Definition and Concept of Watch Misconduct
Die Watch Misconduct is a term from German disciplinary law and criminal law that describes a special form of breach of duty in the area of guard service. It refers to the culpable, wrongful conduct of a person entrusted with a special monitoring, control, or supervisory function—particularly in a military, police, or security service context. Watch misconduct is significant in various areas of law and entails different legal consequences.
Typically, watch misconduct occurs when a person assigned to guard or surveillance duties fails to perform their tasks properly, such as through inattentiveness, negligence, or intentional abandonment of their assigned post. The legal provisions concerning watch misconduct are found in particular in military law, disciplinary law, sometimes also in the Criminal Code, and in relevant service regulations.
Legal Foundations of Watch Misconduct
Disciplinary Law Regulations
In German Military Disciplinary Law watch misconduct is defined as a breach of duty by a soldier assigned to guard duty. The statutory bases are found especially in the Soldiers Act (SG) and in the Military Disciplinary Code (WDO).
Watch Misconduct in the Soldiers Act
According to § 10 (1) SG, soldiers have a duty of obedience and supervision. Watch misconduct in particular constitutes a breach of the duty to perform duties conscientiously. However, the Soldiers Act does not stipulate any independent elements for watch misconduct but refers fundamentally to general professional duties.
Watch Misconduct in the Military Disciplinary Code
The WDO clarifies disciplinary sanctions for duty violations. According to § 17 WDO, watch misconduct constitutes a service-related offense that can be punished with disciplinary measures. Possible sanctions include, for example:
- Reprimand
- severe reprimand
- restriction on leave
- detention
- salary reduction
- demotion or dismissal (in serious cases)
The severity of watch misconduct is assessed based on the risk posed to the guarded objects, persons, or information, as well as the specific responsibility of the duty-holder.
Criminal Law Classification
In certain scenarios, watch misconduct may be criminally relevant.
Watch Misconduct as a Criminal Offense under Military Criminal Law
German criminal law contains specific offenses for soldiers or persons in military service, such as unauthorized abandonment of post or guard duty according to § 15 Military Criminal Code (WStG). Under this provision, a person is criminally liable who:
- intentionally or negligently leaves the guard duty assigned to them,
- falls asleep while on duty,
- leaves their post or area, or
- otherwise seriously neglects their duties.
Penalties range from fines to imprisonment; in particular circumstances (e.g., state of alert) or where aggravating risk situations arise, harsher penalties may apply. The regulations apply exclusively to members of the Bundeswehr or conscripts performing military service.
Watch Misconduct in Civil Criminal Law
For other employees in guard service (e.g., security services, correctional officers, police), there is no specific criminal offense concerning watch misconduct. Their breaches of duty—if criminally relevant—are punished under general offenses (such as § 340 StGB – Bodily harm in office, § 339 StGB – Perverting the course of justice) where applicable. Negligent conduct that leads to damage to property, persons, or assets may be punishable as negligent bodily harm or negligent damage to property offenses.
In the classical sense, however, watch misconduct in criminal law is primarily an offense under military law.
Elements and Typical Scenarios of Watch Misconduct
Elements of the Offense
The essential elements of watch misconduct are:
- Assumption of a monitoring or control function (e.g., as part of guard duty)
- Breach of duty by act or omission (e.g., abandonment of post, negligence, lack of attention)
- Subjective fault (intent or negligence)
- Endangerment or violation of legal interests (protected objects, persons, facilities, information)
Sanctions generally require that the breach of duty concretely impairs the protection scope of the respective assignment.
Examples of Watch Misconduct
- Falling asleep while on guard duty
- Leaving or moving away from the assigned guard post
- Allowing unauthorized access to the protected object
- Omission of required checks or security measures
- Unlocked doors/gates at facilities subject to security obligations
- Violation of alarm or security regulations
The legal assessment of cases depends on the scope and severity of the breach of duty as well as the risk situation.
Legal Consequences of Watch Misconduct
Disciplinary Measures
Within the framework of public-law service relationships (soldiers, public officials, correctional officers, police), violations in the sense of watch misconduct are generally to be punished by disciplinary measures. The choice of measure is made according to the principle of proportionality. In cases of repeated or serious duty violations, official consequences up to dismissal from service may be imposed.
Criminal Law Sanctions
For punishable watch misconduct (especially in the military sector), penalties such as imprisonment, fines, or detention are possible. Where there is general culpability, secondary consequences such as loss of official position, dismissal, demotion, or prohibition on military service may apply.
Damages and Liability
If watch misconduct results in pecuniary, personal, or property damage, claims under service law and/or civil liability may arise. According to the principle of personal liability the person under a duty may be held personally liable for intentional or grossly negligent watch misconduct (§ 839 BGB in conjunction with § 34 GG).
Significance of Watch Misconduct in Practice
The prevention of watch misconduct is a central objective in security-related areas. It serves to protect facilities, sensitive information, and areas of life. In the armed forces and in security-sensitive tasks, flawless performance of guard duty is of particular importance. Sanctioning watch misconduct helps maintain discipline and prevent security risks.
Literature and Further References
- Military Criminal Law (WStG)
- Soldiers Act (SG)
- Military Disciplinary Code (WDO)
- BGH, Decision of 18.06.1957 – 2 StR 230/57
- BeckOK Military Law
- Commentary on Disciplinary Law and Breaches of Duty
In summary watch misconduct is a serious breach of duty in the area of guard service, whose legal treatment is detailed in disciplinary, criminal, as well as civil service and military law. Individual case evaluations take into account both the objective circumstances and the degree of subjective fault.
Frequently Asked Questions
What legal consequences can arise from watch misconduct?
Depending on the severity of the violation, watch misconduct can have legal consequences of varying gravity. In the military sector, especially under German law, watch misconduct is punishable under § 21 Military Criminal Code (WStG). Possible consequences include imprisonment, disciplinary measures, and, under certain circumstances, sanctions under service law such as demotion or dismissal from service. Criminal prosecution depends on the nature and extent of the duty violation, the damage caused, and the degree of negligence or intent. Watch misconduct is particularly serious if it results in significant risk to the security of the service object, the life and limb of others, or important state interests. In the private security sector (e.g., with private security companies), watch misconduct may result in employment law sanctions up to immediate termination, and civil claims for damages may also arise.
What are the prerequisites for punishable watch misconduct?
The prerequisite for watch misconduct to be relevant under criminal law is that the person concerned has been expressly entrusted with a guard duty—a special protection task—during service time. Mere omission of general duties of care is not sufficient. It must be proven that specific, individually assigned guarding, security, or monitoring tasks were violated during the actual period of duty. For criminal liability, it is also required that at least negligent conduct occurred; in cases of intent, the offense is judged more severely. Acts outside the scope of guard duty or where no sufficiently precise instruction was given are not punishable.
What role does the degree of fault play in legal assessment?
The degree of fault is of central importance when assessing watch misconduct. The legal framework distinguishes between intent and negligence. Negligent violations are punished less severely than intentional ones. Intent is present if the person concerned consciously and knowingly neglects their assigned task or even intentionally abuses it. Negligence occurs when the required care is disregarded without recognizing or accepting the risk of a breach of duty. Depending on the degree of negligence (simple or gross negligence) and the extent of damage caused, the penalty may vary considerably.
Can watch misconduct also give rise to civil liability?
Yes, in addition to criminal sanctions, watch misconduct can give rise to civil liability claims. If a breach of duty violates the rights of a third party or the protected object (e.g., the owner of the guarded property), the guard may be held liable for any resulting damages. Under employment or service contracts, contractual claims for damages may also be asserted against the responsible person. In cases of gross negligence or intent, there is generally unlimited liability for all damages, whereas for minor negligence, liability may be limited or even excluded.
What is the significance of watch misconduct in a disciplinary law context?
In the context of disciplinary law, particularly for public officials and soldiers, watch misconduct can have serious consequences regardless of any potential criminal conviction. These include reprimands, fines, demotions, up to dismissal from service. Disciplinary measures depend on the severity of the breach under applicable disciplinary law (e.g., Federal Disciplinary Act, Military Disciplinary Code) and take into account the degree of misconduct, the motivation of the person concerned, and any risk of recurrence. Even in private guard and security services, employment contract or internal sanctions may be imposed.
How does watch misconduct affect the employment relationship?
Watch misconduct can significantly strain or even end the employment relationship. For soldiers and public officials, a serious breach of duty may sustainably undermine the relationship of trust with the employer. This can lead to disciplinary measures or even premature dismissal from service. In the private security sector, serious watch misconduct regularly justifies immediate termination. Such a breach of duty may also adversely affect the issuance of a certificate of good conduct or reliability check, and thus lead to a permanent occupational ban in security-sensitive sectors.
Under what circumstances does punishable watch misconduct not exist?
No punishable watch misconduct exists if the required guard duty could not be fulfilled due to unforeseeable and unavoidable external circumstances (e.g., deception by third parties, force majeure) and the guard is not at fault. Criminal liability does not exist if the guard has demonstrably done everything reasonably possible to prevent the breach of duty, or if there is no objective violation of service regulations. Administrative errors or organizational deficiencies outside the control of the guard generally do not establish personal criminal liability.
