could be punished with imprisonment from one to eight years, and that the same punishment be imposed on the person who offers or promises a bribe, as well as the intermediary in that process, and that the benefit received be confiscated.
Electoral abuses and foreign funding
The document also states that forging voter signatures for the purpose of establishing the electoral list should be established as a separate criminal offense.
"It is indisputable that the signatures of a relevant number of voters are a condition for establishing an electoral list... Since the importance of this issue for the electoral process is immeasurable, this is sufficient reason to criminalize activities aimed at forging signatures for the purpose of establishing an electoral list as part of the group of criminal offenses against electoral rights," the CDT's recommendations state.
They proposed that forging voter signatures in order to establish an electoral list be a criminal offense punishable by imprisonment of six months to three years, and that an attempt to do so would also be punishable. It added that if a list based on forged signatures were officially established, the perpetrator would face imprisonment of one to five years.
"Voter signature forgery is a recurring phenomenon in election cycles, and the CDT has repeatedly, in an attempt to prevent this phenomenon, forwarded hundreds of reports from citizens to the competent prosecutor's offices about its existence. Paradoxically, our organization received a formal notification from the prosecutor's office that our report had been rejected, which, at the same time, states that the existence of this phenomenon has been established," the CDT said.
They also assess that allegations of financing political entities from prohibited sources also “follow all our electoral processes”. They pointed out that Article 193v of the Criminal Code criminalizes the acceptance of contributions from prohibited sources, and that this refers to a responsible person within a political entity who receives money, a contribution or some other benefit, even though he knows, or should have known, that such funds come from sources not permitted by law, and that this is punishable by a prison sentence of six months to two years.
The CDT further states that if it is determined that the funds were obtained through criminal activity, the mere failure of the responsible person to know about their origin is sufficient to be held liable, and that the law also stipulates that all illegally received contributions and benefits are confiscated.
This NGO questioned why only income from criminal activities is mentioned as a disputed origin, while donations from abroad are not included in the same way, even though they can have the same impact on the electoral process, and that the article of the law deals exclusively with accepting prohibited donations, but not with their giving.
Therefore, they proposed that anyone who knowingly gives money, a contribution or other benefit to a political entity from a source they know is prohibited be sentenced to up to a year in prison, and that if the donor of funds was obliged to know that it was an illegal source, they could be sentenced to up to six months in prison.
It was also suggested that a responsible person in a political entity who should have known that the funds came from criminal activities or from abroad could be punished with up to one year in prison.
Penalize unreported contributions
The CDT also stated that undeclared donations, or contributions to political entities, are another issue that should be addressed. They stated that the restrictions introduced by the Law on Financing Political Entities and Election Campaigns serve as a good basis for sanctioning these phenomena, but that if the event is processed only as a misdemeanor, the restrictions will not have full meaning and "will actually be an invitation to violate the law."
"We are all familiar with the example of an undeclared donation in the 'Envelope' affair. Assuming that it was an undeclared donation of legal money, the sanction for such behavior was mild and did not reflect the seriousness of the violation of the rules. We believe that this is one of the key problems due to which the legal framework for sanctioning violations of party financing rules was declared insufficiently adequate," the document states.
That is why, say the CDT, they propose introducing a new provision in the Criminal Code, which would criminalize a political entity that fails to report a donation from a natural or legal person that is 10 percent higher than the limit allowed by law.
"A responsible person in a political entity who fails to report to the competent authority a payment or other contribution from a natural or legal person in a value of more than 10 percent greater than the maximum amount of the contribution permitted by law shall be punished by imprisonment for a term of six months to two years. The donated funds or benefits shall be confiscated," the proposal reads.
"Whoever wants a fair race will have no dilemma"
The CDT stressed that they believe that political entities that "at least verbally" advocate for improving electoral processes will "unequivocally support the recommendations."
"Those who truly want a fair electoral race, a reduction in the advantage that certain subjects have even before it begins, and the further development of our democracy will have no dilemma about where to go," the document states.
They stated that their proposals were not directed against a specific political entity, but that their target was "lawbreakers."
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