Term and general definition of official offenses
Official offenses are criminal acts committed in connection with the exercise of a public office or sovereign position. Classical doctrine includes under this term in particular those crimes that relate to special official duties or can specifically be committed by public officials. As such, official offenses are usually committed by persons entrusted by virtue of their legal status with the performance of public duties.
The official function of the perpetrator constitutes an essential feature of these crimes. With official offenses, the legislator aims to protect confidence in the proper and dutiful performance of office and the integrity of the civil service.
Legal basis and sources of law
Criminal Code (StGB)
The criminal liability for official offenses is regulated in German criminal law, especially in the section “Offenses in Office” (§§ 331-358 StGB). The most important provisions include:
- Acceptance of benefits (§ 331 StGB)
- Bribery (§ 332 StGB)
- Granting of benefits (§ 333 StGB)
- Bribing (§ 334 StGB)
- Obstruction of punishment in office (§ 258a StGB)
- Perverting the course of justice (§ 339 StGB)
- False unsworn statement and perjury (§§ 153, 154 StGB) by public officials
- Assumption of authority (§ 132 StGB)
- Breach of official secrecy (§ 353b StGB)
- Forgery of documents in office (§ 348 StGB)
In addition, other provisions may also be applicable if they specifically refer to public officials or require their status.
Definition of public official (§ 11 para. 1 no. 2 StGB)
A prerequisite for the criminal liability for many official offenses is the status as a “public official”. The law defines the term in § 11 para. 1 no. 2 StGB. This includes, in particular, civil servants, judges, persons in public service as well as office holders and all persons who are employed by an authority or an institution performing public administration tasks.
Types and classification of official offenses
True and quasi-official offenses
- True official offenses: These can only be committed by public officials (e.g., perverting the course of justice, § 339 StGB). Offender status necessarily presupposes an official position.
- Quasi-official offenses: The offense may in principle be committed by anyone, but the official status of the perpetrator results in a qualified or privileged form (e.g., obstruction of punishment in office, § 258a StGB compared to § 258 StGB).
Official offenses with and without relation to benefits
- Official offenses in the context of acceptance/granting of benefits: These include offenses intended to safeguard the integrity of official conduct in connection with the acceptance or granting of benefits (see §§ 331-334 StGB).
- Official offenses from neutral breach of duty: Here, the breach of official duties itself is the main focus, for example in perverting the course of justice (§ 339 StGB) or breach of official secrecy (§ 353b StGB).
Historical legal development
The provisions governing official offenses have evolved along with the development of public administration and the modern civil service. As early as the criminal codes of the 19th century, special offenses for public officials were regulated in order to protect the then emerging professional civil service and to ensure the administration of justice. The current system and the precise definition of the group of public officials result from the need for clear rules against corruption and official misconduct.
Legally protected interests and purpose of official offenses
The aim of the statutory provisions is to protect the public interest in a state governed by the rule of law, impartiality, and integrity in office. Specifically, the following protected interests are paramount:
- Functionality of public administration
- Integrity, independence and objectivity of the civil service
- Public trust in the propriety of governmental actions
The threat of criminal punishment is intended to prevent developments such as corruption, legal violations, or arbitrariness by public officials.
Elements of the offense and modalities
Subjective group of offenders
In order to be punishable, the offender must usually be a public official within the meaning of § 11 StGB. This also includes “agents for the public service” and “European public officials” according to their respective legal definitions.
Acts of commission
The acts of commission vary depending on the offense but typically include:
- Official acts or omissions (e.g., wrongful omission to prosecute a crime)
- Acceptance, demanding, or allowing the promise of benefits
- Perverting the course of justice or unlawful exercise of official functions
Subjective element of the offense
Many official offenses, in addition to the objective elements, require intentional conduct, sometimes even with particular motivation or for personal gain. Some offenses may also be committed negligently (e.g., negligent breach of official secrecy).
Sanctions and legal consequences
Official offenses are punished—depending on the specific offense—with fines up to imprisonment of up to ten years (in especially serious cases of bribery), or even, in particularly serious cases, life imprisonment. Apart from criminal penalties, disciplinary measures and official consequences may also occur, such as removal from civil service or dismissal from office.
Special features in the investigation and prosecution of official offenses
There are often heightened requirements for the prosecution of official offenses, especially because the public interest is in need of protection and because of the risk of official or political interference. In certain cases, prosecution requires prior approval of the competent authority (§ 97 GVG, § 344 para. 2 StPO). The principle of legality (§ 152 para. 2 StPO) also plays an important role.
International context and special features in European law
International criminal law also contains similar provisions to protect the integrity of government institutions. Due to international agreements and the EU Anti-Bribery Directive, the legal situation in Europe has been harmonized. European public officials are specifically covered by § 11 para. 1 no. 2 lit. c StGB.
Significance and practical relevance
Official offenses play a significant role in the fight against corruption, abuse of authority, and misuse of power. They are essential tools for ensuring legality and the functionality of public institutions and serve to maintain public confidence in the functioning of the state.
Literature and further information
- Commentary on the Criminal Code, current editions
- German Federal Agency for Civic Education: Background information on anti-corruption criminal law
- Federal Court of Justice and Higher Regional Courts case law database
Note: This article provides a systematic overview of the subject of official offenses and does not claim to be exhaustive in respect of all individual questions. The precise application of legal provisions always depends on the specific case.
Frequently asked questions
When is there an official offense and how is it distinguished from other criminal offenses?
An official offense exists when a public official, i.e., usually a civil servant, judge, or another person in public service, commits a criminal act that specifically relates to their official position or the performance of certain official duties. These acts differ from general criminal offenses in that they can only be committed by public officials and directly concern their official duties or their dealings with their official position. In contrast, general criminal offenses—such as theft or bodily harm—can be committed by anyone, regardless of official status. Official offenses regularly feature a specific breach of trust between the state and its citizens, as they directly affect the proper functioning and integrity of public administration. The exact distinction is made on the basis of the provisions in the Criminal Code (e.g., §§ 331 ff. StGB – Bribery/corruption, § 339 StGB – Perverting the course of justice, § 340 StGB – Bodily harm in office), which explicitly address the special situation of abuse or breach of duty by public officials.
What typical official offenses exist under German criminal law?
German criminal law recognizes a variety of official offenses which are regulated in the Special Part of the Criminal Code. The most frequent include: bribery and bribing in office (§§ 331-335 StGB), perverting the course of justice (§ 339 StGB), bodily harm in office (§ 340 StGB), and breach of custody (§ 133 StGB). Other relevant offenses are obstruction of punishment in office (§ 258a StGB), unauthorized disclosure of official secrets (§ 353b StGB), or the issuance of false health certificates (§ 278 StGB, if committed during the exercise of official duties). What all these offenses have in common is a particular connection to the official position or function of the offender. The legislation with these provisions acknowledges the fact that public officials are required, in a special way, to protect public safety, order, and the trust of the general public.
Who qualifies as a public official within the meaning of official offenses?
In the context of official offenses, the term ‘public official’ is defined with legal precision, see § 11 para. 1 no. 2 StGB. Public officials include civil servants in the legal sense, as well as judges, persons in public service, and those appointed to public duties—such as experts, notaries, or also honorary mayors and possibly employees of public law corporations. The decisive factor is that the person concerned performs public duties and exercises sovereign powers or otherwise fulfills tasks of public administration. This definition is broader than the classic concept of civil servants, thus ensuring that persons outside the civil service who perform comparable sovereign functions are also included in criminal liability for official offenses.
What criminal consequences can arise from committing an official offense?
The criminal consequences for a proven official offense are usually severe. Depending on the gravity of the act, penalties can range from a fine to several years of imprisonment. For example, bribery in office (§ 332 StGB) provides for a prison sentence of six months to five years, or up to ten years in especially serious cases. Beyond the actual penalty, a conviction typically entails further consequences such as loss of civil servant status, pension entitlements, or liability for damages. In particularly serious cases, the court can also exclude the offender from holding public office for a certain period (§ 45 StGB). Disciplinary measures at the level of official law are also common side effects.
What role does the subjective element of the offense play in official offenses?
The subjective element of the offense refers to the perpetrator’s intention, knowledge, and will at the time of committing the crime (intent or negligence). For most official offenses, at least conditional intent is required, meaning the public official must know and intend to violate official duties. For offenses such as perverting the course of justice or bribery, deliberate action is generally necessary, e.g., to obtain a personal advantage or to pervert the law. In some official offenses, however, negligence may suffice, for instance if an official duty is breached out of carelessness—as may be the case with breach of custody (§ 133 StGB). The exact design varies according to the specific offense and is detailed in the respective provisions of the Criminal Code.
Can attempted official offenses also be punishable?
Yes, the attempt to commit an official offense is punishable under the general rules of the Criminal Code (§§ 22, 23 StGB) if the basic offense is a felony or expressly punishes the attempt as well. For example, both attempted bribery (§ 332 StGB) and attempted perverting the course of justice (§ 339 StGB) are punishable. In such cases, it suffices for the perpetrator to immediately commence their plan, even if the result is not achieved. According to § 23 para. 2 StGB, the attempt is usually punished less severely than the completed act; actual consequences depend on the specific case and nature of the offense.
What are the limitation periods for official offenses?
The limitation periods for official offenses are governed by the general provisions of § 78 StGB and are determined by the statutory maximum penalty of the relevant offense. For example, the limitation period for bribery in office (§ 332 StGB) is ten years because the offense is punishable by a sentence of more than five years. For less serious official offenses, limitation periods of three to five years may apply. In particularly serious cases, such as severe corruption, the limitation period may be extended accordingly. The period usually begins when the offense is completed but is suspended if the perpetrator cannot provisionally be prosecuted, e.g., due to official immunity.
