The Question

This question was posed on behalf of a staff member at Transparency International.

In Lithuania, a bill was submitted last week that would prohibit political parties from criminal prosecution, including electoral fraud. I am interested in examples of both fraudulent behaviour during elections and/or enforcement of political finance laws, where criminal sanctions were imposed against a political party. My main questions are therefore:

• Are there any examples around the world of cases where criminal sanctions were imposed against a political party?
• What are the legal regulations in this field, and are there any examples of countries where political parties would be explicitly excluded from the application of criminal responsibility?

 
Summary of Responses

In response to the questions, one member of the Practitioners’ Network highlighted recent developments in Spain. Previously, the Spanish penal code explicitly excluded political parties and work unions from criminal responsibility. At the end of 2012, the penal code was modified so that political parties would no longer be exempt from such responsibility (see Boletín Oficial Del Estado). 

Another member of the PN identified two sources containing country cases where criminal sanctions may be imposed against political parties. IFES is compiling a database for electoral offenses and sanctions, and the International IDEA Political Finance database includes country specific information about the sanctions applicable to political finance infractions. Cases in the database where criminal responsibility is explicitly stated in relation to political parties include Armenia and Estonia. 

A third PN member suggested an assessment of the bill submitted in Lithuania against the country’s international obligations undertaken through the signing of the United Nations Convention against Corruption. Members also emphasized the importance of considering the criminal responsibility of political parties as legal entities alongside the responsibility of party members as natural persons, whereby granting immunity to party leaders from individual criminal liability by virtue of party membership appears implausible.

Examples of Related ACE Articles and Resources

• Political Finance Enforcement 
• Enforcement Powers - Civil and Criminal 

External Resources

• International IDEA Political Finance database
• United Nations Convention against Corruption 
• Boletín Oficial Del Estado

Names of Contributors

• Abdurashid Solijonov
• Ana Cristina López
• Manuel Wally
• Bucumi Julius

International IDEA's Political Finance database could be useful in this case: http://www.idea.int/political-finance/ 

Spain.

In December 2012, the Spanish Penal Code (Código Penal) was modified (Ley Orgánica 7/2012, de 27 de diciembre, por la que se modifica la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal en materia de transparencia y lucha contra el fraude fiscal y en la Seguridad Social.) so that political parties would no longer be an exception as regards criminal responsibility. Therefore, article 31 bis paragraph 5 Penal Code has been modified so that it no longer makes reference to political parties and work unions as legal entities excluded from the application of criminal responsibility.

• https://www.boe.es/boe/dias/2012/12/28/pdfs/BOE-A-2012-15647.pdf

Dear Transparency International,

It would be important to distinguish whether political parties as legal entities, or also their members as natural persons, are immunized from criminal prosecution. I would find it hard to believe that Lithuania grants blanket immunity to party leaders for offenses, such as embezzlement of party funds, or to legislators for taking bribes, simply by virtue of their party membership.

Moreover, such immunization can be a double-edged sword, since criminal conviction necessitates a higher standard of proof (beyond reasonable doubt), than civil sanctions (on the balance of probabilities), facilitating their arbitrary (or frivolous) imposition.

Civil sanctions can entail financial fines, disqualification from elections, suspension of party registration, or even dissolution of political parties. If such civil sanctions are imposed, the burden of proof can rest on the defendant to refute allegations by administrative or executive agencies against it, while under a criminal regime, presumption of innocence prevails, shifting the burden on the state to prove the guilt of political parties and/or their members.

Further to Abdurashid's pertinent reference to IDEA's political finance database, which exhaustively catalogs criminal sanctions for fundraising offenses, IFES is currently compiling a database for electoral offenses and sanctions, beyond the scope of political finance.

Lastly, it would be interesting to assess Lithuania's political party immunity against its obligations under the UN Convention against Corruption UNCAC.

Best, Manuel

The question is very interesting for improvement of election credibility. Many electoral law offenders hide themselves behind the political party which is a moral person, different from the individuals, members of the party.

According to the general principle of the law, offenses are individual acts and the individuals have to be held responsible individually.

But with the evolution of the legislation and societies, in some domains, as corruption, moral persons are recognized to be held responsible and punished as such when it appears through investigations that the offenses have been committed under the cover of the moral persons using their members. The individual members are also punished. It is the same for Burundi anti-corruption act.

But, for election matters, few countries have legislated for punishing election crimes by moral entities. Only individuals, members of the political parties, are held responsible.

In Burundi, for 2010 electoral process, the Electoral Commission enacted what they called administrative sanctions to supplement the electoral legal framework, which sanctions can reach even the political parties as moral persons. If it is proved that the crime has been committed under the shelter of the political party, the later could be dismissed from the competition in a given polling stations, constituencies or all over the country depending on the offense. The political parties could also pay a substantial fine.

But where lays the problem in election matters? It is in implementation of the law. Competition supposes many contesting parties, some strong others relatively strong or weak. Sometimes political parties have sensitivity to national social groups, ethnicity, minority, gender etc and you have consequently blocs of the population accordingly. When you dismiss one political party, there is a risk to trigger a war in a country and the EMB will be accused of being partial notwithstanding  the the evidence they will present. It is why many countries prefer not to incriminate political parties as moral person but their members only for the sake of the public order and security. If you have two contesting parties, the democracy will not be effective if there is no competition. What is better?

Julius Bucumi

Inspector of Justice

Burundi