Definition and concept of disciplinary law
Das Disciplinary law is an independent subfield of public law that regulates the measures and procedures for sanctioning breaches of duty committed by members of certain professional groups—especially civil servants, soldiers, judges, or other holders of public service positions—with respect to their official duties. The goal of disciplinary law is not the sanctioning of criminally relevant acts in the classical sense, but rather the protection of the functionality and integrity of public service.
Legal basis and scope of application
Public law service relationship
Disciplinary law applies to persons who are in a public law service relationship. This essentially concerns the following groups:
- Civil servants (federal, state, and municipal civil servants)
- Judges
- if applicable, other public service personnel (e.g., notaries under certain conditions)
- ggf. weitere Personengruppen im öffentlichen Dienst (z. B. Notare unter bestimmten Voraussetzungen)
Legal foundations
The legal foundations of disciplinary law at the federal and state level arise in particular from the following laws:
- Federal Disciplinary Act (BDG) for federal civil servants
- State disciplinary acts for state and municipal civil servants (designed differently depending on the state)
- German Judiciary Act (DRiG) or state judiciary acts
- Military Disciplinary Code (WDO) for soldiers
- Special group-specific regulations (e.g., for notaries)
Distinction from related areas of law
Disciplinary law differs fundamentally from criminal law, employment law, and disciplinary criminal law. While criminal law serves to penalize acts against the public good, disciplinary law is primarily aimed at maintaining the reputation and functionality of the public service. Employment law consequences such as dismissals exist alongside and can be supplemented by disciplinary proceedings.
Content and duties in disciplinary law
Official duties
Disciplinary law concerns breaches of official duties. The official duties arise from the relevant laws and ordinances governing service and include, among others:
- Duty to perform official functions selflessly
- Duty of confidentiality
- Duty of political neutrality
- Obedience to instructions and compliance with the law
- Collegial cooperation
Breaches of duty
A breach of duty relevant under disciplinary law occurs if official duties are breached intentionally or negligently. Such breaches may include, for example:
- Acceptance of benefits
- Breach of confidentiality obligation
- Abuse of office
- Improper conduct in or outside duty, provided there is a recognizable official connection
Disciplinary proceedings: Process and principles
Initiation of disciplinary proceedings
Disciplinary proceedings are generally initiated by the superior when there are sufficient factual indications of a service-related offense. The initiation must be communicated to the person concerned; they have the right to comment.
Investigation proceedings
The process starts with the investigation phase, the aim of which is a comprehensive clarification of the facts. This includes in particular:
- Hearing of the person concerned
- Evidence gathering (witnesses, documents, experts)
During investigation proceedings, the presumption of innocence applies. The person concerned may be assisted by a person of their choice.
Disciplinary measures
After completion of investigations and legal assessment, various levels of disciplinary measures may be imposed. A distinction is made between measures according to the severity of the breach of duty. Disciplinary measures include in particular:
- Reprimand
- Fine
- Reduction of salary
- Demotion
- Removal from service (for civil servants)
- Reduction in rank (for soldiers)
- Dismissal from office (for judges)
The selection and assessment of the disciplinary measure depend on the severity of the offense, the circumstances of the individual case, and the consequences for official duties.
Legal protection and remedies
Affected individuals have the right to appeal disciplinary measures. Depending on the outcome and progress of the proceedings, different instances are provided for:
- Objection or appeal proceedings (for some state laws)
- Possibility of bringing a claim before the competent administrative or disciplinary courts
- In special cases: appellate/review instances
Judicial disciplinary proceedings are subject to special formal and substantive requirements aimed at ensuring effective legal protection and safeguarding the rule of law.
Relationship with criminal law and other proceedings
Disciplinary law must be distinguished from other proceedings such as criminal or labor law actions, but it can also interact with them:
- Criminal proceedings: If the facts also give rise to suspicion of a criminal offense or a regulatory offense, criminal investigation proceedings may be conducted in parallel. Disciplinary responsibility remains unaffected; however, results from criminal proceedings may be used in the disciplinary process.
- Employment law consequences: In addition to disciplinary proceedings, employment law consequences such as transfer or dismissal are permissible if the factual requirements are met.
Special rules and developments in disciplinary law
Military and judicial disciplinary law
There are special disciplinary law regulations for soldiers and judges, stipulated in the Military Disciplinary Code and the German Judiciary Act as well as supplementary state laws. The process and measures can differ from the general civil servant law in certain respects.
European and international aspects
Disciplinary law is also influenced by European and international law, for example with regard to the protection of fundamental rights, such as the right to a fair trial (Art. 6 ECHR), equal treatment, and data protection.
Development and reforms
As a result of societal and legal developments, disciplinary law undergoes regular adjustments. The aim is a modern structure, especially regarding transparency, legal procedural safeguards, and the adaptation of standards to public requirements.
Significance and function of disciplinary law
Disciplinary law serves to protect and uphold the integrity, functionality, and reputation of the public service. Beyond individual accountability, it ensures the public’s confidence in the appropriate and lawful fulfillment of public tasks. Thus, disciplinary prosecution of breaches of official duties contributes significantly to a rule-of-law-based, transparent, and efficient administration.
Summary:
Disciplinary law is a specialized field of public service law which, through comprehensive statutory provisions, a structured procedure, and graduated sanction mechanisms, ensures compliance with official duties, thereby making a substantial contribution to the functionality of public service. Because of its independence and specific purpose, it must be distinguished from other legal areas such as criminal or employment law, yet in certain situations it is closely linked to them. The ongoing development of disciplinary law focuses on the demands of society, administration, and law.
Frequently asked questions
Who is authorized to initiate disciplinary proceedings under disciplinary law?
The authority to initiate disciplinary proceedings generally lies with the competent service supervisor under disciplinary law. This follows from the relevant provisions, such as the Federal Disciplinary Act (BDG) for federal civil servants or the respective state disciplinary acts. As a rule, the immediate supervisor is obliged to promptly examine the initiation of disciplinary proceedings upon indications of a service-related offense. In addition, higher service authorities also have the right and duty to take action when they become aware of potential breaches of duty and, if necessary, initiate disciplinary proceedings. The suspicion must be based on sufficient factual indications; a general suspicion without concrete facts is insufficient. Initiation by private individuals or outsiders is not permitted; however, they may provide information that the authority must review in advance to determine whether to initiate proceedings.
What procedural principles apply in disciplinary law?
Disciplinary proceedings are subject to strict procedural principles, in particular the right to be heard, the duty to investigate, and the presumption of innocence. The affected civil servant or public service member must be given the opportunity at all times to respond to allegations and to present exculpatory evidence. The duty to investigate requires the authority to investigate all relevant circumstances ex officio, considering both incriminating and exonerating facts. The process is not bound to rigid formal rules but should proceed as swiftly as possible while being thorough (“acceleration requirement”). Disciplinary measures may only be imposed once the facts have been sufficiently clarified and a proper weighing of all circumstances has taken place.
What disciplinary measures can be imposed under disciplinary law?
Disciplinary authorities have a tiered system of sanctions at their disposal, ranging from a warning to a reprimand, fines, to demotion or removal from service (for civil servants). The possible disciplinary measures are conclusively set out by law (e.g., § 5 BDG), and their application is determined by the seriousness of the breach of duty and the circumstances of the individual case, in particular past conduct, motives, any prior offenses, and the consequences of the misconduct. Less severe measures must always be considered first. The measure must follow the principle of proportionality and must not be excessively harsh. For public employees, employment law consequences may apply instead of disciplinary sanctions.
How is the legal position of the affected person protected in disciplinary proceedings?
The affected person in disciplinary proceedings has extensive rights to safeguard their position and to mount an effective defense. They are entitled to a right to be heard, access to files, may file motions for evidence, and may be represented by a lawyer. The authority must inform the affected person of the allegations, their rights, the evidence, and the progress of the proceedings. Disciplinary proceedings are generally non-public to protect the personality rights of the affected person and to prevent an unfair “pillory effect.” Legal remedies such as objections or claims are available against decisions in disciplinary proceedings.
What is the significance of criminal proceedings in relation to disciplinary proceedings?
Disciplinary proceedings and criminal proceedings are organizationally and substantively independent of each other. If criminal investigation proceedings are conducted against an official or public employee, this can lead to the suspension of disciplinary proceedings until the criminal proceedings are concluded. The disciplinary authority is not bound by the outcome of the criminal proceedings, but must generally base its own assessment on the facts established in the criminal trial, provided these are not obviously incorrect. A criminal conviction can therefore result in disciplinary consequences, whereas acquittal in criminal law does not necessarily mean acquittal under disciplinary law. Disciplinary law independently examines whether and which official duties were breached.
What deadlines must be observed in disciplinary law?
Various deadlines exist in disciplinary law, which are crucial for the pursuit, conduct, and termination of proceedings. A key deadline is the so-called limitation period for prosecution, which—depending on the seriousness of the breach of duty—precludes disciplinary sanctions after certain periods (§ 15 BDG). This is usually between three and five years. There are also deadlines for filing legal remedies such as objections or claims (generally one month after notification of the decision). The duration of the disciplinary proceedings themselves is not precisely set by law, but the requirement of expediency applies: the authority must conduct and conclude the proceedings without undue delay. All deadlines serve to ensure both legal certainty and the possibility of effective defense.
To what extent can disciplinary measures be repealed or corrected?
A disciplinary measure that has already been imposed can, under certain conditions, be reviewed and, if necessary, repealed or amended. This can occur through legal remedies such as objection, action, or appeal in judicial disciplinary proceedings. In addition, the proceedings may be reopened if new facts or evidence become known at a later date that would justify a different assessment of the breach of duty (§§ 65 ff. BDG). Furthermore, a measure can be repealed on application or ex officio if it turns out that it was imposed unlawfully (e.g., in case of manifest illegality). In every case, careful legal consideration and observance of the right to be heard are necessary before a disciplinary measure can be corrected.
