Definition and Fundamentals of Disciplinary Proceedings
Das Disciplinary Proceedings are statutory procedures for investigating and sanctioning culpable breaches of duty by members of the public service or comparable specially regulated professional groups. The objective of the proceedings is to identify breaches of official duty under civil service law and to impose disciplinary measures as sanctions. Disciplinary proceedings are to be clearly distinguished from criminal investigations and official assessment procedures.
Scope of Disciplinary Proceedings
Disciplinary proceedings predominantly concern civil servants, judges, and soldiers, and also extend to other professional groups with special disciplinary responsibilities. The principal regulations are found in particular in the Federal Disciplinary Act (BDG) for federal civil servants, the Soldiers Act (SG) for members of the Bundeswehr, and the respective state disciplinary acts for state civil servants.
Legal Bases and Structure of Disciplinary Proceedings
Statutory Foundations
The conduct of disciplinary proceedings is regulated in numerous laws and regulations. Central German statutes include:
- Federal Disciplinary Act (BDG)
- State Disciplinary Laws
- Soldiers Act (SG)
- Judiciary Legislation, in particular the DRiG (German Judiciary Act)
- Service law regulations in public service law
These statutes govern the procedure, possible disciplinary measures, responsibilities, and the rights of those involved.
Types of Disciplinary Proceedings
In principle, two types of proceedings are distinguished:
- Simplified Disciplinary Proceedings: Conducted in cases of minor service-related offenses under certain conditions and designed for prompt clarification and sanctioning.
- Formal Disciplinary Proceedings: Applied in cases of serious or not clearly ascertainable breaches of duty and is subject to more extensive regulation.
Parties Involved and Responsibilities
The following parties are typically involved in disciplinary proceedings:
- Superior: Initiates, conducts the disciplinary proceedings, and, where applicable, issues a measure.
- Accused Person (civil servant, soldier, judge, etc.): The proceedings are directed against this person.
- Disciplinary Authority: In certain cases responsible for final decisions on more serious measures.
Course of Disciplinary Proceedings
1. Initiation and Preliminary Inquiries
Disciplinary proceedings usually begin with a initiation order issued by the responsible superior if there is a suspicion of a breach of duty. Prior to this, preliminary inquiries may be conducted to clarify the facts. At this stage, it is examined whether there are actual indications of a breach of duty.
2. Investigation
During the investigation, evidence is collected, witnesses are questioned, documents are reviewed, and, where applicable, statements are obtained. The affected person has the right to be heard and may comment on the matter and submit evidence.
3. Conclusion and Decision-Making
After the conclusion of the investigation, the superior decides how to proceed:
- Termination of Proceedings: If there is insufficient evidence of a breach of duty.
- Disciplinary Measure: If a breach of duty is established, a disciplinary measure is imposed.
- Application for Disciplinary Action: In serious cases, an application is made to the competent administrative court.
4. Legal Remedies and Court Proceedings
There are usually legal remedies against decisions in disciplinary proceedings, in particular objection and court proceedings before administrative courts. Judicial disciplinary proceedings are modeled on administrative dispute procedures in terms of procedure and structure but have their own particularities, especially with regard to the principle of official investigation.
Disciplinary Measures
Types of Disciplinary Measures
Disciplinary law provides for graduated sanctions, the severity of which depends on the seriousness and extent of the breach of duty. Typical disciplinary measures include:
- Reprimand
- Fine
- Reduction of remuneration
- Demotion
- Removal from service (in civil service law)
- Reduction in rank und Dismissal (in military law)
The specific measure depends on the severity and circumstances of the breach of duty, any previous disciplinary record, and the official and personal circumstances.
Significance for the affected person
Disciplinary measures directly affect the employment relationship and the career prospects of the affected person. In addition to civil service consequences, entitlements to civil service benefits and pensions may also be affected.
Relationship to Criminal and Other Proceedings
Separation and Dependency Provisions
Disciplinary proceedings are to be conducted independently of any criminal proceedings. Assessment and sanctioning are made independently, although criminal convictions regularly have significant importance for disciplinary proceedings and the decision on disciplinary measures (so-called binding effect under § 16 BDG). The reopening of disciplinary proceedings after the conclusion of criminal proceedings is possible if new facts or evidence emerge.
Overlap with Other Proceedings
Disciplinary proceedings may be conducted in parallel or consecutively with employment law, official, or criminal proceedings. The respective procedures pursue different objectives and interests in sanctioning. For example, a public sector employee can be held accountable under both employment law and disciplinary law.
Data Protection and Rights of Involvement
Rights of the Accused Person
In disciplinary proceedings, the rights of the person concerned are particularly protected by law. These include:
- Right to be heard and access to records
- Right to submit statements and evidence
- Preservation of procedural rights in judicial disciplinary proceedings
Data protection aspects
The processing of personal data in disciplinary proceedings is subject to the data protection provisions of the Federal Data Protection Act (BDSG) and the relevant disciplinary laws. Procedural documents may only be collected, processed, and stored within the scope of statutory provisions.
Significance and Purpose of Disciplinary Proceedings
Disciplinary proceedings constitute a key instrument for maintaining the functionality and integrity of the public service. They serve to enforce official order, punish misconduct, and protect confidence in the proper performance of official duties.
Further Reading and Sources
- Federal Disciplinary Act (BDG)
- State Disciplinary Laws
- Soldiers Act (SG)
- German Judiciary Act (DRiG)
- Federal Data Protection Act (BDSG)
- Commentary on the Federal Disciplinary Act, current edition
This contribution offers a comprehensive legal discussion of the term Disciplinary Proceedings and provides detailed information on legal bases, process flow, parties involved, sanctions, and procedural rights. Thus, the article gives a well-founded overview for the legal lexicon and serves as a quick but thorough orientation on legal questions concerning disciplinary proceedings.
Frequently Asked Questions
How does a disciplinary proceeding proceed legally?
A disciplinary proceeding follows strict statutory requirements, in particular the Federal Disciplinary Act (BDG) for federal civil servants or the respective state disciplinary acts. The process begins with the so-called suspicion of a breach of official duty. As a rule, proceedings commence with the initiation order, in which the public employer officially initiates proceedings against the civil servant and informs them of the specific accusation. The investigation aims to clarify the facts. The civil servant is given the opportunity to comment (the right to be heard), which is a key procedural principle. In all phases of the proceedings, they have the right to inspect the files and to be represented by a Rechtsanwalt or legal counsel. The investigation may include questioning witnesses, collecting documents, and hearings. After the investigation is completed, the civil servant is informed of the outcome and may comment again. Thereafter, the responsible disciplinary authority decides which measure to impose or whether to discontinue the proceedings. If a disciplinary measure is imposed, this will be notified in writing, against which the civil servant may lodge a legal remedy.
What rights does the person concerned have in disciplinary proceedings?
The person concerned, usually a civil servant or employee in the public service, has extensive rights throughout the disciplinary proceedings to allow for an adequate defense. Central to this is the so-called right to be heard, i.e., the person concerned must be informed and heard about all essential steps and the status of the proceedings. They also have the right to file inspection, to review all allegations and evidence raised against them. They may express themselves in writing or orally and—at their own expense—be supported by legal counsel or a union representative. The presumption of innocence applies throughout the proceedings. The person concerned may independently appeal against burdensome measures, such as a temporary suspension from duty or the withholding of remuneration.
Which disciplinary measures may be imposed at the end of a disciplinary proceeding?
Depending on the severity of the established breach of official duty, the law provides for various disciplinary measures. For civil servants, these range from a reprimand, fine, and reduction of remuneration to demotion, transfer, or ultimately removal from service. The authority determines which measure is imposed in each case by considering the seriousness of the offense, the person’s previous conduct, and any mitigating or aggravating circumstances. For employees in the public service, there is a separate employment law system with disciplinary measures such as warnings, transfers, or dismissal.
Is it possible to take legal action against a disciplinary decision?
Every adverse decision in disciplinary proceedings may be challenged by legal remedies available to the person concerned. After receipt of the notice regarding the disciplinary measure, an objection may be lodged. If the objection process does not provide relief, it is possible to file an administrative lawsuit with the competent administrative court. In these judicial proceedings, the legality of the disciplinary measure is reviewed. The permissibility and appropriateness of the investigation as well as any procedural errors are also subject to judicial review. Furthermore, appeals to higher courts (Berufung or Revision) are possible against decisions of the administrative courts.
How long does a disciplinary proceeding usually last?
The duration of a disciplinary proceeding depends on numerous factors, such as the complexity of the underlying facts, the scope and number of witnesses to be questioned, and possible procedural delays due to legal remedies or inspection rights. As a rule, legislators require that disciplinary proceedings must be conducted “without undue delay.” In practice, an average disciplinary proceeding lasts several months. In particularly extensive or complex cases—especially when parallel criminal investigations occur—the process may extend to one to two years or longer.
What are the consequences of an ongoing disciplinary proceeding for the employment relationship of the person concerned?
The initiation of disciplinary proceedings can impact the employment relationship. The authority may provisionally remove the person concerned from duty and, in particularly serious cases, withhold all or part of their remuneration (§ 38 ff. BDG). However, these measures are merely for securing official operations and are temporary in nature. The final decision on the future employment relationship is made by the authority only after the proceedings are concluded. In the meantime, the civil servant is generally required to maintain confidentiality and continues to be subject to the general official duties, unless they are provisionally suspended from duty.
What happens if a criminal investigation is initiated during disciplinary proceedings?
If a criminal investigation is initiated in parallel with disciplinary proceedings—for example, on suspicion of an official offense—the disciplinary proceedings may be suspended until the conclusion of the criminal case. The results of criminal proceedings are not always binding for disciplinary proceedings but are regularly adopted if they are detailed and comprehensible. If the person concerned is convicted in criminal proceedings, a disciplinary procedure often follows that reviews and independently assesses the official consequences. An acquittal in criminal proceedings does not generally preclude disciplinary measures, provided that official misconduct is still assumed.
