Definition of voter bribery
Voter bribery is a term from criminal law that encompasses the unlawful influencing of voting behavior by granting or promising advantages. It is classified as an electoral offense and, in the legal context, serves to protect the integrity and freedom of democratic elections. Relevant regulations can be found in German law, particularly in the Criminal Code (StGB) as well as in specific election laws.
Legal basis of voter bribery
Criminal Code (StGB)
According to § 108b StGB (Voter Bribery), it is a criminal offense to offer, promise, or grant an advantage to an eligible voter in exchange for their behavior during an election. The provision states:
“Whoever grants, promises or offers an advantage to another for their vote in an election or ballot in a legislative body of the federal, state, municipality, or other territorial authorities shall be punished with imprisonment of up to five years or a fine.”
The reverse case, i.e., accepting an advantage in exchange for one’s own voting behavior, is also punishable under § 108b para. 2 StGB and is subject to the same penalties.
Federal Election Act (BWahlG) and state election laws
In addition to the StGB, the Federal Election Act (§ 107, § 108 BWahlG) as well as the state election laws regulate aspects of electoral bribery and voter bribery. These provisions establish clear rules for the conduct of individuals and parties regarding election decisions and voting. The right to vote should remain free from undue interference and manipulation.
European and International Regulations
There are also regulations at the European and international level to prevent voter bribery. The European Convention on Human Rights guarantees the right to free and secret elections, which must not be compromised by corruption or bribery. International anti-corruption conventions, such as the United Nations Convention against Corruption (UNCAC), aim at the comprehensive combat of corruption in the political sphere.
Elements of the offense of voter bribery
Perpetrators
Voter bribery can be committed by anyone. The perpetrator may be a candidate, an election assistant, or third parties who intend to influence the election result.
Object of the offense
The objects of the offense are all legally protected public elections or ballots at the federal, state, and municipal levels. This also includes intra-European and internationally relevant ballots, provided national criminal law applies.
Conduct constituting the offense
The punishable act consists in offering, promising, or granting an advantage, or in demanding, soliciting, or accepting an advantage by the eligible voter for their vote. The advantage may be material or immaterial in nature, such as monetary values, gifts, perks, or favors.
The conduct must directly relate to the act of voting and stand in an improper connection to the election act.
Subjective element of the offense
At least conditional intent is required. This means the perpetrator must act knowingly and deliberately or at least accept that their behavior will influence the election.
Unlawfulness and guilt
The act must be unlawful and culpable. Grounds for justification or excuse are only conceivable in exceptional cases and must be examined individually.
Range of penalties and sanctions
Voter bribery is punishable by imprisonment for up to five years or by a fine. The penalty applies to both the provider and the recipient of the advantage. Attempted bribery is not explicitly regulated in the case of voter bribery, however, preparatory acts are regularly interpreted narrowly in electoral law.
In addition, conviction for voter bribery may lead to the loss of both the passive and active right to vote (cf. § 45 StGB), which constitutes a significant interference with civil rights.
Distinction from electoral lists and related offenses
Relationship to election fraud (§ 107a StGB)
While voter bribery concerns influencing the voter by offering advantages, election fraud targets manipulation of the election result through incorrect counting or voting. Both offenses must be distinguished from one another, but significant influence can lead to the fulfillment of both offenses.
Difference from other corruption offenses
Voter bribery differs from classic corruption offenses such as acceptance of bribes and bribery (§§ 331 ff. StGB), since the granting or acceptance of advantages occurs in the context of general elections or ballots and not within public service.
Free election advertising and permissible campaign measures
Not every campaign activity is improper or punishable. Within the context of election campaigns, certain incentives—such as informational material, small promotional gifts of little value, or invitations to events—are permitted, provided these do not substantially impair free formation of will and are not granted as consideration for voting.
Procedure and enforcement
Investigation proceedings and prosecution
Voter bribery is a public offense and is prosecuted ex officio as soon as the authorities become aware of sufficient suspicion. Complainants may include affected parties, competitors, authorities, or private individuals. Investigating authorities are required to proceed expeditiously and discreetly in order not to jeopardize the integrity of elections.
Legal consequences for the election
If voter bribery is proven, it may—depending on the extent and nature of the offense—lead to the annulment of the entire election or individual votes. The respective election laws provide for corresponding regulations on contesting elections.
Practical examples and case law
Insights from practice
In the past, various cases of voter bribery have been uncovered in Germany and other countries, for example by candidates distributing money or gifts. The organized transportation of voters in exchange for payment or other benefits has also, in some cases, been classified as punishable voter bribery.
Case law
When interpreting the offense, courts attach particular importance to context and the intensity of influence. Minor gifts (e.g., ballpoint pens) are regularly deemed socially acceptable and do not constitute punishable voter bribery, provided there is no concrete connection to voting. Pivotal decisions in this respect include cases from federal and municipal elections, in which courts regularly assume voter bribery where there is systematic influence through material promises.
Significance in a democratic constitutional state
Voter bribery undermines trust in the democratic electoral system and impairs the free formation of will among eligible voters. Consistent criminal prosecution serves to protect democracy and to ensure fair, transparent decision-making processes in the political arena.
References
- Criminal Code (StGB), in particular §§ 108, 108a, 108b
- Federal Election Act (BWahlG)
- Commentaries on the StGB and BWahlG
- Decisions of higher courts on election fraud and voter bribery
- State election laws and relevant literature on political corruption
Note: This overview provides a comprehensive, legally sound presentation of the concept of voter bribery under German law. It is intended for anyone wishing to gain deeper information on this topic.
Frequently asked questions
What legal regulations exist in Germany concerning voter bribery?
Voter bribery in Germany is regulated in the Criminal Code (StGB), especially in § 108b StGB (“Voter Bribery”). This provision criminalizes the acceptance or promise as well as the granting of advantages for a specific election decision. The provision protects the constitutional principle of free and secret elections and makes clear that both the person who grants or promises a benefit to an eligible voter and the voter who accepts or solicits such a benefit are subject to punishment. The legislature covers not only main election events like federal, state, or local elections, but also elections to other legally determined bodies provided their conduct adheres to democratic principles. Voter bribery is punishable by imprisonment of up to five years or a fine. It is particularly noteworthy that the mere offer or promise of a benefit is already sufficient, even if it does not actually influence voting behavior.
Which actions are considered voter bribery in the legal sense?
Legally, voter bribery comprises any action in which an eligible voter is promised, offered, or granted an unjustified advantage for exercising or refraining from exercising their voting right, provided the act aims to influence their will formation. This includes financial contributions, gifts in kind, promises of benefits, as well as immaterial advantages such as the prospect of a job or other privileges. The decisive criterion for criminal liability is that the advantage relates to a specific election act and is granted as consideration for the desired conduct in favor of or against a candidate or party. It should be noted that criminal responsibility does not require the promised action to be carried out; the mere offer or acceptance is sufficient.
Who is punishable: only the provider of an advantage or also the recipient?
Under German law, both the provider and the recipient of an advantage are liable for voter bribery. This means that not only does the person who offers, promises, or grants an eligible voter a benefit for the purpose of influencing the election make themselves liable, but so does the recipient who accepts or solicits the advantage. The legal provision in § 108b StGB is thus designed as reciprocal punishability (“mirror liability”). Aiding and abetting such acts are also punishable, so both direct and indirect involvement in voter bribery are sanctioned.
Is attempted voter bribery also punishable?
Yes, attempted voter bribery is expressly punishable under § 108b paragraph 2 StGB. This means that even attempting to induce an eligible voter to vote or abstain by promising, offering, or granting an advantage—even if the attempt ultimately fails—can be prosecuted. It is not necessary for the voter actually to be bribed or to vote accordingly. The punishability of the attempt is an essential legislative instrument for the effective prevention and prosecution of voter bribery.
What penalties are threatened for voter bribery?
Sanctions for voter bribery are anchored in the Criminal Code and generally provide for imprisonment of up to five years or a fine. The exact measure of punishment depends on the specific case and is determined by the seriousness of the offense, the extent of the attempted influence, and the degree of involvement of each perpetrator. In addition, secondary consequences such as loss of the right to stand as a candidate or to vote (active or passive voting right) under § 45 StGB may be imposed for a defined period. Particularly serious cases or organized voter bribery are prosecuted more strictly by the judiciary.
Are certain elections especially protected, or do the regulations apply universally?
The statutory provisions on voter bribery apply to all public elections in Germany, in particular federal, state, and local elections, but also to European elections and other legally regulated ballots, provided they are subject to the principle of free and secret voting. The regulations also extend to elections in professional associations and certain public law bodies, provided this is prescribed by law. Decisive for the application is that the election is conducted in a legally regulated and public procedure.
Are there exceptions or justifications for voter bribery?
Criminal law does not recognize any express exceptions or justifications for voter bribery. Any form of granting or accepting advantages in connection with an election is generally sufficient for criminal liability. However, in individual cases, personal guilt may be mitigated by special situations of compulsion or mistaken assumptions about the legal situation. The existence of so-called error of facts regarding the offense, if proven, would lead to impunity, but in practice, this is very rarely recognized since the legal situation on voter bribery is clear and widely known. A classic ground for justification, such as self-defense, is practically excluded in the context of voter bribery.
