Concept and Significance of Judicial Perversion of Justice
Judicial perversion of justice under German criminal law is a particularly serious form of breach of official duty by public officials involved in the administration of justice. It serves as a central protective instrument for maintaining trust in the independence and objectivity of adjudication and judicial administration as a whole. The scope of criminal liability extends to actions of judges, as well as individuals entrusted with public adjudicative functions, including arbitrators, notaries, and other officials in the judicial process.
Statutory Regulation of Judicial Perversion of Justice
Offence Provision § 339 of the German Criminal Code (StGB)
Judicial perversion of justice is governed by § 339 of the German Criminal Code (StGB). The legal text reads:“A judge, another official, or an arbitrator who, in directing or deciding a legal matter, perverts the law to the benefit or detriment of a party, shall be punished with imprisonment from one year up to five years.”This provision constitutes a so-called official offence and is part of the criminal law rules protecting the principle of the rule of law.
Legal Elements of Judicial Perversion of Justice
Group of Perpetrators
The group of perpetrators is conclusively defined and includes:
- Judges (professional and lay judges)
- Other officials entrusted with directing or deciding legal matters (e.g. public prosecutors, notaries, judicial officers)
- Arbitrators as defined by procedural codes
Thus, the legal elements apply exclusively to individuals who, by virtue of their position, possess official decision-making authority.
Objective Legal Element
Conducting or deciding a legal matter
The offence requires that the perpetrator is in a specific situation of conducting or deciding a legal matter. A legal matter is understood to be any case in which applicable law is to be applied to an individual case, especially judicial proceedings (civil, criminal, administrative, etc.).
Perversion of the Law
The core act consists in the “perversion of the law.” This occurs when the public official knowingly and seriously violates the relevant law with the intent to provide an advantage or disadvantage to a party.
Specifically, this means:
- The deviation from the law must be arbitrary or systematic; a mere oversight or a simple (even gross) error of judgment is not sufficient.
- Perversion of the law entails a serious exceeding or even disregard of applicable law through intentional conduct.
Advantage or Disadvantage for a Party
Judicial perversion is satisfied in every case of systematic injustice to the benefit or detriment of a party; this can be any form of intentional breach of decision-making, not only clear material advantages.
Subjective Legal Element
Prerequisite is Intent – the perpetrator must know and intend to seriously violate the law. The intention to harm a party or to confer an advantage is always required. Negligence is not sufficient.
Distinctions and Delimitation Issues
Distinction from Errors in the Application of Law
Not every unlawful decision is at the same time a perversion of justice. The threshold for perversion is decisive: it clearly lies above the mere legal error, even if it is gross. Only the obvious, systematic, or arbitrary disregard for the law, or a decision made against better knowledge, constitutes the offence.
Difference from Other Breaches of Official Duty
Perversion of justice must be clearly distinguished from other offences in the catalogue of official duties under the German Criminal Code, in particular from False Certification by a Public Official (§ 348 StGB), Acceptance of Benefits (§ 331 StGB) and Breach of Trust (§ 266 StGB). Judicial perversion is present whenever the core duty of impartial application of the law is intentionally violated to the benefit or detriment of a party.
Threat of Punishment and Legal Consequences
Sentence Range
§ 339 StGB provides for a significantly increased penalty range:
- Imprisonment from one year to five years (minimum sentence = 1 year)
A suspended sentence on probation is only possible if special circumstances justify it (§ 56 para. 2 StGB).
Significance of Conviction
A conviction for perversion of justice entails far-reaching consequences:
- Removal from office and public service
- Entry in the certificate of conduct
- Loss of reputation and permanent cessation of professional activity in the field of judicial administration
Legally Protected Interest
The basic legal interest protected by this provision is the public’s trust in the integrity, objectivity, and legality of legal decision-making. Especially protected is the rule of law principle, and thus the credibility and functionality of the entire legal system.
Case Law on Perversion of Justice
Federal Court of Justice (BGH)
The highest court jurisprudence, especially of the Federal Court of Justice, clarifies the requirements for establishing judicial perversion. The BGH demands a blatant, clear, and deliberate departure from the law, taking into account the motives of the perpetrator, the type and seriousness of the breach of duty, and the impact on the proceedings.
Burden of Proof and Requirements in Criminal Proceedings
Perversion of justice is, as an intentional offence, difficult to prove in criminal proceedings. The threshold for criminal liability is high; doubts always benefit the accused (in dubio pro reo).
International Perspective and Comparison
Judicial perversion of justice is criminalized in many legal systems as a form of judicial misconduct or “abuse of office.” However, the exact design and criminal classification differ significantly in detail from one legal system to another.
Criminological Aspects and Prevention
Cases of perversion of justice are exceptionally rare in practice, as the threshold for criminal liability is high and proof is difficult. The provision has a significant preventive effect through its deterrent action and makes a major contribution to safeguarding the rule of law.
Further Reading
- Fischer, Thomas: Commentary on the Criminal Code and Supplementary Laws, § 339 StGB.
- Schönke/Schröder: Commentary on the StGB, § 339 StGB.
- Tröndle/Fischer: Criminal Code and Supplementary Laws.
See also
- Unlawful Judgment
- Breach of Official Duties
- Breach of Official Duty
This article explains comprehensively the requirements, structure, and significance of judicial perversion of justice under German criminal law and provides a detailed overview of its elements, legal consequences, and distinctions.
Frequently Asked Questions
In what situations is an indictment for perversion of justice considered?
An indictment for perversion of justice typically arises in cases where a judge, other official, or arbitrator intentionally and significantly perverts the law to the benefit or detriment of a party. This must occur within the scope of judicial decision-making, i.e., when rendering judgments or comparable decisions. Mere incorrect application of the law or an error is not sufficient for indictment; decisive is the willful act with the awareness of violating the applicable law. Practical examples include deliberate misassessment of evidence, intentional succumbing to improper influences in the decision-making process, or consciously suppressing relevant legal facts. Violations in sentencing or in the selection of measures can also be relevant, provided they are based on arbitrary and deliberate violation of the law.
Who can be prosecuted for perversion of justice?
Under § 339 StGB, only public officials entrusted with adjudicatory functions can be prosecuted for perversion of justice. These are primarily professional and lay judges, lay assessors, associate members of courts, as well as arbitrators, provided they are authorized to make binding decisions in legal disputes. Notaries and other persons who, as representatives or designees, exercise judicial functions can also be included, provided they exercise judicial powers in individual cases. Civil servants, their assistants, and administrative employees are only covered if they are acting in the capacity of sovereign adjudication. Party representatives, lawyers, or ordinary administrative officials without judicial functions are generally not covered by § 339 StGB.
When does a “perversion of the law” under the Criminal Code actually occur?
A “perversion of the law” under § 339 StGB requires that the official, in the course of a judicial decision, deliberately and knowingly disregards applicable law to a party’s disadvantage in a significant and objective manner. Neither mere misuse of discretion nor a reasonable interpretation or simple legal error is sufficient. Classically, a blatant breach of law that clearly deviates from the “legally prescribed path” must be present. The benchmark is whether a reasonable, conscientious judge would never have acted in such a way. The threshold for perversion of justice is therefore high: Only in cases of deliberate, serious abuse of judicial power does criminal liability arise.
How is perversion of justice distinguished from other official misconduct or criminal offences?
Perversion of justice must be distinguished from other official misconduct or criminal acts such as breach of law by negligence, abuse of law, or simple incorrect advice. While, for example, official misconduct may already exist in the event of a breach of duty, perversion of justice requires intent regarding the realization of a gross violation of the law. Unlike other offences such as forgery of documents or obstruction of justice in office, the wrongfulness of perversion of justice is specifically geared to the deliberate and fundamental violation of judicial independence and objectivity. Perversion of justice also differs from judgments based on interpretative leeway or erroneous application of the law, since it requires a conscious act against law and statute.
How is the subjective element of intent proven in cases of perversion of justice?
The subjective element of intent requires that the perpetrator acts with knowledge and will, i.e., commits perversion of justice intentionally and recognizes the unlawfulness of their actions and at least accepts this knowingly. Mere error about the legal situation or mistaken legal application is insufficient to establish intent. The intent must relate both to the violated law and to the intended advantage or disadvantage for a party. Proof is usually established by a comprehensive assessment of the circumstances, particularly the reasoning of the decision, other aspects of the procedure, and any express statements by the perpetrator in records or hearings.
What penalties are imposed upon conviction for perversion of justice?
In the event of a conviction for perversion of justice, § 339 StGB mandatorily prescribes imprisonment of one to five years. Conviction for a lesser term or merely a fine is legally excluded. The sentence may entail permanent loss of judicial authority; furthermore, further disciplinary consequences, such as removal from service, forfeiture of pension rights, or exclusion from public service, are possible. Civil law claims such as claims for damages by affected parties may also result from a conviction.
Are there cases in which perversion of justice is not assumed, even if the outcome appears incorrect?
Even in cases where the outcome of a judicial decision appears incorrect, inappropriate, or clearly erroneous, perversion of justice is not automatically assumed. Decisive is whether there is a willful and gross deviation from the law. Justifiable decisions, questions of interpretation, or even significant legal errors are not enough if the judge has genuinely engaged with the relevant legal position. The threshold for criminal liability is only crossed when the judgment or decision is rendered in a manner wholly lacking any legal basis and is demonstrably the result of a deliberate violation of the law. Any doubt is interpreted in favor of the official; the burden of proof for intent and the seriousness of the violation lies with the prosecuting authority.
