Duty of obedience
The duty of obedience (also called follow-up duty ) describes the duty of a public official , a prisoner or a person otherwise subject to deprivation of liberty to obey a person who has been given sovereign authority , authority to give instructions or other right to instruct .
Employment relationships
The duty of obedience is incumbent on all employees who are in a subordinate relationship under public law. This means that they have to carry out instructions, commands or the like. The only case in which obedience can be denied is the recipient of the order's assessment that the order would commit a crime .
For federal civil servants, the follow-up obligation is regulated in Section 62 of the Federal Civil Servants Act (BBG). Civil servants and judges are, however, also subject to the remonstration obligation , i. That is, they have to raise concerns about the legality of an official order. The arrangement is nevertheless to be carried out. This does not apply if the assigned behavior violates human dignity or is punishable or unlawful and the criminal liability or administrative offense is recognizable for the civil servants ( Section 63 BBG).
If a servant refuses to obey, disciplinary proceedings can be initiated against him . Soldiers in particular must be obedient, otherwise they will commit a military crime. The duty of obedience ( § 11 Paragraph 1 SG ) is not limited to lawful orders. Illegal orders are also to be followed in principle. Only if the execution of the order would result in a criminal offense may the order not be obeyed ( Section 11 (2) SG). If the subordinate obeys the order anyway, he has to fear the corresponding criminal consequences. The prerequisite, however, is that he recognizes or that it is obvious from the circumstances known to him that he is committing a criminal offense ( Section 11 (2) sentence 2 SG).
Violations of the duty of obedience are also a breach of the service and loyalty relationship to the employer (see oath of office and vow ).
Penal system
An unconditional obligation to follow-up performance or obedience exists in principle in the penal system for prisoners to prison officers .
In contrast to civil servants (see above), prisoners do not have a fundamental margin of appreciation with regard to instructions received. In Germany this is z. B. in § 82 Prison Act (StVollzG) regulated (wording: The prisoner has to follow the orders of the prison staff, even if he feels complained by them. He may not leave an area assigned to him without permission. ).
Such misconduct does not in itself constitute a criminal offense, except in the case of the mutiny of the prisoners , but it regularly results in internal penalties . In the German Prison Act, basic measures for disobedience and the like a. Restraint , direct coercion , disciplinary measures but also solitary confinement provided, whereby the principle of proportionality must be observed. In other countries there are similar regulations and authorizations.
In earlier times, the obligation to obey was part of the constellation of the special violent relationship in which the imprisoned person was relieved of their basic rights vis-à-vis the competent state institutions , thus here the penal institutions . Today this circumstance is described with the term special legal relationship in the statement that initially all people are entitled to basic rights, but can be restricted under special conditions (see decision of the Federal Constitutional Court of 1972, BVerfGE 33, 1 ), as in the context of the penal system the case is. The unconditional duty of obedience continues unchanged even after the basic judgment, but the prison staff are now obliged to respect the basic rights of the prisoners in their instructions and thus to observe the principles of proportionality .
Individual evidence
- ↑ See also Ralf Vollmuth , Andreè Müllerschön, Friederike Müller-Csötönyi: Freedom of therapy, obligation to obey and the patient's will - an insoluble problem? In: Military Medical Monthly. Volume 57, 2013, pp. 45-49.
- ↑ BT-Drs. 18/8805
