Official offense

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Official offense or arbitrariness refers to a criminal act of arbitrariness by an official in an authority .

Due to his special position of power and trust, the holder of a public office is obliged to carry out the sovereign and public-law tasks assigned to him impartially . He has a special duty of care and neutrality. Corresponding to this regular professional task of office holders in the sense of public and legal order, there is a special risk for actions which in the legal sense can range from negligence to vigilante justice .

Germany

Until 1943, abuse of office was used as a generic term in the Reich Criminal Code. This general individual criminal offense was changed in the Nazi state by Art. 10 letter b, final provision p. 1 of the (First) Ordinance on the Alignment of Criminal Law of the Old Reich and the Alpine and Danube Reichsgaue (Criminal Law Adjustment Ordinance) of May 29, 1943, Reichsgesetzblatt part I 1943 number 57 of June 1, 1943, pp. 339–341, repealed without replacement on June 15, 1943 by the Reich Minister of Justice Otto Georg Thierack ; there it said: "Section 339 of the Reich Criminal Code will be deleted" . Since then, abuse of office has not been re-included as a single criminal offense in the StGB.

In Germany, official offenses are those crimes that were committed by an official of the public administration when performing or failing to perform official business (on duty). The threats of punishment in Section 30 of the Criminal Code are relatively high. Public officials should perform their office impartially, honestly, decently and without personal gain, among other things. In addition, in accordance with Article 20, Paragraph 3 of the Basic Law and Article 34 of the Basic Law, they are bound by the constitutional order as well as by statute and law. The term “public official” is defined in Section 11 (1) No. 2 StGB . The term office holder also includes judges in connection with the requirements of Article 34 of the Basic Law. See OLG Düsseldorf, decision of March 5, 2009 - 23 W 99/08

In the case of a violation of individual rights or property, an official offense regularly represents a violation of official duties under civil law , which triggers liability under Section 839 of the German Civil Code ( official liability ), which must be prosecuted in the civil courts . Effective legal protection can also be obtained on a subsidiary basis (i.e. additionally) by filing an action for a declaratory judgment according to ( § 256 ZPO) based on the fundamental rights according to Article 34 sentence 3 GG against the state or the corporation.

In addition, an official offense against civil servants , judges and soldiers (but not with employees) regularly constitutes an official offense , which is often also prosecuted in a formal disciplinary procedure . As a rule, apart from provisional measures such as suspension , the final outcome of the criminal proceedings is awaited before the disciplinary proceedings are (continued) or discontinued.

Official offenses are all official offenses . There are genuine from non-genuine Office offenses distinguished:

Real official offenses

Real official offenses (also actual official offenses ) are crimes that can only be committed by misusing the position of public official:

In the case of genuine official offenses, public officials are generally a personal characteristic within the meaning of Section 28 Paragraph 1 of the Criminal Code.

In the case of the offenses of overdue taxes and reduction of benefits according to Section 353 of the Criminal Code, however, the characteristic justifying the penalty is exclusively the commission of the act to the detriment of the state. Committing them for the benefit of the state does not constitute a criminal offense.

Fake official offenses

As fake official crime offenses are called, which are generally punishable, but lead officials to a higher sentence. There are separate penal provisions for this subspecies:

In the case of these offenses, the status of a public official is a characteristic of Section 28 (2) StGB that increases the penalty .

Austria

In Austria, official offenses are colloquially referred to as offenses under the Criminal Code (StGB), which represent "criminal violations of official duties, corruption and related criminal acts".

These include:

  • Abuse of official authority ( § 302 StGB),
  • Negligent violation of personal freedom or domiciliary rights ( Section 303 StGB)
  • Bribery ( § 304 StGB)
  • Acceptance of benefits ( § 305 StGB)
  • Acceptance of benefits to influence ( § 306 StGB)
  • Bribery ( § 307 StGB), commonly known as the offense that is commonly understood to be “ corruption ”
  • Granting of benefits ( Section 307a StGB)
  • Benefit to influence ( § 307b StGB)
  • Prohibited intervention ( § 308 StGB)
  • Acceptance of gifts and bribery of employees or agents ( § 309 StGB)
  • Violation of official secrecy ( § 310 StGB)
  • Incorrect authentication and authentication in office ( § 311 StGB)
  • Torturing or neglecting a prisoner ( § 312 StGB)
  • Torture ( § 312a StGB)
  • Disappearance of a person ( § 312b StGB)
  • Criminal acts taking advantage of an official position ( § 313 StGB)

After several police convictions under some of the aforementioned paragraphs in 2006, Interior Minister Liese Prokop suggested that the criminal provisions be revised with regard to a higher minimum sentence. This is because the deliberate judgments were in the lowest possible range of punishment and so did not lead to any official consequences for the convicted. Only with an unconditional penalty of six months or more, or a conditional penalty of one year or more, does this lead to the loss of office , i.e. H. for dismissal from civil service, the loss of office can, however, be looked for to a certain extent ( Section 20 (2) (2), last sentence of the BDG). Several sides have also suggested introducing a so-called "torture paragraph" in the area of ​​official offenses, which includes torturing prisoners Putting persons under special threat of punishment by officials. The currently valid Section 312 of the Criminal Code is not sufficient for this. In Austria, u. a. the Federal Office for the Prevention of Corruption and the Fight against Corruption Official Offenses.

See also

Web links

Individual evidence

  1. ^ Reichsgesetzblatt Part I 1943 Number 57 of June 1, 1943, p. 341
  2. ↑ registration office corruption and crimes bak.gv.at, accessed 26 April 2012