Criminal Lawyers in Electoral Crimes (LOREG)

Criminal Defence in Electoral Crimes

Electoral crimes are criminal offences established in Spain's Organic Law on General Electoral Regime (LOREG, Arts. 139-150) protecting the integrity of the democratic process and the free exercise of active and passive suffrage (Art. 23 Spanish Constitution). The protected legal interest is twofold: the purity of the electoral process as a pillar of the rule of law, and the individual freedom of the elector to form and cast their vote without pressure. Supreme Court case-law requires specific intent to alter the result or impede voting rights, ruling out mere administrative irregularities or procedural errors lacking material relevance.

The typified conducts are diverse and exhaustively listed. Officials who breach the rules on the electoral census, the constitution of polling stations or the count are liable under Art. 139 LOREG, and those who, abusing their office, commit electoral falsifications — in the voter count, ballots, envelopes or records, or by wrongly proclaiming someone elected — under Art. 140; a private individual who takes part in those falsifications, under Art. 141.2, and one who breaches the postal-vote procedure, under Art. 141.1. Vote buying (Art. 146.1.a LOREG) punishes soliciting votes or inducing abstention through gifts or promises. Electoral coercion (Art. 146.1.b LOREG) punishes pressuring voters with violence or intimidation not to vote, to vote against their will or to reveal the secrecy of their vote. And campaigning after the deadline (Art. 144.1.a LOREG) closes the catalogue, today with renewed relevance due to massive social media use the day before voting.

The penalties are graded by severity. Officials' breaches of the census rules carry 6 months to 2 years' prison and a fine (Art. 139). Electoral falsifications by officials, including records, rise to 3 to 7 years' prison and a fine of 18 to 24 months (Art. 140). Vote buying and electoral coercion are punished with 6 months to 3 years' prison or a fine of 12 to 24 months (Art. 146.1). Every electoral offence also carries special disqualification from standing for election (Art. 137 LOREG), and officials who use their powers to buy votes or coerce voters face disqualification from public employment or office of 1 to 3 years (Art. 146.2). Those disqualifications usually have greater consequences in political practice than the prison sentence itself.

Technical defence in electoral crimes is articulated on four axes. First, atypicality due to absence of specific intent: LOREG requires direct intention to alter the process, excluding administrative errors, regulatory confusion or negligent conduct from the criminal sphere. Second, strict typicity: LOREG describes very concrete conducts and analogy in malam partem is forbidden (Art. 4.1 CP); many electoral irregularities are administrative infractions, not crimes. Third, statute of limitations: most types expire after 5 years, counted from consummation, which in overlapping electoral periods becomes decisive. Fourth, the constitutional assessment of the penalty: the principle of proportionality and the impact on the fundamental right to passive suffrage (Art. 23 Spanish Constitution) compel restrictive interpretation of disqualification penalties, in line with Constitutional Court doctrine.

In current forensic practice, electoral proceedings present crucial particularities: proceedings take priority and are handled with the greatest possible urgency (Art. 151 LOREG); the Central Electoral Board and provincial boards have legal obligation to refer any criminal indicia to the Public Prosecutor; and the jurisdictional privileges of elected officials determine specific competences (TSJ, Supreme Court). At Alonso Sala, our criminal lawyers specialized in electoral offences intervene with the urgency the process demands: expert reports in electoral statistics to challenge census irregularities, analysis of documentary chain of custody, defence of good faith in procedural errors, and construction of strategies before electoral boards and courts. We treat each case aware that at stake is not only the defendant's liberty, but the future exercise of their right to passive suffrage and, where applicable, the preservation of the electoral seat obtained.