When dealing with illicit conduct that can be committed during an electoral
process, two large categories should be distinguished:
- specific electoral offences, which are an assault on essential elements within an electoral process
- those which, although aimed at hampering or interfering with the electoral process, violate the laws of the land
Anyone who purposely tampers with the voters register, changes a ballot slip placed into the ballot box by the voter or tampers with the voting record book in a voting station to favour a candidate commits an electoral offence, as it is an assault on specific elements of the process.
Someone who murders the president or supervisor of a voting station or places a bomb at the headquarters of a political party competing in the elections, certainly has an affect on the electoral process, but the impact of their conduct reaches beyond that limited context to become a larger crime against society covered by the laws governing society as a whole. Since crimes of this nature do not fall within the purview of electoral law or regulation, they will not be discussed here.
Thus, any unlawful conduct implying an assault on a legal asset directly related to an electoral process is considered a specific electoral offence, e.g., on the constitution of the voting stations, the count, the truth in announcing the votes obtained by the candidates, etc. They are not considered
special offences in the sense that they have to be judged by special courts or that they protect certain persons with specific authority, although the organisations that apply the sanctions are referred to further on, but conduct that violates specific precepts of election regulations. Such conduct should be regulated in accordance with the principles peculiar to criminal law, such as:
- ideas, desires or intentions cannot be punished, but illegal conduct (active conduct or willful failure to do something) can;
- principles of legality must be observed, that is, the offences should specifically be classified as such prior to seeking punishment of the offender
- the legal asset protected is the free execution of the electoral process
under the conditions regulated by the law and the constitution (ideal or philosophical conditions are therefore not protected, but legal assets that should be declared as such beforehand and protected by the law are);
- must be determined whether or not someone is guilty of willful illegal conduct--a president of a voting station involved in an accident on his way there cannot be considered an offender because he arrived late or it causes problems in the composition of a polling station;
- sanctions should be proportionate--the conduct of an official that does not display the voters list on the relevant notice board on the first day of the term set is not as serious as someone who tampers with the records, attributing votes to candidates who had not received them;
- general penalties under the criminal law in accordance with the internal legal code of the country in which the offences are committed are applicable.
- common, and reasonable, for criminal conduct of this type to also entail the deprivation of the right to active and passive suffrage and even the disqualification as a public official, should the offender be one;
- electoral rights of anyone who has been unduly deprived, have to be reinstated, which sometimes presents unsolvable problems, e.g., a person who was not able to vote due to an error on the altered records, or a candidate that by mistake did not obtain any portion of the public funding that he was entitled to.
The reason why these specific offences exist in electoral law or regulations is obvious--to protect the freedom of expression of the vote and the free and peaceful execution of the entire electoral process. The threat of a penalty must produce an effect of general and specific prevention, making prospective offenders think twice before attempting to interfere with the forming of the will of the people.
But the peculiar features of one of these processes warrants special attention--the restoration of the legal asset assaulted and the swiftness with which it is done. If someone steals a book from the public library, it must be replaced, but there may be no particular urgency. If a public official unduly modifies the list of possible voters, it is imperative that anyone falsely excluded be put back on the voters list in time to vote.
