Election obligations and their possible criminal consequences
European, federal and regional (Flemish) elections will take place on Sunday, June 9, 2024. In these elections, compulsory voting still applies. This is in contrast to municipal and provincial elections, for which compulsory attendance and voting were abolished for the upcoming elections.
The obligation to vote in federal elections is inscribed in article 62 of the Belgian Constitution. This article was not included in the recent declaration to revise the Constitution, which concretely means that the newly elected government cannot change or abolish this voting obligation in the next legislature.
The voting requirement for Flemish elections is imposed in Article 26bis of the Special Law on Institutional Reform (BWHI) of August 8, 1980. The voting requirements for the European elections are contained in Article 39 of the Act of March 23, 1989 concerning the election of the European Parliament. Since these voting requirements are not included in the Constitution, they would be subject to adjustment in the coming legislature.
Although the legislation speaks of compulsory voting, in practice, compulsory attendance applies. It is sufficient to report to the polling station and submit a ballot paper. Whether or not you cast a (valid) vote in doing so is irrelevant.
In order to (have to) participate in the federal and regional elections, the citizen must have Belgian nationality, be 18 years of age and be registered on the population register of a Belgian municipality. In addition, the citizen must not be disqualified from voting or declared incapable of exercising his or her political rights. This may be the case of persons under guardianship or internees. Prisoners can also still vote, although in practice it appears that this right to vote from prison is extremely difficult to exercise.[1]
For European elections, the voting age is already 16. The legislature had chosen to make minors aged 16 and 17 eligible to vote, but make adults eligible to vote in European elections. However, the Constitutional Court ruled that this violated the principle of equality (judgments GwH 20 July 2023, AR 116/2023 and 21 March 2024, AR 35/2024). The partial annulment of this section of the law means that all 16- and 17-year-olds are obliged to vote in European elections. By suspending the transitional provision, they may even face a penalty if they fail to do so. However, the Minister of Justice communicated shortly after the latest decision of the Constitutional Court on March 21, 2024, that no fines or other sanctions would be imposed on minors who do not go to vote in European elections anyway.[2]
Incidentally, this measure is not really different for adult voters. Before that, the Board of Procurators General stated in the circular COL 8/2024 of May 16, 2024 that failure to present oneself to a polling station without a valid reason constitutes the lowest priority. In practice, therefore, it will not be prosecuted for it, nor will a friendly settlement be issued. However, the Elections Act provides for a fine of 40 to 80 euros for any voter who fails to show up. These fines can be increased to EUR 80 to 200 in the event of a repeat offence. If a voter fails to show up at least 4 times within a 15-year period, he or she is removed from the electoral rolls for 10 years and cannot receive an appointment, promotion or award in a public administration during that period.
A stricter rule applies to the appointed chairmen and assistant chairmen of the polling stations. If they do not show up without a valid reason, the Board of Procurators General prescribes that an amicable settlement of 250 euros will be proposed immediately. If this is not paid within the proposed period, a summons will be issued immediately. The statute of limitations is 1 year, which is why prosecution cannot be delayed. For criminal prosecution, the minimum fine is 400 euros, the maximum fine is 1,600 euros.[3]The Elections Act stipulates about fines that they must always be imposed effectively, without delaying enforcement.
Finally, the legislature has emphasized the absolute secrecy of the vote. Section 114 of the Elections Act provides that no one can be obliged in any way to disclose for whom he or she voted, even under the order of an investigating judge or a parliamentary commission of inquiry. This protection thus goes even further than professional secrecy. The disclosure of a person's voting choice by someone from the polling station is even punishable by fines ranging from 4,000 to 24,000 euros. What happens inside the voting booth should also stay inside the voting booth.
[1] On this subject, see the opinion (criticism) of the Central Supervisory Council for the Prison System dated April 29, 2024
[2] https://www.vrt.be/vrtnws/nl/2024/03/27/16-en-17-jarigen-die-niet-gaan-stemmen-voor-de-europese-verkiez/
[3] These amounts are already after opdeciemen, so the actual amounts to be paid
