Concept and legal classification of the disciplinary investigation
Die disciplinary investigation is a formal measure anchored in disciplinary law for the clarification of facts in cases of suspected misconduct by civil servants or other persons subject to disciplinary law. It serves to comprehensively investigate relevant facts and forms the basis for any further measures—particularly the initiation of disciplinary proceedings. The disciplinary investigation is regulated by law, for example in the Federal Disciplinary Act (BDG) and in the disciplinary laws of the federal states.
Objective and purpose of the disciplinary investigation
The primary function of the disciplinary investigation is to clarify any breach of duty, to determine the actual circumstances comprehensively, and to assess the responsibility of the person concerned. It thus serves to protect order and integrity within the public service.
Functions in disciplinary proceedings
- Preparation of the factual decision: The investigation secures the basis for an appropriate and legally sound decision in the disciplinary proceedings.
- Principle of the rule of law: Ensuring a fair procedure and safeguarding the rights of the person concerned.
- Official order: Support in enforcing official duties and preventing legal violations in public service.
Legal basis
The disciplinary investigation is primarily regulated at the statutory level. The Federal Disciplinary Act (BDG) is the central legal framework for federal civil servants. In addition, the federal states have their own disciplinary laws for state civil servants.
Key provisions
Federal Disciplinary Act (BDG)
- Section 19 BDG: Obligation to initiate a disciplinary investigation if there are sufficient factual indications of a breach of duty.
- Sections 20–24 BDG: Procedure and course of the investigation, rights and obligations of the investigators and parties involved.
State law provisions
The federal states have their own disciplinary laws, which in some cases differ but are comparably structured in terms of trigger, procedure, and design of the disciplinary investigation.
Course of the disciplinary investigation
Initiation of the investigation
The investigation is generally initiated when there is concrete suspicion of a breach of duty. The responsible authority is the disciplinary authority or the superior administrative unit.
- Occasion: Indications, reports, facts, or complaints that suggest possible misconduct.
- Opening order: Formal notification to the person concerned, often combined with initial information about the facts and the further procedure.
Conduct of the investigation
The procedure is divided into several legally defined phases:
- Taking of evidence: Collection and securing of evidence (witness interviews, submission of documents, inspections).
- Hearing of the person concerned: The accused person must be heard; they have the right to comment on the facts and to submit requests for evidence.
- Access to files: The person concerned is permitted to inspect the investigation file in accordance with statutory requirements.
- Final report: After completion of the investigation, a report is prepared summarizing all investigation results.
Rights and obligations of those involved
The disciplinary investigation is characterized by specific procedural principles and participatory rights:
- Right to be heard: The person concerned must be given the opportunity to comment before any decision is made.
- Protection of data privacy: Personal rights and data privacy must be observed, especially during data collection and use.
- Duties of cooperation: Public service employees may be obliged to provide certain information or make documents available, insofar as this is permitted under public service law.
Distinction from other procedures
Disciplinary investigations must be distinguished from other administrative or judicial investigations:
- Criminal investigations: The disciplinary investigation may take place in parallel to criminal proceedings. It is independent and follows its own rules.
- Personnel procedures: Whereas personnel procedures concern consequences under employment law, the disciplinary investigation aims at sanctions for breaches of official duties.
Possible outcomes and consequences
The investigation can lead to different outcomes:
- Termination of the proceedings: If there is no evidence of a breach of duty or only a minor offense that does not require further action.
- Disciplinary order: If a breach of duty is established, disciplinary measures such as a warning, fine, reduction of salary, demotion, or removal from service may be imposed.
- Forwarding to other authorities: If there is suspicion of a criminal offense, the file may be forwarded to the public prosecutor’s office.
Legal remedies
The affected person has access to legal remedies against the results of the disciplinary investigation and subsequent decisions, such as objection proceedings or administrative court actions in accordance with the applicable procedural rules.
Significance in administrative practice
The disciplinary investigation is a central instrument for regulating and securing legal status in the public service. It ensures that the functionality, integrity, and reputation of the public service are maintained and that misconduct can be effectively sanctioned.
Summary: The disciplinary investigation is a statutory procedure within disciplinary law for the clarification of breaches of duty in the public service. It ensures a rule-of-law approach, protects the rights of those involved, distinguishes itself from other procedures, and forms an essential basis for decisions in disciplinary law. Precise conduct and documentation are of utmost importance for the legal certainty and functioning of the public service.
Frequently asked questions
What procedural rights does the person concerned have during a disciplinary investigation?
During a disciplinary investigation, the accused person has numerous procedural rights arising in particular from the Constitution, administrative procedure law, and the relevant disciplinary laws of the federal government or the states. The main rights are the right to be heard, which ensures that the individual is heard on the matter before any disciplinary measure is imposed and can put forward all arguments in their favor. In addition, there is the right of access to files, which allows the person concerned to inspect the investigation file against them and thus prepare an effective defense. Furthermore, the right to consult a legal adviser or authorized agent exists to properly safeguard one’s own interests and to be professionally supported during the proceedings. The presumption of innocence must also be observed until the conclusion of the disciplinary proceedings. Any witnesses for the prosecution must be disclosed, and the accused may question them or name exonerating evidence. Finally, the procedure must be completed within a reasonable time so that the person’s rights are not impaired by excessive duration.
How is evidence taken in a disciplinary investigation?
The taking of evidence as part of a disciplinary investigation is mainly governed by the principles of official investigation and the determination of substantive truth. The disciplinary authority is obliged to independently determine all relevant facts and gather the evidence necessary to clarify the matter. Typical evidence includes witness statements, documents, expert opinions, inspection, and the accused person’s own statement. The accused can submit requests for evidence, to which the authority must respond appropriately. It is essential that the taking of evidence is independent and objective, with equal diligence given to both incriminating and exonerating circumstances. The results are to be documented in a case file and form the basis for the final disciplinary assessment.
When and how is the person concerned informed of the result?
After the investigation is completed, the result of the disciplinary investigation is usually communicated to the person concerned by means of a written decision or a formal notice. The relevant facts on which the authority relies, as well as the legal assessment, must be presented in a detailed and comprehensible manner. If a disciplinary measure is imposed, the justification must specifically address the evidence, witness statements, and the course of the procedure. Additionally, the communication must inform about any legal remedies and their deadlines, so that the person concerned can take legal action against the decision. Notification is usually in writing and is deemed delivered upon receipt.
Can the person concerned take legal action against the initiation of a disciplinary investigation?
As a rule, only limited legal remedies exist against the mere initiation of a disciplinary investigation, as this is primarily a procedural step and not an adverse administrative act. Only when specific disciplinary measures are ordered or rights are violated (e.g., premature suspension, denial of access to files, procedural delays) can the person concerned seek judicial protection, for example by applying for a temporary injunction or lodging a complaint. In the further course of the proceedings, especially against disciplinary measures or decisions, the person concerned has open access to the administrative courts and specific disciplinary legal actions. It is advisable to seek specialized legal advice at an early stage.
What consequences can the disciplinary investigation have for those affected?
The disciplinary investigation can have a wide range of consequences, depending on the seriousness of the alleged breach of duty, the state of evidence, and any prior offenses. Possible outcomes include: termination of the proceedings due to lack of proof or minor nature of the allegation, reprimand, warning, fine, reduction or withholding of salary, demotion in grade or salary group, removal from service, or revocation of civil service rights. The disciplinary consequences apply exclusively to the public-law employment relationship and have no direct criminal law effects, but they may lead to criminal investigations if punishable conduct is established. Long-term effects on career progression, promotion, or pension are also possible.
Is parallel criminal prosecution permitted alongside the disciplinary procedure?
Yes, it is possible and legally permissible for a criminal investigation to be conducted at the same time as a disciplinary investigation concerning the same or a related matter. Both proceedings are independent of each other; however, the disciplinary authorities are required to exchange information about the status and relevant findings with the criminal prosecutors. In practice, the disciplinary authority may suspend its proceedings for reasons of expediency until the criminal proceedings have been completed in order to use those results. The disciplinary assessment may, but does not necessarily have to, follow the criminal law assessment.
Does the person concerned have to make statements during the disciplinary investigation?
The person concerned is not obliged to make statements about the matter during a disciplinary investigation. They have a comprehensive right to silence, which is protected by the principle against self-incrimination (nemo tenetur principle). Any voluntary statements should be made deliberately and, especially in serious cases, after consulting with legal counsel. Silence must not be interpreted to the detriment of the accused. At the same time, it is possible to contribute to the clarification of the facts by making a statement, which in individual cases may lead to a more lenient assessment.
