Concept and definition of government crime
The term government crime (also state crime or “crimes of the state”) refers to unlawful acts committed by government bodies, government members, or other officials or state institutions in the course of their official duties. Government crime includes both individual and institutional criminal acts that violate national or international law and are characterized by the particular office of the perpetrator or the institutional involvement of state agencies.
Distinction from related terms
Government crime must be distinguished from related terms such as corruption, white-collar crime, or official offenses. While corruption specifically refers to bribery offenses and white-collar crime primarily concerns economic actors, government crime goes beyond these individual aspects and covers all criminal offenses attributable to actions by institutional or individual state decision-makers.
Forms of government crime
Types and examples
Government crime can take many forms. The most important types are:
- Abuse of office: Improper acceptance of benefits or exceeding official powers (e.g., in cases of police misconduct).
- Embezzlement of public funds: Unlawful use or misappropriation of state finances and resources.
- Unlawful use of force: Deployment of police, military, or intelligence services without a legal basis or to enforce personal or political interests.
- Election manipulation: Violation of election laws and principles by those responsible in electoral institutions.
- Cover-up offenses: Suppression of evidence, manipulation of files, or deliberate misguidance of the judiciary and the public.
- Human rights violations: Violations of national or international human rights standards (e.g., torture, discrimination, unlawful detention).
Institutional versus individual government crime
Institutional government crime refers to systematic legal violations promoted by structural deficiencies within state institutions. In contrast, individual government crime occurs when individual officeholders commit offenses on their own initiative.
Legal classification and criminal law aspects
National criminal law provisions
Government crime is covered in Germany by various provisions of the Penal Code (StGB) as well as ancillary laws such as the Anti-Corruption Act or specific laws for officials (such as the Civil Servant Status Act). Relevant offenses include, among others:
- Bribery and corruption (§§ 331 et seq. StGB)
- Embezzlement (§ 266 StGB)
- Acceptance and giving of benefits
- Official offenses (§§ 331-358 StGB, especially § 339 StGB: perversion of justice)
Due to its particular character as an offense within the scope of government activity, criminal law accounts for government crime with stricter requirements for prosecution and, where applicable, particular public interest.
Criminal procedural challenges
The criminal prosecution of government crime is often accompanied by significant challenges. These include:
- Service and immunity regulations: For members of governments, parliaments, or international staff, immunity provisions (parliamentary immunity, diplomatic immunity) can hinder or prevent prosecution.
- Institutional insulation: Lack of transparency, confidentiality obligations, and an “official secrecy” can impede investigations.
Limitation periods and sentencing
The general rules for limitation periods (§§ 78 et seq. StGB) apply to offenses related to government crime, although longer periods or special exceptions may apply for particularly serious offenses such as perversion of justice or human rights violations. Sentencing depends on the actual damage caused, the severity of the abuse, and the breach of trust toward the community.
Government crime in international law
International law dimension
Particularly in cases of serious violations of human rights (e.g., torture, genocide, crimes against humanity), government crime can also gain an international legal character. Under the Statute of the International Criminal Court (ICC), certain governmental offenses are prosecutable worldwide (§§ 5-8 Rome Statute, see International Criminal Code).
International prosecution
The prosecution of government crimes under international law is carried out by international criminal courts (e.g., ICC, ad hoc tribunals) as well as national courts based on the principle of universal jurisdiction, if the offense is sufficiently serious and national interests are violated.
Examples of historical and current cases
Famous cases of international government crime include the Nuremberg Trials against Nazi leaders, trials against members of the Chilean or Argentine military dictatorship, as well as convictions for genocide in Rwanda or the former Yugoslavia.
Prevention and control of government crime
National oversight mechanisms
Various instruments serve to prevent and control government crime:
- Parliamentary oversight: Parliamentary inquiry committees, the right of members of parliament to ask questions.
- Independent supervisory authorities and audit offices
- Transparency and freedom of information laws
- Whistleblower protection mechanisms
International protection mechanisms
International organizations such as the United Nations, Organization for Security and Co-operation in Europe (OSCE), or the Council of Europe have developed instruments for the control and prosecution of state crime, such as anti-corruption conventions and monitoring committees.
Literature and further sources
- Arnim, H.H. von: “Staatskriminalität: Formen, Ursachen, Gegenstrategien”.
- Neumann, A.: “Government crime in a democratic constitutional state”, NJW 2010, p. 1201.
- Friedrich-Ebert-Stiftung: “State crime and its combat”, Berlin 2020.
- International Handbook on the topic of Governmental Crime, United Nations Office on Drugs and Crime (UNODC) Reports.
Note: The term government crime is not always clearly defined in common usage and is applied differently in different countries and contexts. It always includes all unlawful and criminal acts carried out by public officeholders with direct relation to the exercise of office.
Frequently asked questions
What legal frameworks apply to the criminal prosecution of government crime?
The criminal prosecution of government crime in Germany is subject in particular to the Criminal Code (StGB) as well as special statutory provisions (e.g., the Federal Civil Servants Act or the Members of Parliament Act). Government crime in the legal context refers to offenses committed by members of government or state officeholders in the course of or by exploiting their official position. Special offenses frequently apply, such as bribery and corruption (§§ 331 et seq. StGB), abuse of office (§ 339 StGB), embezzlement (§ 266 StGB), or obstruction of justice in office (§ 258a StGB). Investigations against government members in many cases require the prior lifting of their immunity (§ 46 Members of Parliament Act, Article 46 GG for Bundestag members), as this serves as a special protection for the office. Criminal proceedings are usually conducted by specialized prosecutors for corruption offenses, and the Federal Public Prosecutor may be responsible for especially high-ranking officials. However, international agreements such as the UN Convention against Corruption (UNCAC) or EU regulations may also apply in individual cases, providing a framework for international cooperation in the prosecution of cross-border government crime.
What special features apply to investigations against government members with regard to immunity regulations?
For investigations against government members, the principle of immunity generally applies in Germany, especially for members of the Bundestag and the government (e.g., Chancellor, Federal Ministers). Immunity provisions are laid down in the Basic Law (Art. 46 GG) and in statutory regulations such as the Members of Parliament Act (§§ 36 et seq.). They stipulate that criminal investigations against a member of the Bundestag are inadmissible without prior approval from the Bundestag, unless the individual is arrested during or because of the commission of a criminal offense (so-called “acceptance of flight risk” or “in flagrante delicto”). The lifting of immunity requires a majority decision by the Bundestag; the responsible Immunity Committee examines whether official or political reasons oppose it. The same rules apply to members of the federal government who are also members of parliament. Immunity thus constitutes a special procedural obstacle intended to maintain the functionality of parliament and protect against politically motivated prosecution, without granting blanket impunity.
To what extent can official offenses by government members be clarified by parliamentary inquiry committees?
Parliamentary inquiry committees are a central oversight instrument of parliament over the government and can be set up pursuant to Article 44 of the Basic Law at the request of one quarter of the members of the Bundestag. They serve to shed light on grievances, misconduct, or concrete suspicions regarding state bodies, including possible government crime. Inquiry committees have wide-ranging powers, such as questioning witnesses, accessing files, and consulting experts. However, they are not criminal courts, but rather political bodies whose aim is to investigate the facts and provide political assessment. Their findings can serve as a basis for criminal investigations or disciplinary measures but must comply with the rule of law principle of the separation of powers. Cooperation with law enforcement authorities is therefore often regulated, and it is ensured that the work of the committee does not violate the presumption of innocence.
What international mechanisms exist to combat government crime?
Government crime with cross-border significance is subject to various international agreements and forms of cooperation. The most important is the UN Convention against Corruption (UNCAC), which sets standards for the prevention, detection, and prosecution of corruption offenses, including immunity issues, and establishes an international legal assistance framework. The Organization for Economic Cooperation and Development (OECD) has also set standards with its Anti-Bribery Convention, which, among other things, criminalizes the bribery of foreign public officials. At the European level, instruments such as the Convention on the Fight against Corruption involving Officials of the European Communities or EU directives apply, setting, among other things, minimum standards for criminal offenses, investigative measures, and the exchange of information. Europol and OLAF (European Anti-Fraud Office) also contribute to improved prosecution of government crime at the international level and assist with cross-border case coordination.
What criminal procedural special features apply to investigations against current or former government members?
Investigations against current or former government members are often accompanied by special criminal procedural challenges. Because of the public function and the protection interest of the office, there is a particular need for confidentiality, for example, to maintain the functionality of state organs and avoid prejudgments. In cases involving official or state secrets, special protective regulations apply, such as the obligation of confidentiality under the Law on the Formal Commitment of Non-Civil Servant Persons (Commitment Act) and safeguards under the Security Clearance Act (SÜG). In addition, special responsibilities may apply, for example for investigations at federal level by the Federal Prosecutor General or the Federal Public Prosecutor. During ongoing investigations, parliamentary oversight bodies or the Federal President (for Federal Ministers) may be involved in proceedings, especially if the appointment or dismissal of a government member is related to criminal allegations. Furthermore, the public interest in prosecution (§ 153 StPO) is regularly given significant weight, meaning that the discontinuation of proceedings on grounds of expediency is only possible within narrow limits.
How do disciplinary consequences affect the criminal prosecution of government crime?
Disciplinary investigations and measures generally proceed independently of criminal investigations but may influence each other. A final criminal conviction can result in disciplinary removal from office or the loss of pension entitlements (e.g., § 24 Civil Servant Status Act). Conversely, disciplinary misconduct does not necessarily have criminal relevance, but may provide grounds for prosecutorial investigations. Disciplinary sanctions include reprimands, fines, suspensions, up to dismissal from service. These measures are meant to ensure that public offices remain free from individuals who have been proven to have committed serious misconduct or violations of their official and service duties. However, a final acquittal in criminal proceedings does not automatically preclude disciplinary measures if official duties were violated that do not constitute a criminal offense.
What role do whistleblowers play in uncovering government crime, and how are they legally protected?
Whistleblowers play an increasingly important role in uncovering government crime, as they often bring internal grievances, official misconduct, or cases of corruption to the attention of the public or competent investigative authorities. The legal protection of whistleblowers in Germany is established primarily through the Whistleblower Protection Act (HinSchG), which is based on the EU Whistleblower Directive. The law obligates public and private entities to establish internal and external reporting channels to which whistleblowers can turn while maintaining their anonymity and without fear of retaliation. Discrimination, dismissal, or any other disadvantages resulting from a lawful report are expressly prohibited and may be subject to claims for damages. Nevertheless, whistleblowing may come into conflict with criminal and employment law restrictions, such as in the case of revealing state secrets. Therefore, a careful examination must be carried out in each individual case to determine whether the public interest in disclosure justifies an exception to official and criminal law obligations.
