Concept and Definition of Usurpation of Public Office
Usurpation of public office refers, in German criminal law, to the unauthorized performance of an official act or the unauthorized use of an official title. The term is regulated in the Criminal Code (StGB) under Section 132. The provision serves to protect the public’s confidence in the proper functioning and integrity of public administration and the judiciary.
Legal Basis and Statutory Elements of the Offense
Wording of Section 132 of the Criminal Code
According to Section 132 of the Criminal Code, a person is liable to prosecution
>”who, without authorization, engages in the exercise of a public office or performs an act which may only be performed by virtue of a public office, or who, without authorization, uses an official title.”
Protected Legal Interest
The provision primarily protects the public interest in ensuring that official acts are carried out exclusively by persons appointed for this purpose. This guarantees legal certainty and strengthens the public’s confidence in the lawfulness of administrative and judicial actions.
Elements of the Offense of Usurpation of Public Office
Objective Elements of the Offense
“Engaging in the Exercise of a Public Office”
This includes acting in a manner that is likely to create the impression of official activity, even though the required legitimation is lacking. This may include giving orders, collecting fees, enforcing measures, or appearing in uniform.
Performing an Official Act
An official act within the meaning of Section 132 of the Criminal Code is any act that may legally only be performed by holders of a specific public office. This typically concerns activities carried out by civil servants, judges, or other public officials.
Using an Official Title
Anyone who unlawfully uses a legally protected official title also commits usurpation of public office. Official titles are formal designations associated with a public office, such as “police officer,” “judge,” or “medical officer.”
Subjective Elements of the Offense
Intent is required. The perpetrator must know that he is not a public official and yet carries out an official act or uses an official title. Negligence is insufficient.
Distinction from Related Offenses
Usurpation of public office must be distinguished from other offenses such as “misuse of titles” (Section 132a of the Criminal Code) or “misuse of professional designations” (Section 132a of the Criminal Code). While usurpation of public office involves fraudulently creating the appearance of holding a public office, Section 132a of the Criminal Code covers the unauthorized use of titles, degrees, and badges, regardless of their relation to an office.
There are also distinctions from “fraud” (Section 263 StGB): Fraud occurs if a financial loss results from the pretended official status. Usurpation of public office may coincide with other offenses.
Penalties and Legal Consequences
Range of Punishment
Usurpation of public office is punishable by imprisonment of up to two years or a monetary fine (Section 132 of the Criminal Code). Attempted commission is not punishable, since the law only criminalizes the completed offense.
Perpetration and Participation
Anyone can, in principle, be a perpetrator; the perpetrator does not have to be a public official. Acts of participation, such as instigation or aiding and abetting, are also punishable under the general provisions of the Criminal Code.
Areas of Application and Practical Examples
Typical Cases of Application
- Unauthorized impersonation of a police officer, for example to search a dwelling
- Unauthorized issuance of official documents
- Wearing uniforms and badges bearing official symbols to appear as a public official
- Using designations such as “medical officer” without holding the respective position
Case Law and Case-by-Case Analysis
The courts require that a reasonable observer could consider the act as an exercise of public authority. The deciding factors are the external appearance and the overall behavior of the perpetrator.
Relationship to Procuring Office and Official Duties
The offense of usurpation of public office is not fulfilled if merely an internal official function is feigned that does not constitute a public office. Internal administrative titles or position designations that are not official titles do not fall under Section 132 of the Criminal Code.
Usurpation of Public Office in International Comparison
Other legal systems also contain similar provisions to protect public confidence in official acts. However, German law is characterized by its precise wording and clear delineation from other offenses.
History of the Law and Its Development
The provision of Section 132 of the Criminal Code has essentially existed since the entry into force of the Imperial Criminal Code in 1871. Over the course of legal development, the provision has repeatedly been linguistically and systematically adjusted to reflect changes in administrative structures.
Significance for Public Life and Administration
Usurpation of public office is a relevant criminal offense to prevent abuses that could undermine confidence in state institutions. Effective prosecution strengthens the authority of the state and ensures the functioning of rule-of-law structures.
Sources:
- Criminal Code (StGB), Section 132
- Commentary: Schönke/Schröder, StGB, Section 132
- Fischer, Criminal Code, Commentary, current edition
- Federal Court of Justice – Legal Database
This encyclopedia article provides a comprehensive and legally detailed explanation of the term usurpation of public office and serves as a reliable source of information on the principles, cases of application, and consequences of this offense in German law.
Frequently Asked Questions
Who qualifies as a public official under the offense of usurpation of public office?
A public official within the meaning of usurpation of public office according to German law is essentially any person who exercises tasks endowed by law with public-law powers. This includes civil servants, judges, honorary officials, as well as individuals who, in other public-law positions, perform tasks of public administration. In the context of criminal law (Section 132 of the Criminal Code), however, not only official appointment is decisive, but it is sufficient that a person outwardly appears to be a public official, for example, by using official identification or other external markers of sovereign function. The law primarily protects public confidence in the lawfulness of state action and the assurance that sovereign acts are carried out only by duly appointed persons.
Which actions fulfill the actus reus of usurpation of public office?
The actions constituting usurpation of public office are essentially twofold: first, the unauthorized performance of an act that may only be performed by virtue of a public office, and second, pretending to be the holder of a public office. Unauthorized performance of official acts means that the perpetrator carries out actions that only an official is entitled to perform, such as conducting a traffic stop, issuing official documents, or exercising sovereign powers like searches. Merely pretending to hold public office in order to deceive third parties or unlawfully gain advantages is, however, not sufficient for the criminal offense alone; rather, there must at least be an attempt to act in an official capacity. This includes the use of official insignia, uniforms, or the assertion of being an official.
Is an attempted offense punishable?
Attempted usurpation of public office is generally not punishable under German criminal law, since Section 132 of the Criminal Code describes a completed conduct offense and does not expressly penalize the attempt. Punishability therefore requires that at least objectively an act in the described sense has taken place. If a person merely intends to pose as a public official or makes preparations in this direction without actually attempting to act in an official capacity, this remains unpunished. Only in conjunction with other offenses such as forgery or fraud may behavior in the preparation phase become relevant.
What distinctions must be made between usurpation of public office and other criminal offenses?
Usurpation of public office must be carefully distinguished from other offenses such as abuse of office, fraud, misuse of titles, professional designations and badges (Section 132a of the Criminal Code), as well as forgery of documents (Section 267 of the Criminal Code). While usurpation of public office focuses on the unauthorized assumption of official duties or presenting oneself as a public official, misuse of titles, professional designations and badges pertains especially to the use of state symbols or titles without authorization, without there being actual exercise of sovereign power. Forgery of documents, on the other hand, constitutes the offense by misrepresenting documentary facts. Fraud occurs if a person is induced to suffer a financial loss by pretending to hold public office. For the classification of criminal liability, it must be evaluated in each case which aspect of the perpetrator’s conduct is paramount.
What legal consequences threaten upon conviction for usurpation of public office?
Upon conviction for usurpation of public office under Section 132 of the Criminal Code, the perpetrator faces imprisonment of up to two years or a fine. Sentencing depends on the individual circumstances, particularly the intensity of the deceptive behavior, whether actual harm or danger to third parties occurred, and the extent to which the reputation of state institutions was endangered. If the act is committed in connection with other offenses—such as fraud, coercion, or forgery—there may be concurrent or multiple offenses and the penalty will be adjusted accordingly. Repeat offenders and cases involving especially severe abuse of official functions are routinely punished more severely.
Can private companies or security services also fulfill the offense?
Private companies and especially members of private security services can, in principle, fulfill the offense of usurpation of public office if, through their appearance, clothing, insignia, or actions, they create the outward impression of possessing sovereign powers and, in this context, perform actions reserved exclusively for public officials. In particular, wearing uniform-like clothing, using official designations, or exercising sovereign coercive measures (e.g., searches, arrests) may be considered criminal usurpation of public office, provided there is no legal basis for the respective measures. What is decisive is whether the recipient of the action gets the impression of being confronted with sovereign authority.
To what extent are attempted or completed usurpations of public office prosecutable?
The prosecution of completed usurpations of public office in Germany is conducted ex officio and does not require a complaint from the victim. Investigative authorities are obliged to act upon learning of relevant suspicions. Since attempt—as already explained—is not penalized, prosecution does not apply to mere preparation or attempt. Evidence is regularly provided through witnesses, seizure of used identification or uniforms, and review of communication devices. Especially in the area of digital communication, electronic evidence is increasingly important for proving the offense, such as impersonations in online contacts.
