Presumption of office
Presumption of office refers to the unlawful performance of an act that may only be carried out by public officials.
Offense
In German law, presumption of office is regulated in Section 132 of the Criminal Code, which has the following wording:
Anyone who is unauthorized in the exercise of a public office or performs an act that may only be carried out by a public office is punishable by imprisonment for up to two years or a fine .
The offense consists of two alternative offenses, the first alternative being a sub-case of the second alternative. The public office refers to the activity as an official for the state authority , i.e. in the service of the federal government or the states. It is controversial whether lawyers also fall under public office. All that is necessary is that the function holder is clearly visible to the outside world. Generally explained functions are not sufficient.
In both alternative facts, it is possible that a legitimate public official exceeds his competencies and thereby commits an assumption of office himself. The "dealing" refers to the performance of an action that he performs in the supposed capacity. Anyone who does not legitimize his action by pretending to be a public official commits the second alternative.
In the second alternative, it is required that an act is carried out that may only be carried out by state authority, i.e. by virtue of public office .
The "unauthorized" element of the offense is not an element of illegality , but a real element of the offense that must also be covered by intent . It only depends on the actual granting of the powers. Anyone who acts legitimately at the time of the offense cannot make himself liable to prosecution, even if he anticipates or is even responsible for a later withdrawal of authority. This applies above all to cases in which the civil servant status was not effectively granted or is later destroyed with effect from the start.
Conditional intent is sufficient for both alternative facts. The attempt is not punishable, since § 132 StGB is an offense and according to § 23 StGB the attempt to commit an offense is only punishable if the law expressly provides this. This is missing here.
It is sometimes claimed that the presumption of office is a so-called handwritten crime . The prevailing opinion assumes that participation, complicity and indirect perpetration in the presumption of office are possible.
Presumption of office is not an official offense , but is directed against the authority of the state power.
The abuse of titles, professional titles and badges according to § 132a StGB is not a privilege of the offense of § 132 , but an independent offense. Both offenses can, however, coincide .
Examples
- A civilian who publicly wears a police uniform and regulates traffic is liable to prosecution.
- A soldier in the rank of corporal of the Bundeswehr who puts on the rank loops of a higher rank group and gives orders to other soldiers within a military security area is liable to prosecution; see also Captain von Köpenick .
- A GEZ employee who pretends to be a civil servant is not liable to prosecution because civil servant is not a sufficiently specific term for a public office.
- If the perpetrator leaves it to pretend to be the holder of the office without performing an official act, the offense is not fulfilled.
- In 1969 the book 13 unwanted reports by Günter Wallraff was published . It contains reports that he created using investigative journalism : for example, he slipped into the role of an alcoholic in a psychiatric hospital, a homeless person, a student looking for a room, and a potential napalm supplier for the US Army . After the book was published, he was charged with presumption of office because he had pretended to be "Ministerialrat Kröver of a civil committee of the Federal Ministry of the Interior " on the phone at various companies . The Frankfurt am Main district court acquitted him on December 9, 1969, justifying this with the public's right to information.
- Secret installation of official traffic signs by a private person.
Organizational theory
In organizational theory , one knows the congruence principle of the organization . It states that tasks , competencies , responsibility and information must be transferred to subordinate bodies congruently. This does not happen and exerts a transport authorities outside its remit skills, which he does not own, then it is called organizational "Official arrogance".
literature
- Beate Düring: Presumption of office and abuse of titles. A criminal law study on §§ 132, 132a StGB, taking into account legal history and criminological aspects. Publishing house Peter Lang 1990 (also dissertation Frankfurt am Main 1990).
- Klaus Geppert : Selected offenses against “public order”, in particular presumption of office , in: Juristic Education 1986, p. 590.
- Hartmut Oetker : Presumption of office through distribution of counterfeit official letters , in: Neue Juristische Wochenschrift 1984, p. 1602.
- Fischer: StGB, § 132.
Individual evidence
- ↑ Berliner Kammergericht of January 19, 2007, Az. (2/5) 1 Ss 111/06 (51/06); Full text
- ↑ spiegel.de December 15, 1969
- ↑ Johannes Wessels , Michael Hettinger : Criminal law special part. Volume 1: Crimes against personality and community values (= focus vol. 8, 1, law in a nutshell ). 33rd, revised edition. Müller, Heidelberg et al. 2009, ISBN 978-3-8114-9716-0 , p. 180, Rn 612.
- ↑ Cologne Higher Regional Court of September 15, 1998; Az. Ss 395/98, full text
- ↑ Norbert Bach / Carsten Brehm / Wolfgang Buchholz / Thorsten Petry, Value-Creation-Oriented Organization: Architectures - Processes - Structures , 2012, p. 250
