Bribery of parliamentarians

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Bribery of parliamentarians is a criminal offense in Germany and Austria that is directed against elections and votes as well as against the parliamentary opinion-forming process. The commission of the act violates the free, independent mandate of the MP. In most other countries, this criminal offense is more stringent than in Germany. Switzerland are working to introduce this criminal offense.

Germany

In Germany , bribery of parliamentarians has been a criminal offense since 1994, which is regulated in Section 108e of the Criminal Code. Both active and passive bribery are threatened with punishment from the offense . Since a new version of the law in spring 2014, the criminal offense relates to all actions in the performance of the mandate. Before that, he limited himself to buying votes.

The facts are:

(1) Anyone who, as a member of a federal or state parliament, demands an unjustified advantage for himself or a third party in return for it, allows himself to be promised or accepts that he will undertake or omit an action on behalf of or on instructions in the performance of his mandate, is punished with imprisonment of up to five years or with a fine.

(2) Anyone who offers, promises or grants an unjustified advantage for this member or a third party to a member of a parliament of the Federation or the Laender, that he will perform an act on behalf of or on instructions in the performance of his mandate shall also be punished or fail.

(3) The members named in paragraphs 1 and 2 are equal members

  1. a representative body of a local authority,
  2. a body, elected by direct and general election, of an administrative unit formed for a sub-area of ​​a state or a local authority,
  3. the Federal Assembly,
  4. of the European Parliament,
  5. a parliamentary assembly of an international organization and
  6. a legislative body of a foreign country.

(4) In particular, there is no unjustified advantage if the acceptance of the advantage is in accordance with the provisions applicable to the member's legal status. Do not represent an unjustified advantage

  1. a political mandate or a political function as well
  2. a donation permitted under the Political Parties Act or corresponding laws.

(5) In addition to a prison sentence of at least six months, the court may deny the ability to obtain rights from public elections and the right to vote or to vote in public affairs.

Problematic the relationship like between the indemnity of Deputies (Art. 46 para. 1 GG ) with the facts alternative of "selling" one's own voice be. Here, however, it is argued that the protective privilege of Article 46, Paragraph 1 of the Basic Law is exceeded by selling one vote. Article 38.1 sentence 2 of the Basic Law, which is violated precisely by the factual realization, cannot apply here either.

It is true that the facts are about elections and votes. But this also shows the work in the commissions and committees. Only the inclusion of the parliamentary group vote is controversial. According to the prevailing view, this should be rejected, although the political groups probably have an opinion-forming role in the parliamentary system. The objection is made that the parliamentary group does not have an independent constitutional position despite being mentioned in the Bundestag's rules of procedure.

The factual reference to the Members of the European Parliament is also problematic . Basically, it is questionable whether only the German MPs are affected by the regulation or whether a fundamental protection is intended. The constellations in which only Germans (buyers and sellers of the vote) are involved are unproblematic.

Municipal councils (i.e. municipal councils ) are also covered by the regulation, but these may not be executive acts that are decided upon. It must be a resolution of municipal ordinances or municipal statutes (typically zoning plans ).

According to the wording of § 108e StGB, the election or the vote at the time of the "purchase" must still be pending. Otherwise, only bribery ( § 332 StGB) and bribery ( § 334 StGB) come into consideration in the case of subsequent bribery .

As a corporate offense , the bribery of parliamentarians is already completed when the attempt to bribe members of parliament begins. It does not necessarily have to have been influenced. However, it is then possible that the delegate of fraud made himself liable to prosecution under Section 263 of the Criminal Code if he merely pretended to orient his behavior towards the purpose of buying / selling votes. Intentional intent is assumed on the inner side of the facts.

As a legally possible side effect of § 108e StGB, active and passive voting rights can be withdrawn .

The criminal liability is much more narrowly defined than in the civil service law , so that the law is described by critics as practically ineffective.

History (Germany)

Up until 1994, bribery of members of parliament was not a criminal offense in Germany. Contrary to today's view, it has been argued that such a criminal offense would be in conflict with the constitutional regulation of the independence of MPs.

Since 1951 the rules of procedure of the Bundestag stipulated that the Bundestag could give itself an order of honor . The German Bundestag made use of this option only in 1972. The reason was the failed vote of no confidence in the Brandt government . A number of MPs had voted against their own group at the time. Individual MPs had indicated that they would have been offered economic advantages in return for certain voting behavior. After German reunification , it became known that the Ministry for State Security had also tried to bribe individual members of the CDU .

But even these rules of conduct adopted by the Bundestag in 1972 did not provide for any criminal liability for bribing members of parliament. Only the Kohl government introduced the criminal offense of bribery of parliamentarians in 1994 with the twenty-eighth Criminal Law Amendment Act ( Federal Law Gazette 1994 I p. 84 ).

On April 2, 2007, the Neuruppin District Court applied the criminal offense that had existed since 1994 for the first time. According to a spokeswoman for the Neuruppin Regional Court to dpa on October 18, 2007, the first conviction after the criminal offense of bribery of parliamentarians in Germany is now legally binding - the BGH has rejected a petition for an appeal. An investment company had offered R. Sommerfeld a personal loan of 100,000 euros when he was still a member of the Neuruppin City Council. For this, the city should agree to a default guarantee of 13.7 million euros. According to the court, this guarantee was an essential element of the financing of the investment company. The court saw the purchase of votes as proven and withdrew Sommerfeld's right to stand for three years .

Germany signed the UN Convention against Corruption in 2003. In 2008 the Scientific Service of the Bundestag for civil, criminal and procedural law came to the conclusion that an expansion and tightening of the previous provisions of the Criminal Code was necessary.

In 2012, 26 of the 30 DAX companies called for ratification of the convention. The governing coalition rejects this, as the ratification of the anti-corruption agreement would jeopardize the free exercise of mandate. In January 2013, the legal scholar Elisa Hoven called in the journal for international criminal law dogmatics , "to replace the previously symbolic corruption criminal law with a legally convincing and practically usable regulation".

After Siegfried Kauder ( CDU / CSU ), Burkhard Lischka ( SPD ), Raju Sharma ( Die Linke ) and Jerzy Montag ( Bündnis 90 / Die Grünen ) presented an intergroup proposal on March 1, 2013 , and a few more from the ranks of the government group MPs such as Ernst Hinsken (CSU), Siegfried Kauder (CDU), Norbert Lammert (CDU), Ruprecht Polenz (CDU) and Uwe Schummer (CDU) had spoken out in favor of a change in the law, a proposal brought in by the SPD and the Greens was approved by the Bundestag in Roll-call vote rejected by a majority of the CDU and FDP on June 27, 2013. The SPD and the Greens wanted a prison sentence of up to five years for corruption of parliamentarians.

The CSU chairman, Horst Seehofer, campaigned for ratification in August 2013 and described the situation as "not promoting the image" that Germany has not yet ratified the convention and is therefore in company with countries such as Syria, Sudan and North Korea. The parliamentary managing director of the Bundestag faction Michael Grosse-Brömer (CDU) declared on August 10, 2013 that there were “still considerable constitutional concerns”.

With the amendment to the criminal law of April 23, 2014, Section 108e of the Criminal Code was redrafted under the heading Bribery and bribery of elected representatives . With effect from September 1, 2014, bribery and bribery of MPs can be punished with up to five years in prison.

International conventions

A number of international conventions are intended to counter the bribery of public officials and members of parliament.

OECD Convention against Bribery of Foreign Public Officials

The convention, ratified on February 15, 1999, requires the participating nations (including Germany) to take criminal measures against bribery of foreign officials (including members of parliament). The tax deductibility of bribes is prohibited.

In Germany it was implemented with the IntBestG of September 10, 1998. Switzerland ratified the OECD convention on May 31, 2000, Austria on October 1, 1998.

Council of Europe Criminal Law Convention on Corruption

The Criminal Law Convention on Corruption of the Council of Europe came into force on July 1, 2002 and contains extensive demands on the fight against corruption. The convention has been ratified by Switzerland, but so far not by Germany and Austria.

UN Convention against Corruption

The UN Convention against Corruption (UNCAC) came into force on September 16, 2005. According to the convention, in future the reprehensible influence of a member of parliament must also be recorded in the rest of the exercise of his mandate. Germany signed this agreement and only ratified it on November 14, 2014, as the 173rd country. Switzerland signed the Convention on December 10, 2003 and ratified it on September 24, 2009. Austria ratified the convention on January 11, 2006.

Web links

Wiktionary: Bribery of parliamentarians  - explanations of meanings, word origins, synonyms, translations

Footnotes

  1. ↑ Transparency International: Bribery of elected officials ( Memento of July 13, 2015 in the Internet Archive )
  2. ↑ n-tv, Bribery of Members of Parliament - Deals in the Dark Zone , February 20, 2014
  3. ↑ Members watch , Why the draft law against corruption of parliamentarians is unsuitable , February 11, 2014
  4. ↑ BT-Drs. 16/8979 ( PDF ) from April 25, 2008.
  5. ^ Free voter community Osterode am Harz Bribery of representatives according to § 108 e StGB . Dr. Wolfgang Wegener (FWG) on the first conviction in Germany for bribery of members of parliament in Neuruppin (with updated status) , April 5, 2007, accessed on September 25, 2008.
  6. ↑ Ariane Schenk: Legal issues in the context of parliamentary corruption (PDF; 338 kB), German Bundestag / Scientific Services, draft WD 7 - 3000 - 148/08, September 9, 2008 ( netzpolitik.org ).
  7. ↑ Controversy over anti-corruption agreements: Suddenly Moral Apostle , Spiegel Online , August 9, 2012.
  8. ↑ Bribery of parliamentarians: Why black and yellow are slowing down the corruption agreement ( memento of August 10, 2012 in the Internet Archive ), Financial Times Deutschland of August 8, 2012.
  9. ↑ Elisa Hoven: The criminal liability of bribery of representatives. Paths and goals of a reform of § 108e StGB (PDF; 176 kB), Journal for International Criminal Law Dogmatics 01/2013, 33
  10. ↑ Transparency Germany welcomes the intergroup bill to intensify the criminal offense of bribery of parliamentarians ( memento of October 22, 2013 in the Internet Archive ), press release Transparency International Germany, March 5, 2013.
  11. ↑ After ten years of debate: Last chance in this legislative period to effectively regulate the corruption of parliamentarians ( Memento of June 8, 2013 in the Internet Archive ), press release Transparency International Germany, March 27, 2013.
  12. ↑ Bundestag: black and yellow prevents stricter rules against bribery of parliamentarians , Spiegel online, June 27, 2013.
  13. ↑ Federal Law Gazette 2014 I p. 410
  14. ↑ Bundestag decision Parliament takes action against bribery of members of parliament. n-tv , February 21, 2014, accessed on February 21, 2014 .
  15. ↑ Christian Grimm: Bundestag passes law against bribery of members of parliament. finanzen.net, February 21, 2014, accessed on February 21, 2014 .
  16. ^ Draft of a ... Criminal Law Amendment Act - Extension of the criminal offense of bribery of parliamentarians. (PDF 193 kB) bundestag.de, February 11, 2014, accessed on February 21, 2014 .