Bribery of Mandate Holders – Legal Classification, Significance and Regulations
Concept and Definition of Bribery of Mandate Holders
Bribery of mandate holders refers in German law to the unlawful influencing of persons holding a public office or mandate, in particular members of legislative bodies at the federal, state, or municipal level. The criminal offense aims to protect the integrity and functionality of parliamentary opinion-forming and decision-making processes. Generally, a distinction is made between active and passive corruption, with bribery of mandate holders constituting a form of political corruption.
Historical Development and Legal Foundations
Legal Anchoring in the Criminal Code
The criminal prosecution of bribery of mandate holders is essentially based on Sections 108e, 331 et seq. of the German Criminal Code (StGB). The current Section 108e StGB was introduced in 2014 on the basis of the UN Convention against Corruption and the requirement for internationally uniform standards, and regulates “Bribery and Bribability of Mandate Holders.”
Reference to International Agreements
With the ratification of the UN Convention against Corruption and through legislative initiatives at the European level, Germany has continuously developed the scope and handling of the bribery of mandate holders. The goal was to harmonize and sharpen regulations for combating political corruption.
Group of Perpetrators and Legal Interests Protected
Protected Legal Interests
The main legal interest protected by the offense of bribery of mandate holders is the functionality and independence of parliamentary democracy. It is intended to ensure that Members of Parliament fulfill their mandates free from undue external influence.
Persons Concerned
The object of the offense comprises Members of Parliament at all political levels; this concerns members of the German Bundestag, the state parliaments, as well as municipal representative bodies. Equivalent committees, such as international parliaments, can also be included if they operate in Germany or are subject to German legal norms.
Objective and Subjective Elements of the Offense
Objective Element of the Offense
- Act of Commission: Bribery of mandate holders requires that a benefit (material or immaterial) is offered, promised, or given to a mandate holder for a specific action or omission in connection with the exercise of their mandate (Section 108e (2) StGB).
- Consideration: In return, the grantor of the advantage expects certain conduct, such as casting a vote, making a speech, or refraining from certain actions – the so-called “connection” between the advantage and the improper conduct is constitutive.
- Relation to the Mandate: The act must be connected to the exercise of the mandate and must not relate solely to purely private matters.
Subjective Element of the Offense
Intent is required for criminal liability, meaning both the perpetrator and the mandate holder must at least tacitly accept the wrongful agreement or connection between the benefit and the exercise of the mandate.
Range of Penalties and Legal Consequences
Threat of Punishment
According to Section 108e StGB, bribery of mandate holders is punishable by imprisonment from three months up to five years. In less serious cases, imprisonment of one month up to three years is prescribed.
Collateral Consequences
In addition to the primary penal sanction, the court may order, under Sections 45 et seq. of the Criminal Code, the loss of rights, in particular eligibility for election and the right to vote. In serious cases, confiscation of assets obtained may also occur pursuant to Sections 73 et seq. StGB.
Distinction from Similar Offenses
Bribery and Acceptance of Advantages in the Public Service
Bribery of mandate holders must be distinguished from bribery (§ 332 StGB) and acceptance of advantages (§ 331 StGB) in office, as these refer to officeholders and functionaries outside the scope of a mandate.
Legal Particularities
Particular attention must be paid during criminal prosecution to the provisions concerning the immunity and indemnity (§§ 46 GG, 36 AbgG) of certain mandate holders. For example, investigative measures against Members of the Bundestag generally require the Bundestag’s approval.
Practical Importance and Current Developments
Relevance in Parliamentary Work
Cases of bribery of mandate holders repeatedly come to public attention, for example in the context of lobbying scandals or donation affairs. In practice, providing evidence is often challenging, as clear distinctions must be made between permissible representation of interests and criminal conduct.
Reform Efforts
Against the background of recurring corruption allegations, there are ongoing discussions regarding extending and specifying the offenses, particularly with regard to including backroom deals and agreements that are difficult to prove. At the European level, there is also a tendency to implement minimum penalties and further preventive measures.
Summary and Outlook
Bribery of mandate holders constitutes a central criminal offense for safeguarding the integrity of parliamentary decision-making processes. It is protected by extensive national and international regulations and is subject to continuous development in order to combat new forms of political corruption. The interplay of transparency laws, compliance regulations, and effective prosecution remains an essential component in combating corruption in the political arena.
Frequently Asked Questions
Which legal regulations apply to bribery of mandate holders in Germany?
Bribery of mandate holders in Germany is primarily governed by Section 108e of the Criminal Code (StGB). The provision distinguishes between active bribery (offering, promising, or granting advantages) and passive bribability (requesting, receiving a promise of, or accepting advantages) for mandate holders, particularly members of legislative bodies at the federal, state, and European levels. Criminal liability requires that the advantage is connected to a concrete “action or omission in the exercise of the mandate.” Since the legislature reformed the section in 2014 following a decision by the Federal Constitutional Court, the regulation now covers a significantly broader range of protection than before, especially with regard to mandate holders in parliamentary groups and committees. In addition to the Criminal Code, other legal provisions, such as the Members of Parliament Act and supplementary state laws, may also play a role. For prosecution, it should be noted that a formal complaint by the legislative body or the public prosecutor’s office is usually required.
Who qualifies as a mandate holder under the bribery regulations?
The term ‘mandate holder’ is precisely defined in legal terms. It covers all members of a representative body at the federal, state, municipal, and European Union levels. This includes members of the Bundestag and state parliaments, members of the European Parliament, and in many interpretations also local mandate holders, provided that they hold such a mandate. The office or mandate must actually be exercised, with the criminal protection possibly extending to individuals who have been elected but not yet sworn in. The decisive factor is not whether the activity is full-time or honorary, but solely the exercise of a public mandate. Officials are expressly not included here, as their bribery falls under Sections 331 et seq. StGB.
What are the requirements for criminal liability in cases of bribery of mandate holders?
The requirement is, first of all, that an unlawful advantage is offered, requested, or accepted in connection with the exercise of the mandate. The granting or acceptance of an advantage must relate to a specific behavior of the mandate holder in the context of their mandate, such as their voting behavior in committees or in plenary, exercising certain influence, or refraining from an action. The wrongful agreement, that is, the connection between the advantage and the mandate action, must be demonstrable. Criminal liability does not depend on whether the benefit is material or immaterial. Any improvement in position that is suited to influence voting behavior or other mandate actions is sufficient.
What penalties are imposed for bribery of mandate holders?
The penalty for bribery of mandate holders under Section 108e StGB is imprisonment from three months up to five years. In particularly serious cases, the term of imprisonment may range from one year up to ten years. An offense is considered especially serious if the perpetrator acts on a commercial basis or as a member of a gang formed for the continued commission of such offenses. In addition to imprisonment, collateral criminal consequences such as loss of mandate, loss of pension rights, or entry into the certificate of conduct may be imposed. Disciplinary measures can also apply, according to the respective Members of Parliament Acts.
What role do party discipline and internal party decisions play in the context of bribery of mandate holders?
From a purely legal perspective, the conduct of mandate holders within the framework of party discipline and internal party decisions is not inherently punishable. However, it becomes problematic if financial or other unjustified advantages are promised or accepted in exchange for certain behavior in party-internal votes or within the framework of party discipline. Criminal liability arises as soon as there is a so-called wrongful agreement between the benefit and the exercise of the mandate. Simply following a party decision is not punishable; however, accepting advantages for complying with or disregarding such decisions is.
Are attempts to bribe mandate holders also punishable?
Yes, attempted bribery of mandate holders is punishable according to Section 23 StGB. This includes both attempted bribery (offering or promising a benefit that is not accepted) and attempted bribability (requesting a benefit that is not granted). The threshold for criminal liability is crossed as soon as negotiations about a benefit commence, even if the actual action relating to the mandate is ultimately not taken or the benefit is not granted. Even a unilateral offer, without reaching an agreement, can already be relevant.
To what extent are foreign mandate holders covered by German law?
German criminal law (Section 108e StGB) generally applies to mandate holders who are members of a German legislative body. However, a particularity arises from international agreements and from Section 5 No. 15 StGB, according to which, under certain conditions, offenses against mandate holders of other states or supranational organizations can also fall under German criminal law, for example, in the context of intergovernmental cooperation and international agreements such as the United Nations Convention against Corruption (UNCAC). In concrete terms, this means that foreign mandate holders can also be protected by German law if certain conditions, such as a connection to German territory, are met.
