Exclusion of voting rights

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Under felony disenfranchisement of certain people from the active and passive means the exclusion option , although this (the age, per se nationality seen or residence forth) would be eligible to vote.

Exclusions from voting rights in Germany

In the German electoral law, there were three reasons for exclusion from (active) voting rights. The federal election laws and almost all state parliament and local election laws contained the first two reasons for exclusion:

  • who does not have the right to vote as a result of a judge's judgment
  • the person for whom a supervisor has been appointed to take care of all his affairs, not just by interim order ; this also applies if the supervisor's area of ​​responsibility does not include the matters specified in Section 1896 (4) and Section 1905 of the German Civil Code (postal control and sterilization ). This reason for exclusion no longer applies to European elections since spring 2019 and has also no longer applied to federal elections since mid-2019. Most federal states have now also lifted this exclusion from voting rights (end of 2019).

In the election laws of the federal government and most of the states, the following reason for exclusion was also given:

The eligibility, i.e. the passive right to vote, largely follows the provisions for the (active) right to vote for this group of people.

According to the jurisprudence of the BVerfG, the exclusion of the persons cared for in all matters and the persons incapacitated in the psychiatric hospital violated the principle of equality. However, when the law approving the UN Convention on the Rights of Persons with Disabilities was passed at the end of 2008, the legislature assumed that it would not conflict with the exclusions from voting rights.

A resolution of the Council of Europe of February 22, 2017 speaks out against the exclusion of the right to vote due to disabilities ("72 Delinking the right to vote and legal capacity or full guardianship is a central element of the political participation of persons with disabilities.").

Exclusion by judgment

The exclusion by judgment can lifetime only by the Federal Constitutional Court within the forfeiture of basic rights according to Art. 18 2 S. constitution i. V. m. 39 para. 2 BVerfGG . This has never happened before in German history.

According to Section 45 (1) of the Criminal Code, anyone who is sentenced to imprisonment of at least one year for a crime loses the ability to obtain rights from public elections for a period of five years, i.e. the eligibility, but not the (active ) Right to vote.

In the case of certain other “political” criminal offenses (e.g. high treason or treason , election fraud , electoral coercion, voter bribery), the (active) right to vote can also be withdrawn for two to five years (cf. Section 45 Paragraphs 2 and 5, Section 92a , § 101 , § 108c , § 109i StGB). This only happens rarely, an average of 1.4 cases per year. A further withdrawal of civil rights has not been planned since the Great Penal Reform in 1969.

In practice, most prisons also only allow postal voting (which must be requested in advance); According to a defense attorney, this leads to a loss of the right to a secret ballot because the fact that the vote was cast is known as such.

Reason for exclusion Support in all matters

The reason for exclusion carers order only affected people, where a (final, but no preliminary) support the task group "all matters" was arranged. The post and telephone control according to § 1896 Abs. 4 BGB as well as the task area sterilization according to § 1905 BGB need not be arranged .

Before the Care Act came into force on January 1, 1992, persons who were under guardianship or frailty care had no right to vote . The legislature did not follow proposals to lift the exclusion of the right to vote, but limited it to people who had a supervisor appointed to deal with all matters not just by interim order. The explanatory memorandum stated among other things: “The 2nd partial draft of the discussion therefore proposed deleting Section 13 No. 2 without replacement. However, this would not do justice to the importance of the provision for the function of the right to vote in the democratic system of government (cf.BVerfGE 67, 146, 148; 36, 139, 141). For constitutional reasons, it is advisable to find another connection in place of the previous connection, which is no longer relevant due to the elimination of incapacitation and the custody of frailty. "

The transitional provisions (Art. 9 § 7 BtG) for the so-called old cases , i.e. for people who were under guardianship / guardianship on December 31, 1991 and thus automatically transferred to custody on January 1, 1992, provided that automatically only the ban on voting for those previously under custody of frailty will be removed from the electoral register (around 180,000 people), not that of the around 65,000 people previously placed under guardianship .

In the case of the latter, for whom support “for all matters” has been set up due to the transitional provisions, the scope of support should only be restricted under certain circumstances within the framework of the review period for the old cases, thus removing the electoral ban from the electoral register. The review period was

  • five years (i.e. until December 31, 1996) for people who have been under guardianship for more than ten years (i.e. guardianship was ordered before January 1, 1982) and
  • ten years (i.e. until December 31, 2001) for people who were under guardianship for less than ten years (i.e. guardianship was ordered after January 1, 1982).

Jurisprudence on the supervision order

Requirements for the arrangement of total care:

  1. No expansion of the supervisor's scope of duties to take care of all affairs of the person concerned if he is able to cope with a part of his life.
  2. If the person concerned experiences the necessary "guidance" from the home staff, which is not associated with deprivation of liberty, this is "other help" i. S. v. Section 1896, Paragraph 2, Sentence 2 of the German Civil Code (BGB), which makes supervision unnecessary.
  3. In the case of persons in need of care who cannot exercise their right to vote due to their illness or disability, it is not permitted to counter the risk of election manipulation by ordering total care without such a measure being required according to the general principles.
Further case law
  • BayObLG of April 27, 1995 - 3 Z BR 25/95 = FamRZ 1995, 1085
  • BayObLG of October 22, 1996 - 3 Z BR 178/96 = BtPrax 1997, 72
  • LG Zweibrücken of July 20, 1999 - 4 T 167/99 = BtPrax 1999, 244
  • VerwG Neustadt of June 10, 1999 - 3 L 1535 / 99.NW - FamRZ 2000, 1049

Exclusion reason for criminal placement

The third reason for exclusion relates to criminal (forensic) housings , so people in the so-called forensic unit , due to their lack of criminal responsibility ( Insanity acc. To § 20 of the Criminal Code) can not be punished for crimes committed and in accordance with § 63 are the Criminal Code in a psychiatric hospital housed.

This does not affect people who are housed in a detox center in accordance with Section 64 of the Criminal Code. Also not affected are persons who are temporarily accommodated by way of an interim order ( Section 126a StPO ). Other custodial placements (so-called civil law according to § 1906 BGB or public law according to the mental health laws of the federal states) in no case lead to an exclusion from the (active) right to vote; In Schleswig-Holstein, however, eligibility is excluded for those who are not only temporarily housed due to the (state) law for the mentally ill.

Unconstitutionality of the blanket electoral exclusion

On February 21, 2019, the Federal Constitutional Court published a decision of January 29, 2019, by which the provisions on the exclusion of the right to vote for disabled people in the Federal Electoral Act were declared unconstitutional. People who are dependent on court-appointed care may not be excluded from elections across the board. According to the ruling, this also applies to offenders who are housed in a psychiatric hospital due to incapacity for guilt. The Second Senate of the Federal Constitutional Court complained about a violation of the principle of universal voting under Article 38 of the Basic Law and of the prohibition of discrimination due to disability according to Article 3 of the Basic Law. The Bundestag then decided to change the federal electoral law , and some federal states suspended corresponding regulations in their electoral laws. With regard to the 2019 European elections in May of that year, the members of the Bundestag from the Greens, Left and FDP filed an urgent action before the Federal Constitutional Court against the European Election Act , which had remained unchanged. On April 15, this approved the request and thus granted the 83,000 people concerned a right to participate in the election. On May 16, 2019, the Bundestag deleted the exclusions from the federal and European elections law for those under care and forensically detainees. Most federal states have currently (spring 2019) taken the same step or corresponding amendment laws are in the parliamentary process.

Legal basis for exclusions from (active) voting rights

international law

German law

Federal law

State law

  • Section 7 (2) Baden-Württemberg State Election Act **
  • Art. 2 State Electoral Law of Bavaria
  • Section 2 Berlin State Election Act
  • Section 7 Brandenburg State Election Act
  • § 2 Bremen Election Act **
  • § 7 Electoral Law for the Hamburg Citizenship
  • Section 3 State Election Act of Hesse **
  • § 5 State Election Act Mecklenburg-Western Pomerania **
  • § 3 Lower Saxony. State Election Act
  • § 3 State Election Law Rhineland-Palatinate **
  • Section 9 Saarland State Election Act
  • § 12 Saxon State Election Act
  • § 3 State Election Act Saxony-Anhalt **
  • § 14 Thuringian State Election Law

Local law

  • § 14 Municipal Code of Baden-Württemberg **
  • Art. 2 Bavarian municipal and district electoral law
  • Section 9 Brandenburg Local Election Act
  • § 31 Hessian municipal code **
  • Section 8 Mecklenburg-Western Pomerania Local Election Act **
  • Section 48 (2) of the Lower Saxony Municipal Constitutional Act
  • Section 2 Rhineland-Palatinate Local Election Act **
  • Section 14 Saarland Local Election Act
  • Section 16, Paragraph 2 of the Saxon Municipal Code **
  • Section 21 (2) of the Saxony-Anhalt municipality code **
  • § 2 Thuringian Local Election Act

(if marked with **, the reason for exclusion of the placement according to § 63 StGB is not mentioned).

literature

  • Ulrich Hellmann: Comment on the decision of the Regional Court of Zweibrücken on July 29, 1999 . BtPrax 1999, 229
  • Thomas Passmann: Right to vote and need for care . BtPrax 1998, 6
  • Dieter Schwab: Problems of the material care law . FamRZ 1992, 493
  • Walter Zimmermann : The right to vote for those in care . FamRZ 1996, 79

Web links

Individual evidence

  1. Memorandum on the Convention on Bundestag printed paper 16/10808, pp. 45, 63 f. (PDF; 1.2 MB)
  2. ^ Parliamentary Assembly of the Council of Europe: "The political rights of persons with disabilities: a democratic issue". Document 14268 :
  3. ^ Heribert Prantl: Electoral citizens behind bars. sueddeutsche.de , August 16, 2012
  4. Thomas Breining: Bundestag elections in prison - only those outdoors are allowed to go to the polling station In: Stuttgarter Zeitung , September 3, 2013, accessed on January 19, 2017.
  5. Bundestag printed paper 11/4528 , p. 188 f.
  6. BayObLG, decision of March 12, 1997 - 3 Z BR 47/97, FamRZ 1998, 452 = NJW-RR 1997, 967 = BayObLGR 1997, 45 (Ls) = BtE 1997, 95 (Ls) = NJW 1997, 2662 ( Ls) = NJWE-FER 1997, 228 (Ls)
  7. Supervised people must not be excluded from elections . Spiegel Online, February 21, 2019.
  8. People with care can take part in the European elections. Spiegel Online, April 15, 2019, accessed on the same day.
  9. Dietmar Hipp: Right to vote for people in care - what the decision of Karlsruhe means. Spiegel Online, April 15, 2019, accessed on the same day.