Abstract

The Public Officer as a Criminal Law Term from the Perspective of Administrative Law

This article investigates how far the criminal law term of a public officer is contigent upon administrative law (so called “Akzessorietät” or accessory). This contingency not only results in a strict conception of the accessory, but can mean in a wider sense that the term is derivative on administrative legal categories. The Criminal Code provides a basic legal definition in its General Part sec. 11 § 1 No 2a-c. In the Special part of the Criminal Code there are a number of provisions which refer to this definition. In this respect the most important provisions are those that demand that the perpetrator be holding a public office (“Amtsdelikte” or crime of a holder of a public office). This article will not discuss what reasons justify the criminalization of such acts. As an administrative lawyer, I do not have the necessary competence to contribute to the criminal law discussion. Instead I confine myself to analyse the impact of sec.11 § 1 No 2 a-c Criminal Code on administrative law. In so far as this provision provides for a hierarchical structure: sec. 11 § 1 No 2 a, declaring a civil servant to be a public officer is strictly accessory to administrative law. This means that such qualification is solely dependent on the character of the employment as a civil servant in the sense of state law and civil servant law. In contrast, sec. 11 § 1 No 2 b is of a limited accessorial nature. The public position mentioned in that provision must only be similar to a fully-fledged position of a civil servant. Irrespective of that similarity, administrative as well as criminal law assessments have to be applied. The most serious problems of interpretation are posed by sec. 11 § 1 No 2 c Criminal Code. At first sight, the terminology of this provision is purely administrative in nature, which might postulate the application of substantive administrative categories and assessments. Upon closer investigation, it becomes evident that this last part of the public office’s definition strongly depends on criminal law principles and values.