Crimes in office
Term and definition
The term Crimes in office refers in German criminal law to criminal acts committed by public officials during the execution of their official duties, where the minimum threatened penalty amounts to at least one year of imprisonment. The offences considered as crimes in office are specifically regulated in the Criminal Code (StGB) and serve to protect the public interest in a lawful, integral, and functional administration. The legal system imposes harsher penalties for misconduct by public officials to ensure the public’s trust in the lawfulness of official acts.
Distinction: Crime vs. Misdemeanor in office
The Criminal Code distinguishes between crime und misdemeanor in office. A crime is an offense for which the law provides a minimum term of imprisonment of one year (§ 12 para. 1 StGB). In contrast, misdemeanors are defined by a lower threatened penalty. Crimes in office include, for example, particularly serious cases of bribery (§ 332 StGB) or perversion of justice (§ 339 StGB).
Public officials under criminal law
Status as a public official
In the context of official offences, it is crucial whether the perpetrator holds the status of a public official within the meaning of criminal law. The legal definition is found in § 11 para. 1 no. 2 StGB. This includes, among others:
- Civil servants and judges
- Persons in public service with an official status relationship
- Elected representatives, insofar as they perform administrative duties
Other individuals who perform public duties can also be considered public officials if they are entrusted with the exercise of sovereign functions.
Extended concept of public official
Certain norms in the Criminal Code broaden the concept of a public official, especially for foreign matters (§ 335a StGB) and EU institutions.
Overview of the most important crimes in office
Perversion of justice (§ 339 StGB)
Perversion of justice covers the intentional actions of a judge, other public official, or arbitrator that are knowingly and seriously contrary to the law. The prerequisite is that the official twists the law when directing or deciding a legal matter to give someone an advantage or disadvantage. The minimum penalty is one year of imprisonment; for this reason, all instances of perversion of justice are classified as crimes.
Bribery and corruption (§ 332, § 334 StGB)
Bribery describes a public official’s demand for, acceptance of a promise or acceptance of an advantage in return for improper performance of duties. Particularly serious cases are subject to increased penalties under § 335 StGB, which likewise exceed the threshold to be classified as a crime. Corruption, on the other hand, penalizes the offering or granting of an advantage to a public official.
Other offences with criminal character
- Serious cases of accepting and granting benefits (§§ 331, 333 StGB in conjunction with § 335 StGB): If the case is particularly serious, the offence can be classified as a crime.
- Prisoner liberation by a public official (§ 120 para. 4 StGB): If a public official commits prisoner liberation under the conditions specified by law, this is treated as a crime.
Elements of the offence and penalty
General requirements
For an act to be punishable as a crime in office, the following conditions must be met:
- Status as a public official: The perpetrator must be a public official.
- Actus reus: The statutory illegal act must be committed during the performance of official duties or in direct connection with them.
- Intent: For most crimes in office, intent is required; negligence is insufficient.
- Wrongfulness and culpability: The conduct must not be justified or excused.
Sanctions
The penalty for crimes in office generally starts at a minimum of one year imprisonment and can reach up to ten or, in particularly serious cases, even fifteen years. A fine is excluded (§ 12 para. 1 StGB). Additionally, the court may order the loss of official capacity, exclusion from public office, and further ancillary penalties or measures.
Procedural particularities
Duty to investigate and report
Authorities and superiors are legally required to initiate investigations if there is suspicion of an official crime and, if necessary, to file a criminal complaint (§ 163 StPO). Concealment or failure to investigate can itself be punishable.
Special rules for investigations against public officials
Special regulations apply to investigations against public officials, for example
- Consent of the superior authority in case of arrest or search (§ 97 ff. Federal Civil Service Act)
- Disciplinary proceedings: In addition to the criminal proceedings, there is usually a disciplinary procedure with its own consequences, up to dismissal from service.
Exclusion of prosecution in case of parliamentary immunity
For mandate holders with immunity, such as members of the Bundestag, the parliament must lift immunity before criminal proceedings can be conducted (§ 46 GG).
Impacts and consequences
Disciplinary consequences
A conviction for a crime in office regularly leads to serious consequences under service law, in particular
- Removal from civil service
- Loss of pension entitlements
- Exclusion from public office
Loss of trust and reputational damage
In addition to individual criminal penalties, long-term effects on professional and social reputation are to be expected. Trust in the responsible handling of public duties is permanently damaged.
Relationship to international regulations
In the international context, corruption offences, perversion of justice, and similar crimes in office are the subject of numerous conventions, such as the UN Convention against Corruption (UNCAC). International standards are implemented in Germany through amendments to the Criminal Code and accompanying legislation.
Limitation period
Crimes in office are subject to the general statutes of limitation (§ 78 StGB). Due to the high penalties, the limitation periods are regularly ten years or more, depending on the individual case and type of commission.
Conclusion
Crimes in office represent a particularly grave breach of trust towards society and the rule of law. They are sanctioned by strict statutory provisions that serve both the prevention and the punishment of serious breaches of duty by public officials. Thorough prosecution and the complex sanctions regime are intended to ensure the protection of lawful administrative leadership and societal peace.
Source note:
- Criminal Code (StGB)
- Code of Criminal Procedure (StPO)
- GG, Civil Servant Status Act, Federal Civil Service Act
- Statutory texts and commentary literature on German criminal law regarding public officials
Frequently asked questions
When does a crime in office occur?
A crime in office occurs when a public official – i.e., a person entrusted with public duties, such as a civil servant, judge, or soldier – commits an offense in the course of their official duties which constitutes a crime, i.e. is threatened with a minimum sentence of one year in prison according to § 12 para. 1 StGB. It is a requirement that the offence is connected to the official position or function and was committed in breach of official duties. Typical examples include bribery (§ 332 StGB), acceptance of benefits (§ 331 StGB), and perversion of justice (§ 339 StGB). The crime in office differs from ordinary offenses in that the perpetrator abuses their special official duty and the public trust placed in them. Furthermore, special legal provisions for public officials may apply which increase criminal liability compared to ‘ordinary’ offenders or facilitate prosecution.
Who is legally considered a public official according to criminal law provisions?
Legally, public officials within the meaning of § 11 para. 1 no. 2 StGB include all persons who, under German law, are either civil servants, judges, persons in public service, or those otherwise entrusted with public duties. This also includes public service employees, volunteers (e.g. lay judges), as well as soldiers of the armed forces. For certain criminal offenses, it also includes those who perform public administration tasks, regardless of whether they have been formally appointed. What is always essential is the connection to public duties based on a statutory or official order.
Which special criminal laws apply to public officials?
In addition to general criminal laws, specific criminal provisions apply to public officials that are designed to protect the public interest in lawful administration and adjudication. The most important provisions are, in particular, the official offences under §§ 331-358 StGB: These include accepting and granting benefits (§§ 331, 333 StGB), bribery and corruption (§§ 332, 334 StGB), perversion of justice (§ 339 StGB), obstruction of justice in office (§ 258a StGB), breach of custody (§ 133 StGB), and mistreatment of persons under protection in office (§ 225 StGB). In cases such as bodily harm or deprivation of liberty, aggravating circumstances often apply if committed by public officials in performance of their duties (§ 340 StGB – bodily harm in office). Disciplinary law can also play a role alongside criminal proceedings.
How does criminal procedure work if a crime in office is suspected?
If a crime in office is suspected, the regular criminal procedure applies, although there are certain particularities. The public prosecutor must initiate an investigation if there are sufficient factual indications (principle of legality), especially as there is a particular public interest. If a preliminary suspicion exists against judges or prosecutors, the investigation must be conducted by independent authorities pursuant to §§ 152, 160 ff. StPO; usually, special departments in the public prosecutor’s office or even the attorney general’s office are responsible. For civil servants and soldiers, disciplinary proceedings are initiated alongside criminal proceedings, with a criminal conviction typically resulting in disciplinary consequences, up to removal from service. Public officials do not enjoy special protection against prosecution; immunities as with members of parliament do not apply.
What legal consequences must public officials expect if convicted?
If a public official is convicted of a crime in office, significant consequences must be expected. In addition to criminal sanctions prescribed by law – typically imprisonment, and for crimes at least one year – professional consequences may arise. For civil servants, this may mean dismissal or loss of pension entitlements (§ 41 BBG, § 24 BeamtStG). Entries in the certificate of conduct and the Federal Central Register will follow. The affected public official will often be on ‘blacklists’ of the public administration for life, making reemployment in public office virtually impossible. In cases of serious corruption offenses, asset confiscation or professional bans (§ 70 StGB) may also be ordered.
Does a crime in office become time-barred and, if so, under which rules?
A crime in office is also subject to statutory periods of limitation, pursuant to § 78 StGB. For crimes, the usual limitation period is at least five years, and for particularly serious offenses (such as aggravated bribery), it can be from ten to thirty years, depending on the offense and maximum penalty. The period usually begins when the offence is completed. For certain public official offenses – such as perversion of justice (§ 339 StGB) – there may be special rules, especially if the offense was covered up or undiscovered for a long time. In exceptional cases, the limitation period can also be interrupted, for example, by instituting an investigation (§ 78c StGB).
