Disciplinary law

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The disciplinary law punishes the civil service official misconduct or malfeasance of officials , judges and soldiers . Employees are not subject to any disciplinary law. Violations of their employment contract will be punished under labor law . Disciplinary measures under private law can be imposed on them.

General

The substantive disciplinary law deals with the service offenses, the possible disciplinary measures and the provisional measures. A service offense is a culpable violation of a (service) duty , service offenses can be cleared up in a disciplinary procedure and concluded with the imposition of a disciplinary measure. The formal disciplinary law deals with the structure, responsibilities and powers of the charge of the procedure site, the court system and the process sequence.

Legal issues

Disciplinary law is part of service law . Disciplinary law primarily applies to persons who are employed under public law . These are civil servants , judges , soldiers , but also those doing community service . Moreover, a disciplinary law subject prisoners , detainee in preventive detention and persons in a service relationship with the Evangelical Church .

Disciplinary law is not a criminal law whose primary purpose is retaliation for the injustice committed, as well as prevention . Rather, the disciplinary law disciplinary measure serves to admonish compliance with (service) duties or, as a maximum measure, to remove a person from the employment relationship. The core of the substantive disciplinary law is the legal term of service offense contained in the Federal Civil Service Act, the civil service laws of the federal states and the Soldiers Act (SG) , which is understood to mean any culpable violation of the official duties incumbent on the civil servant or soldier as a soldier. The content of formal disciplinary law is the regulation of the hierarchy , jurisdiction and powers of the bodies provided for in disciplinary law .

According to § 77 BBG , an official offense exists if civil servants culpably violate their duties . In the area of ​​public administration, disciplinary law serves to maintain the functionality and integrity of civil servant law . It regulates the question under which conditions civil servants violate their official duties and therefore commit an official offense, how this is to be cleared up and how to react to it.

In the disciplinary law of civil servants, the fine can be imposed as a fine in accordance with Section 7 BDG up to the amount of the monthly salary . This applies accordingly to federal judges in accordance with Section 46 of the German Judges Act . With regard to civil servants and judges in the service of the federal states and other corporations, state laws with the same content apply as far as possible . In the case of soldiers , the comparable measure under Section 24 of the Military Disciplinary Code is referred to as a “disciplinary fine”.

Officials and soldiers

If civil servants or soldiers culpably violate their duties, they commit an official offense ( Section 77 Paragraph 1 BBG or Section 23 SG), which can have disciplinary consequences. The specific obligations result from the federal and state civil servant law and the soldiers law. If civil servants or soldiers commit a criminal offense, there may be a risk of disciplinary measures in addition to criminal prosecution. This does not violate the prohibition of double punishment from Art. 103 III GG, since disciplinary law and criminal law have different intentions. Disciplinary proceedings may be suspended during the criminal proceedings. At the latest when the criminal proceedings have been finalized, the employer must continue the official disciplinary proceedings against civil servants or the judicial disciplinary proceedings against soldiers ( Section 22 BDG or Section 83 Military Disciplinary Code ).

The proceedings can be carried out as official (for civil servants) or simple (for soldiers) or judicial disciplinary proceedings . The superiors or disciplinary superiors are responsible for the simple or official disciplinary proceedings .

If there are sufficient factual indications (in the case of civil servants) or if facts become known (in the case of soldiers) that justify the suspicion of an official offense, the service or disciplinary superior is obliged to initiate disciplinary proceedings ( Section 17 BDG or Section 32 Paragraph 1 SG). The civil servant or soldier must be informed immediately about the initiation of disciplinary proceedings in accordance with Section 20 BDG or Section 32 Paragraph 4 SG as soon as this is possible without endangering the clarification of the matter .

Types of disciplinary action

In Germany the formal disciplinary law for federal civil servants is regulated in the BDG, for soldiers in the Military Disciplinary Code (WDO). The federal states each have their own disciplinary laws, which are largely comparable. According to § 5 BDG there are the following types of disciplinary measures for federal officials :

The following can only be imposed on retired officials :

  • Reduction of the pension or
  • Withdrawal of retirement pension.

The catalog begins with the weakest species and ends with the existence-threatening removal from the civil service. Officials on probation and officials on revocation can only be issued with reprimands and fines imposed ( Section 5 (3) BDG).

In the case of soldiers, simple disciplinary measures in accordance with Section 22 (1) WDO are:

  • Reference,
  • strict reprimand,
  • Disciplinary fine,
  • Exit restriction and
  • Disciplinary arrest.

Disciplinary arrest and exit restrictions can be imposed side by side, as well as, in the event of an unauthorized absence of the soldier for more than one day, exit restrictions and disciplinary fines or disciplinary arrests and disciplinary fines. ( Section 22 (2) WDO)

Judicial disciplinary measures, which can only be taken against professional soldiers and soldiers for a limited period , are, in accordance with Section 58 Paragraph 1 WDO:

  • Reduction of salaries,
  • Ban on carriage,
  • Reduction in grade,
  • Downgrading and
  • Removal from employment.

Judicial disciplinary measures against retired soldiers are according to § 58 Abs. 2 WDO:

  • Reduction of the pension,
  • Reduction in grade,
  • Downgrading and
  • Withdrawal of retirement pension.

The decision on a disciplinary measure is made in the case of civil servants in accordance with Section 13 BDG at the discretion of the public . In the case of civil servants, the disciplinary measure is to be measured according to the gravity of the official offense and the personality of the civil servant is to be adequately taken into account. It should also be taken into account to what extent the civil servant has impaired the trust of the employer or the general public. In the case of soldiers, according to Section 38 (1) WDO, the nature and severity of the service offense and its effects, the degree of guilt, personality, previous leadership and the motivation for the type and degree of disciplinary action must be taken into account.

Judicial disciplinary proceedings

In the case of civil servants, the imposition of disciplinary measures of demotion, removal from civil servant status or the withdrawal of the pension is reserved to the administrative judiciary ( Section 34 BDG), which is also responsible for legal protection against the decisions of the superiors. The administrative courts have special chambers for disciplinary matters, and the higher administrative courts are called senates. The chambers and senates decide on the composition of three professional judges and two civil servant assessors as honorary judges , if not a single judge decides. One of the officers ' assessors should belong to the branch and category of civil servant against whom the disciplinary proceedings are directed. In the last instance, the Federal Administrative Court decides without a civil servant assessor.

In the case of soldiers, judicial disciplinary measures are decided by the troop service courts by judgment on a reduction in pay, a ban on transport, a reduction in the salary group, a downgrade and removal from employment . ( § 58 ff. SG) These are manned by a professional judge and two honorary judges (soldiers). The courts of appeal are the military service senates established at the Federal Administrative Court, which are made up exclusively of professional judges.

Judges and prosecutors

For judges apply to § 63 1 para. DRiG the provisions of BDG mutatis mutandis. In the federal and state governments, service courts are responsible as professional courts .

Public prosecutors are civil servants, but for them the special regulation applies that, in accordance with Section 122 (4) DRiG, the service courts decide for judges in judicial disciplinary proceedings. The official disciplinary procedure is based on the provisions of the other officials of the respective employer.

Civil Servant

The official offenses committed by those doing community service are punished in a special disciplinary procedure according to § 58 ff. Civil Service Act (ZDG). The regulations essentially correspond to those of the disciplinary law for federal civil servants and soldiers with a few deviations that take into account the specifics of community service. If official or judicial measures have already been taken, disciplinary measures may only be imposed if the order within the community service requires this.

According to § 59 ZDG, only the following disciplinary measures come into consideration:

  • Reference,
  • Exit restriction (at least one day and a maximum of 30 days; only for community service providers who live in service accommodation),
  • Fine (up to four months' income),
  • Not being granted a higher pay group or
  • Downgrading to a lower pay group.

Fines and exit restrictions can also be imposed side by side.

Are disciplinary superiors for community service providers

  • the President of the Federal Office for Civilian Service and officials of the Federal Office appointed by him for all disciplinary measures,
  • Heads appointed by the President of the Federal Office and their deputies of departments, schools and regional representatives of the Federal Office for reprimands, exit restrictions of up to ten days and fines up to the amount of one monthly salary.

Appeals against disciplinary measures taken by the latter can be lodged with the President of the Federal Office. If he rejects this or changes the measure in the opinion of the community service provider inadequately, an action can be brought before the administrative court. The competent federal disciplinary body is responsible for the lawsuit. Instead of the civil servant provided for in the BDG as an assessor, there is a civilian service provider. If a disciplinary measure is imposed by the President or an authorized official of the Federal Office, an action can be taken against this decision immediately.

In addition, the President can cancel disciplinary action at any time; however, a tightening is only permitted within six months after the first ruling has been issued. In addition, disciplinary measures must be lifted if, in criminal or administrative fine proceedings, a final decision is made on the same matter and this deviates from the disciplinary order.

Churches

The Protestant churches have their own ecclesiastical disciplinary law. In some cases, this right has been put to use after 1990 against pastors who with the Stasi had worked in the GDR, as in the impeachment of the Thuringian pastor Peter Franz .

The function that the disciplinary law has in Protestant canon law is largely fulfilled in relation to Catholic clergy through the Codex Iuris Canonici (CIC). Church punishments are to be distinguished from the disciplinary measures of transfer and impeachment that are possible afterwards .

Prisoners

Outside of service law, disciplinary measures can also be taken against prisoners . The disciplinary law of prisoners is regulated nationwide in the StVollzG . Since the legislative competence for pre- trial detention falls to the federal states according to the Basic Law , the disciplinary law for prisoners on remand can be found in the respective state pretrial detention laws . Prisoners in youth prisons are also subject to disciplinary law regulated in the state youth prison laws.

According to § 102 StVollzG, a disciplinary measure can be imposed on a prisoner if the prisoner culpably violates his duties. According to Section 82, Paragraph 1, Sentence 2 of the StVollzG, a prisoner may not disturb the orderly coexistence through his behavior towards prison staff, fellow prisoners or other people. If he culpably violates this obligation, the prison director can order disciplinary measures against him (§ 102 StVollzG). Which disciplinary measures are permissible can be found in Section 103 (1) StVollzG. Several disciplinary measures can be combined with one another (Section 103 (3) StVollzG). Within this legally stipulated framework, when exercising the discretion granted to the establishment, it must be taken into account that disciplinary measures are penal-like sanctions for which the Article 2 Paragraph 1 and Article 1 Paragraph 1 GG i. V. with the rule of law principle ( Art. 20 Abs. 3 GG) resulting guilt principle applies. Therefore, no disciplinary measures may be ordered that exceed the guilt of the prisoner. In this respect, the principle of guilt coincides with the constitutional principle of the prohibition of excess in terms of its effects, which limit the punishment and similar penalties . When ordering a disciplinary measure, the prison may also take special and general preventive aspects into account. The discretion of the prison director is limited (only) to the question of whether and, if so, which disciplinary measures should be imposed because of an established breach of duty. The requirements relating to the determination of whether a breach of duty has actually taken place, on the other hand, are of a legal nature. This finding can be fully verified by a court.

Due to disciplinary measures according to §§ 102 ff. StVollzG, u. a. the culpable violation of the behavioral obligations standardized in § 82 StVollzG are punished. Even if disciplinary measures have a repressive effect and are therefore governed by the principle of guilt, their real purpose lies in securing the prerequisites for enforcement aimed at the goals of Section 2 of the StVollzG. As laws restricting fundamental rights, Sections 82, 102 ff. StVollzG must for their part be interpreted and applied in the light of the fundamental rights they restrict, so that their significance can also be applied at the level of application of the law.

The prisoner can take legal action against a disciplinary measure in accordance with § § 109 ff. StVollzG. In particular, he can request a declaration that a disciplinary measure that has already been carried out was unlawful ( Section 115 (3) of the StVollzG). Is it possible to reverse a disciplinary measure or is it a disciplinary measure that is not enforced, e.g. If, for example, a mere warning is given, the court cancels the administrative act, i.e. the disciplinary order (Section 115, Paragraph 4, Sentence 1, StVollzG).

The professional judicial review of measures encroaching on fundamental rights can only ensure compliance with the applicable law as required by the rule of law and the effective protection of the substantive rights affected if it is based on adequate clarification of the respective facts. This also applies to the judicial review of intervening measures in the penal system. The rule of law, the materially affected fundamental rights and the fundamental right from Article 19, Paragraph 4 of the Basic Law are violated if measures that encroach fundamental rights in the penal system are confirmed as lawful by the courts without sufficient clarification of the facts.

A reliable determination of the facts on which the application of the law is based is of particular importance in the judicial review of disciplinary measures. Disciplinary measures are penal sanctions for which the principle of guilt derived from Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law and the rule of law (Article 20, Paragraph 3 of the Basic Law) applies. This principle prohibits punishing or punishing an act without the guilt of the perpetrator. The imposition of a disciplinary measure on the basis of a mere suspicion therefore constitutes a violation of the principle of guilt. Disciplinary measures may only be ordered if it has been unequivocally clarified whether a culpable breach of duty has actually occurred. Sufficient factual findings are also required for the necessary examination of whether the sanctions imposed are overall appropriate to the guilt and also otherwise proportionate.

Preventive detention

Disciplinary proceedings can also be carried out against persons in preventive detention - who are not prisoners - and disciplinary measures can be imposed and carried out. The legal provisions can be found in this - if the respective federal state has issued its own preventive detention law - otherwise in the StVollzG.

International

Austria

In Austria , the disciplinary law of federal civil servants is regulated in the Civil Service Law Act ( §§ 91 et seq.BDG 1979 ), that of judges and public prosecutors in the Judge and Public Prosecutor's Service Act ( §§ 101 et seq. RStDG ), that of soldiers in the Army Disciplinary Law ( HDG 2002 ). . Furthermore, there is also disciplinary law anchored in the respective state fire brigade laws for the fire brigades . The disciplinary law for ÖBB employees is contained in the "General Terms and Conditions for Service Contracts at the Austrian Federal Railways (AVB)". The provisions of these disciplinary regulations apply to employees of the Austrian Federal Railways , to whose employment the General Terms and Conditions for Service Contracts at the Austrian Federal Railways (AVB) apply - i.e. also to ASVG employees - with the exception of young people. Section 5 ("Contractual Penalties") sets out the provisions of the 1996 Disciplinary Code.

Switzerland

In Switzerland , the Federal Personnel Ordinance ( Art. 98 et seq. FOPI ) or the Personnel Ordinance of the Federal Supreme Court ( Art. 60 et seq. PVBger ) and the Military Criminal Law ( Art. 180 et seq. ) Apply to breaches of labor law obligations by federal staff . MStG ). A disciplinary error is committed unless the behavior is punishable as a crime, misdemeanor or transgression, whoever violates his official duties or disrupts the operation of the service, causes public nuisance or violates the basic rules of decency or engages in gross mischief.

See also

literature

  • Church in the Fall. As a pastor in Kapellendorf, series: White books Unfrieden in Deutschland Volume 4 , published Society for the Protection of Citizenship and Human Dignity eV, 1995, ISBN 3-929994-42-9 .
  • Ernst Uhl: The case of Peter Franz. A review on the subject of the Protestant Church and GDR State Security , Bremen 2003.
  • Michael Ploenus: The case of the "red Franz" von Kapellendorf. Or: the continuity of enemy images , in: Gerbergasse 18 , 4-2006, p. 15.
  • Hans-Joachim Bauschke and Achim Weber: Federal Disciplinary Act - Comment. Stuttgart 2003.
  • Dieter Hummel, Daniel Köhler, Dietrich Mayer: BDG Federal Disciplinary Law and Material Disciplinary Law. Commentary for practice . Bund-Verlag, Frankfurt, 5th edition 2012, ISBN 978-3-7663-6120-2 .
  • Ernst-Albrecht Schwandt: (Claussen / Benneke / Schwandt) The Disciplinary Procedure - Guide 6th edition 2010, Heymanns, ISBN 978-3-452-27232-4 .
  • Fritjof Wagner: civil service law. 9th edition 2005 § 15, CF Müller Verlag
  • Franz Werner Gansen: Disciplinary Law in the Federation and the States - Comment. R. v. Decker, ISBN 978-3-7685-3043-9 .

Web links

Individual evidence

  1. ↑ Maximilian Baßlsperger, Introduction to the new civil service law , 2009, p. 236
  2. ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 328
  3. ↑ DG - EKD , DiszG (PDF; 176 kB of the VELKD )
  4. ↑ Philipp J. Graf: The criminal law of the church, public security 9-10 / 10, pp. 97-99
  5. ↑ BVerfG, NJW 1995, 1016
  6. ↑ OLG Stuttgart, NStZ-RR 2012, 29 f.
  7. ↑ BVerfG, decision of February 12, 2001, Az .: 2 BvR 1709/02
  8. ↑ BVerfG NJW 1995, 1016
  9. ↑ a b BVerfG, decision of October 24, 2006, Az .: 2 BvR 30/06
  10. ↑ Zl. GS-442-1-1996 ( Disciplinary Code of the Railway )