Electoral Crimes in Spain (LOREG): Who Is Liable and Defence

Electoral crimes have a feature that surprises almost everyone summoned over them: they are not in the Criminal Code. They are set out in Organic Law 5/1985 of 19 June on the General Electoral Regime (LOREG), whose Chapter VIII of Title One, Arts. 135 to 152, contains a closed catalogue of offences, penalties and even procedure. As criminal lawyers in electoral offences, we explain who is liable, what conduct is punished and where the defence lies.

The LOREG as a Special Criminal Statute (Arts. 135 to 138)

Art. 138 LOREG sets the relationship with the CP: anything not expressly regulated in that chapter is governed by the Criminal Code, and the provisions of Chapter I, Title 1 of the CP — the general part — apply in all cases to the offences punished by the LOREG. The ordinary rules on intent and negligence, perpetration and participation and limitation therefore apply without more. Art. 136 LOREG resolves overlaps with a rule of alternativity: facts that can be classified under both the LOREG and the CP are always classified under the provision that applies the greater penalty.

Art. 137 LOREG imposes, for every offence in the chapter and in addition to the penalty set out in each article, special disqualification from the right to stand for election: an automatic consequence that often matters more to the client than the fine itself.

Art. 135 LOREG draws the subjective and documentary perimeter: public officials for these purposes are those who qualify as such under the CP, anyone performing a public function connected with the elections and, in particular, the Chairs and Members of the Electoral Boards, the Chairs, Members and Scrutineers of the polling stations and their substitutes; and official documents are the electoral register and its authorised copies, the minutes, lists, certificates, vouchers or appointment credentials of those who are to take part in the process. That twofold extension turns a citizen appointed by lot, for a single day, into a possible offender under provisions reserved for officials.

Failing to Attend Polling Station Duty (Art. 143 LOREG)

This is by far the most frequent query. Art. 143 LOREG punishes the Chair and Members of polling stations, and their respective substitutes, who fail to attend or to perform their duties, abandon them without legitimate cause, or fail without justified cause to comply with the excusal or prior notice obligations imposed by the Law, with 3 months to 1 year in prison or a 6 to 24-month fine.

Three points deserve emphasis. This is not an administrative penalty: it is a criminal offence, with a criminal record if a conviction follows. The offence covers not only absence on polling day but also abandoning the post and failing to comply with the duty to excuse oneself or give notice in time, so that someone with a genuine reason who did not raise it in the required form and moment still falls within it. And the wording itself contains the levers of the defence, "legitimate cause" and "justified cause", evaluative concepts open to evidence.

Offences by Electoral Officials (Art. 139 LOREG)

Art. 139 LOREG punishes with 6 months to 2 years and a 6 to 24-month fine the public officials who breach the rules on the electoral register, or those on constituting Electoral Boards and polling stations and on the voting, decisions and counts they must carry out; who fail to draw up minutes, certificates and other electoral documents in the form and at the times laid down by law; who raise, without rational grounds, doubts about a person's identity or the extent of their rights; who suspend any electoral act without justified cause; who unduly refuse, hinder or delay protests or claims by those legally entitled to make them; who cause manifest harm to a candidate; or who fail to comply with the procedures for postal voting. It is a catalogue of breaches of duty which, read together with Art. 135.1, explains why a processing error can end up before an investigating court rather than in an administrative file.

Electoral Forgeries (Arts. 140 and 141.2 LOREG)

Art. 140.1 LOREG is the most serious offence in the chapter: 3 to 7 years in prison and an 18 to 24-month fine for officials who, abusing their office or position, alter without authorisation the dates, times or places of any electoral act, including preparatory ones; omit or record voters' names so as to mislead as to their authenticity; change, conceal or alter the envelope or ballot paper handed in by the elector; inaccurately count electors; improperly proclaim persons; allow, being able to prevent it, someone to vote two or more times or without legal capacity; or print, prepare or use ballot papers or envelopes in breach of the rules.

Two points of great practical value. Art. 140.2 LOREG provides for the negligent form: where the forgeries are committed through gross negligence, the penalty is only a 12 to 24-month fine. And Art. 141.2 LOREG deals with participation by someone outside the office: a private individual who takes part in any of those forgeries is punished with 6 months to 3 years in prison. Under the rule in Art. 136 LOREG, these penalties must also be compared with those for documentary forgery in the CP (Arts. 390 and 392 CP), applying whichever provision punishes more severely.

Multiple Voting and Postal Voting (Arts. 142 and 141.1 LOREG)

Art. 142 LOREG punishes those who vote two or more times in the same election, or who vote without capacity to do so, with 6 months to 2 years in prison, a fine of 6 months to 2 years and special disqualification from public employment or office for 1 to 3 years. Art. 141.1 LOREG punishes a private individual who breaches the procedures established for postal voting with 3 months to 1 year in prison or a 6 to 24-month fine: by its very mechanics, this is the ground where the line between materially helping an elector and breaching the procedure is most often litigated.

Vote Buying and Electoral Coercion (Art. 146 LOREG)

Art. 146.1 LOREG punishes with 6 months to 3 years in prison or a 12 to 24-month fine three types of conduct: (a) directly or indirectly soliciting an elector's vote, or inducing them to abstain, by means of reward, gifts, remuneration or promises of the same; (b) pressuring electors with violence or intimidation so that they do not use their right, exercise it against their will or disclose the secrecy of their vote; and (c) unjustifiably preventing or hindering the entry, exit or presence of electors, candidates, proxies, scrutineers and notaries in the places where acts of the electoral procedure take place. Art. 146.2 LOREG adds, for officials who use their powers for those ends, special disqualification from public employment or office for 1 to 3 years.

Campaign, Polls and Order at Electoral Acts

Art. 144.1 LOREG punishes with 3 months to 1 year in prison or a 6 to 24-month fine carrying out propaganda once the campaign period has ended, and breaching the statutory rules on electoral posters and reserved spaces, as well as those on meetings and other public propaganda events. Art. 144.2 LOREG raises the response to 6 months to 2 years in prison and a fine of 6 months to 1 year where the person spreading propaganda or carrying out campaign activities is a serving member of the Armed Forces or State security forces, of the regional or local police, a Judge, Magistrate, Public Prosecutor or a member of an Electoral Board.

Art. 145 LOREG punishes those who breach the rules in force on electoral polls with 3 months to 1 year in prison, a 12 to 24-month fine and special disqualification from a profession, trade, industry or commerce for 1 to 3 years: the professional disqualification is the truly onerous consequence here. Art. 147 LOREG punishes with 3 to 12 months in prison or a 6 to 24-month fine seriously disturbing order at any electoral act or entering the premises carrying weapons or other instruments capable of being used as such. And Art. 148 LOREG imposes in their maximum degree the custodial penalties laid down in the CP for slander and insult where they are committed during the campaign period and on the occasion of it.

Electoral Accounts and Candidacy Funds (Arts. 149 and 150 LOREG)

The general and candidacy financial agents have their own criminal regime. Art. 149.1 LOREG punishes with 1 to 4 years in prison and a 12 to 24-month fine those who falsify the accounts by improperly recording or omitting contributions or expenses, or by using any device that increases or reduces the accounting entries. Art. 150.1 LOREG punishes those agents and the persons authorised to operate the electoral accounts who misappropriate or divert funds for purposes other than those contemplated by the Law: 1 to 4 years in prison and a 6 to 12-month fine where the sums do not exceed EUR 50,000, and 2 to 6 years in prison and a 12 to 24-month fine otherwise. Outside the LOREG, irregular funding has its own offence in Art. 304 bis CP, carrying a fine of three to five times the value of a donation received in breach of the statutory limits.

Procedure, Jurisdiction and Limitation

Art. 151 LOREG does not create a special jurisdiction: the procedure follows the Criminal Procedure Act, although these proceedings take priority and are handled with the utmost possible urgency. It adds that the criminal action is public and may be brought without any deposit or security, which facilitates popular prosecution and multiplies the parties joined to the case. Art. 152 LOREG requires final judgments to be published in the provincial Official Gazette and a certified copy sent to the Central Electoral Board.

Limitation follows Art. 131 CP: five years for offences with no higher penalty, and ten where the maximum penalty is imprisonment of more than five and not exceeding ten years, the latter applying to the forgeries of Art. 140.1 LOREG and to the aggravated form of Art. 150.1. Where the penalty is composite, the one requiring the longer limitation period applies.

Common Defences

The first line is subjective: checking whether the person under investigation held, at the time of the facts, the status the offence requires (official in the broad sense of Art. 135.1 LOREG, candidacy financial agent, or polling station member or substitute actually appointed and notified). The absence of that personal quality rules out the aggravated form and may steer the facts into an ordinary offence or leave them outside any offence at all.

The second is the legitimate or justified cause of Art. 143 LOREG: documented illness, a concurrent unavoidable duty, supervening material impossibility or a defect in the notice of appointment. What proves decisive is documenting not only the reason but also when and how the excusal or prior notice was attempted, because the offence separately punishes the breach of that duty. The third is the mental element: most of these offences require intent, and showing that a discrepancy in minutes, a count or a register entry was a clerical error allows the defence to argue that no offence was committed or, in forgeries, the move to the negligent form of Art. 140.2 LOREG, punished only with a fine. A mistake about technical and changing electoral rules can also support a mistake of law.

The fourth is the boundary with administrative infringement: not every irregularity on polling day is a crime, and Section IV of the same LOREG chapter reserves its own sanctioning regime, outside the criminal courts. The fifth is evidence, which here is essentially documentary: constitution and count minutes, register certificates, appointment credentials and Electoral Board files. Verifying their authenticity, chain of custody and proper incorporation into the case file is usually more productive than a blanket denial of the facts. Where the investigation starts with police contact, it is worth reading first how to know if you have been reported to the police.