Concept and Definition of Electoral Coercion
Die Electoral Coercion is a criminal offense under German criminal law that protects the freedom of election as a central principle of democratic elections. The term describes the unlawful influence on the voting behavior of an eligible voter through coercive means such as violence or threats of serious harm. It is particularly relevant in connection with federal, state, local, and European elections.
Statutory Regulation
Criminal Code (§ 108 StGB)
Electoral coercion is governed by § 108 of the Criminal Code (StGB). The statutory text reads:
“Anyone who unlawfully coerces another person by violence or by threat of serious harm not to vote or to vote in an election, or to vote in a certain manner, shall be punished by imprisonment of up to five years or by a fine.”
Purpose of the Provision
The provision serves to protect the free formation of will of eligible voters and thus the integrity of the democratic election process. It aims to ensure that every eligible voter can make their voting decision uninfluenced and without fear of disadvantages.
Elements of the Offense
Voting Act
The regulation pertains to public elections in which political mandates are decided by vote or election. This specifically includes federal, state, local, and European elections. By contrast, internal company votes or elections within associations are not covered.
Acts of Perpetration
Violence
Violence, in the context of electoral coercion, means the use of physical force or its threat, which may be directed at the body of the eligible voter or objects significant to them. The use of violence must aim to break the will of the eligible voter and compel them to cast a vote, abstain, or vote in a way not of their own choosing.
Threat of Serious Harm
A threat is the announcement of a future harm which the perpetrator claims to have influence over its occurrence or prevention. The harm must be “serious,” that is, significant enough that the threatened harm is capable of inducing the victim to perform the desired act. For example, this may occur if a superior threatens an employee with dismissal should they not vote in a certain way.
Unlawfulness of the Coercion
Not every form of influence constitutes a criminal offense. The coercion must be “unlawful,” meaning it must not be justified by a higher-ranking legal interest or by self-defense. Legitimate election campaigning or persuasion, as long as they do not use impermissible means such as violence or threats, are therefore not included.
Subjective Elements of the Offense
Intent is required; that is, the perpetrator must know and intend that they are forcing the eligible voter through prohibited means to vote, abstain, or cast a particular vote.
Attempt and Completion
Both the attempt and the completed offense of electoral coercion are punishable (§ 108 para. 3, § 23 StGB). The attempt begins as soon as the perpetrator starts to carry out the act, for example in preparing the influence, provided it directly interferes with the election process.
Penalties and Legal Consequences
Electoral coercion is punishable by imprisonment of up to five years or a fine. Attempted electoral coercion is punished more leniently (§ 23 para. 2, § 49 StGB). Additionally, a ban on holding public office in accordance with § 45 StGB may also be imposed as an ancillary consequence.
Distinction from Other Criminal Offenses
Election Fraud (§ 107a StGB)
In contrast to electoral coercion, which targets the formation of the voter’s will, election fraud concerns the result of the voting, for example by falsifying or manipulating voting declarations or the counting process.
Electoral Bribery (§ 108b StGB)
While electoral coercion involves pressure by means of threats, electoral bribery uses advantages or gifts that are offered, promised, or granted for a particular voting act.
Examples from Case Law
Relevant court decisions on electoral coercion involve cases where employers, under threat of disadvantages, instructed employees to vote in a certain way or not to vote in works council elections. There are also individual cases where family members exerted pressure on each other.
Significance in International Contexts
Comparable protection of freedom of election exists in other democratic legal systems. Similar provisions are found, for example, in the Austrian Criminal Code (§ 264 StGB) and the Swiss Criminal Code (Art. 281 StGB), although the individual elements of the offense and penalties may differ.
Prevention and Safeguards
To prevent electoral coercion, secure and anonymous voting procedures are employed. Polling stations are monitored, and voting processes are generally to be conducted without observation. Reports of possible influencing of votes are taken seriously and pursued by election commissions.
Literature and Further Links
- Criminal Code (StGB) – § 108 Electoral Coercion
- Fischer, StGB, Commentary, 71st Edition 2024
- Tröndle/Fischer, Criminal Code and Supplementary Laws, Commentary
This article provides a comprehensive overview of all legally relevant aspects of electoral coercion under German law and systematically presents the legal foundations, interpretations, and distinctions.
Frequently Asked Questions
What criminal consequences can electoral coercion entail?
Electoral coercion is treated as a criminal offense under German law and is regulated in the Criminal Code (StGB) under § 108 StGB (“Coercion of Voters”). Anyone who unlawfully coerces another by violence or threat of serious harm not to vote, to vote differently, or to cast their vote at all, makes themselves liable to prosecution. The act can be punished by imprisonment of up to five years or by a fine. Liability exists regardless of whether the attempt was successful or whether actual influence on the election result occurred. Even an attempt at electoral coercion is already punishable. In especially serious cases, such as systematic influencing or the use of violence against several people, even higher penalties can be imposed. Furthermore, the offender’s right to vote may also be revoked.
When does a threat in the sense of electoral coercion exist?
A threat in the context of electoral coercion exists when the voter is threatened with a serious harm in order to influence their will formation and exercise of their right to vote. The “serious harm” may be economic, social, or personal in nature, such as loss of employment, defamation, or physical abuse. What is decisive is that the threat is aimed at manipulating the voter’s decision. The seriousness of the threat must, from the victim’s perspective, be sufficient to place an average person under pressure. Mere recommendations or appeals, as long as they are not linked to a disadvantage, are not sufficient.
In what situations is it possible to file a complaint for electoral coercion?
A complaint can generally be filed whenever there is reason to suspect that someone has tried to force or has forced another person, by violence or threats, to vote, abstain, or change their voting decision. This can occur during the voting process as well as beforehand, for example at party meetings, election campaign events, or during postal voting. The complaint can be made anonymously or by name to the police, the public prosecutor, or the election authority. It is advisable to provide evidence such as witnesses, messages, or other documentation to support the investigation.
What role does ballot secrecy play in prosecuting electoral coercion?
Ballot secrecy is a fundamental principle of every democratic election and is directly threatened by electoral coercion. Ballot secrecy is intended to guarantee that every eligible voter can cast their vote freely and without influence, without control or subsequent verification. When electoral coercion occurs, this fundamental right is violated, which is why law enforcement authorities take such cases particularly seriously. The violation of ballot secrecy can also be prosecuted as a separate offense (§ 107c StGB – Violation of Ballot Secrecy). However, in investigating electoral coercion, the victim’s data protection must be balanced with the interests of law enforcement.
Are attempts at electoral coercion punishable?
Yes, under German criminal law, not only the completed act but also the attempt at electoral coercion (§ 108 para. 2 StGB) is explicitly punishable. This means that as soon as someone undertakes concrete actions aimed at coercing a voter (e.g., issuing a serious threat that has not yet led to action), it already constitutes a punishable attempt. The crucial factor is that the perpetrator immediately begins carrying out the act. Punishing the attempt is intended to prevent such offenses from being prosecuted only after voting behavior has already been influenced.
How does the law define “violence” in the context of electoral coercion?
Violence, in the sense of electoral coercion, means the use of physical force or the application of physical means to force a voter to cast a particular vote, abstain, or cast a vote. The use of violence may be directed directly against the voter’s body (e.g., hitting, detaining, imprisoning) or, by means of violence against objects, if this is intended to influence the voter’s will. The threat of violence can, under certain conditions, also be considered violence in the legal sense if the threatened compulsion is suitable to cause the desired action in the victim. Mere psychological pressure, insults, or social exclusion are not sufficient, unless they are associated with violence.
Are there differences in the prosecution of electoral coercion compared to other election offenses?
Electoral coercion differs from other election offenses such as election fraud (§ 107a StGB) or electoral bribery (§ 108b StGB) particularly through the punishable conduct, which is aimed at the targeted influence of the voter’s freedom of will by violence or threat. With other election offenses, for example, manipulation of election results or offering or accepting advantages are at the forefront. With regard to prosecution, it should be noted that the investigating authorities generally pursue electoral coercion as an official offense, that is, they must investigate ex officio as soon as they become aware of the offense. Prosecution is also not dependent on a complaint from the victim.
