What is the purpose of the courts of appeal

BVerwG 2 B 76.16

  • VG Berlin - 08/28/2012 - AZ: VG 80 K 2.12 OL
  • OVG Berlin-Brandenburg - 18.08.2016 - AZ: OVG 80 D 7.12

In the administrative dispute, the 2nd Senate of the Federal Administrative Court
on August 29, 2017
by the presiding judge at the Domgörgen Federal Administrative Court
and the judges at the Federal Administrative Court Dr. from the willows
and Dr. Knowledgeable

  1. The complaint of the defendant against the non-admission of the appeal in the judgment of the Higher Administrative Court Berlin-Brandenburg of August 18, 2016 is rejected.
  2. The defendant bears the costs of the appeal proceedings.


1 1. The defendant, born in 1972, is a police chief (grade A 8) in the service of the plaintiff.

2 In May 2008, the Regional Court ... sentenced the defendant for rape in one offense with bodily harm and for bodily harm in six other cases, including an earlier criminal sentence, to a total imprisonment of one year and eight months, the execution of which was suspended on probation. According to the factual findings of the regional court, the defendant's relationship, which had existed since April 2003, had resulted in numerous attacks on his partner due to his strong jealousy and great distrust. For a long time she had not filed a criminal complaint against the defendant because she had hoped that he would get better and because she feared that - unlike the defendant as a police officer - she would not be believed. The defendant and his partner had split up several times, but continued their relationship each time. One evening in January 2005, the defendant raped his partner. After this incident, the defendant's partner separated from him. After about two weeks, however, they were a couple again before they finally separated in the following month.

3 In December 2008, the Federal Court of Justice overturned the judgment of the regional court in the legal consequences of the defendant's appeal, because the defendant's request for evidence to obtain an expert opinion to prove that he was less culpable at the time of the offense had been wrongly rejected. After obtaining a forensic-psychiatric opinion, the regional court sentenced the defendant in October 2009 to a total imprisonment of eleven months, the execution of which was suspended, on the basis of the guilty verdict, which had become legally binding, as well as the legal assessment and the factual findings of the judgment of May 2008.

4 The administrative court removed the defendant from civil servant status by means of a disciplinary judgment of August 2012. The defendant's appeal was unsuccessful. The Higher Administrative Court - like the Administrative Court before - denied the requirements for a solution to the factual findings in the criminal judgments that were assumed to be binding. This also applies to the allegation of rape and the complaint made in this respect of the procedural faulty assessment of evidence due to the failure to meet the scientific requirements for credibility reports when assessing the testimony of the defendant's former partner; these requirements did not claim to apply to the judicial assessment of evidence of a witness testimony. The binding effect of the criminal judgments also extends to the fact that the defendant committed the offenses accused of him and acted willfully and culpably. Even on the basis of the attending physician's assessment, there is no tangible indication of an incapacity to guilt, because the pathological jealousy leads exclusively to a limited ability to control while maintaining insight, even according to the assessment of this doctor. The defendant's misconduct requires removal from the civil service, taking into account all the circumstances of the individual case. On the basis of the expert assessment of the court-appointed expert, which was not shaken by the attending physician as a witness, a significantly reduced culpability cannot be assumed.

5 2. The complaint did not reveal any procedural deficiencies on which the challenged decision could be based (Section 133 (3) sentence 3 in conjunction with Section 132 (2) no. 3 VwGO).

6 a) This applies first of all to the complaint that the Higher Administrative Court failed to make its own determinations of the defendant's guilt, but rather withdrew to the binding effect of the criminal judgments. Taking into account the submission of the complaint, this complaint is to be interpreted in a legal protection-friendly manner in that it is asserted that the Higher Administrative Court should have broken away from the binding factual findings of the criminal judgments for the commission of the offense because they are not tenable. A procedural error is thus not shown in the present case.

7 According to Section 23 (1) of the Disciplinary Act of the State of Berlin of June 29, 2004 (GVBl. 2004 p. 263), last amended by the law of March 19, 2009 (GVBl. P. 70) - hereinafter: DiszG BE - are the factual findings, including a final judgment in criminal proceedings in the same official disciplinary proceedings, are binding. As far as this binding effect is sufficient, the obligation - and authority - of the disciplinary authority according to §§ 24 et seq. DiszG BE to collect the necessary evidence does not apply. The same applies to judicial disciplinary proceedings in accordance with Section 41 DiszG BE in conjunction with Section 56 Paragraph 1 Clause 1, Section 58 Paragraph 1 BDG. However, according to Section 41 DiszG BE in conjunction with Section 57 (1) sentence 2 in conjunction with Section 65 (1) BDG (for the appeal procedure), the disciplinary court must decide to re-examine those findings that are obviously incorrect.

8 The binding effect is intended to prevent different factual determinations being made on the same issue. The legislature has decided to leave the clarification of a criminal and disciplinary matter as well as the assessment of the facts and evidence primarily to the criminal courts. This is based on the assumption that factual findings made by a court on the basis of criminal proceedings with its special constitutional safeguards offer an increased guarantee of correctness. Therefore, the administrative courts have to base their decision on the factual findings of a final criminal judgment without review, as far as the binding effect is sufficient. In this respect, you are neither entitled nor obliged to make your own determinations. The binding effect only lapses if the criminal court findings are obviously incorrect (established case law, see only BVerwG, judgment of February 28, 2013 - 2 C 3.12 - BVerwGE 146, 98 Rn. 13; decision of February 25, 2016 - 2 B 1.15 - juris marginal number 8).

9 It is therefore free of legal error that the appellate court based the assessment of the final judgment on the question of whether the defendant committed the offenses against which it was charged. The fact that the appellate court did not judge these findings as obviously incorrect but as correct is incumbent on its evidence assessment. The complaint considers the result of this assessment of the evidence to be flawed, but does not show any procedural errors in the assessment of the evidence. Insofar as the complaint states that the assessment of evidence in the criminal judgment does not meet the requirements of the Federal Court of Justice for testimony psychological assessments, it fails to recognize that the judgment of July 30, 1999 - 1 StR 618/98 - (BGHSt 45, 164 <167 ff.> = juris marginal number 11 ff.) such requirements are only formulated for testimony psychological assessments - i.e. for expert reports - but do not extend to the judicial assessment of evidence of witness statements. According to the case law of the Federal Court of Justice, lower requirements apply to judicial assessment of evidence in cases in which testimony stands against testimony. The trial court must be aware that the testimony of the only witness must be subjected to a special credibility test (BGH, judgment of October 10, 2012 - 5 StR 316/12 - NStZ 2013, 57 <58> = juris marginal 16; cf. also BGH, judgment of November 17, 1998 - 1 StR 450/98 - BGHSt 44, 256 <257> = juris Rn. 18). The indications given by the complaint for the inaccuracy of the testimony of the former partner of the defendant in any case do not show any obvious inaccuracy of the actual criminal court findings based on this. It is therefore not objectionable that the appellate court did not break away from the findings of the criminal court.

10 In addition to the binding effect it assumed, the appellate court stated that even on the basis of the assessment made by the doctor treating the defendant there was no tangible indication of an incapacity, because the pathological jealousy, even according to this doctor, only contributed to a limited ability to control sustained insight.

11 b) It is also not a procedural error that the appellate court did not accept the mitigating reason of a significantly reduced culpability in its assessment decision. In particular, it is not a lack of clarification that the appellate court relied on the opinion of the court-appointed expert and did not clarify the matter further. Even after a final criminal judgment, the disciplinary courts are obliged to make the necessary factual determinations with regard to a possible reduced culpability, because the binding effect of the criminal judgment does not extend to the facts that stand in the way of the assumption of a reduced culpability or support this (BVerwG, judgment of May 29, 2008 - 2 C 59.07 - juris Rn. 29; decision of February 9, 2016 - 2 B 84.14 - Buchholz 235.2 L Disciplinary Act No. 41 Rn. 20). In the present case, however, the disciplinary court's duty to provide information is not violated.

12 Pursuant to Section 41 DiszG BE in conjunction with Section 58 (1) BDG, the court collects the necessary evidence. According to this, it has to ascertain and ascertain those facts itself and ex officio which are of importance for the proof of the official offense and - in the present case only relevant - for the assessment of the disciplinary measure. In accordance with Section 86 (1) VwGO, this results in the obligation to take those measures to clarify the facts that are necessary according to the current situation. According to Section 41 DiszG BE in conjunction with Section 65 Paragraph 1 Clause 1 BDG, this also applies to the appeal body.

13 If there are factual indications that the official's culpability was significantly reduced when the offense was committed, the factual court may not leave this aspect open in its assessment decision or assume in favor of the person concerned and immediately focus on the visibility of the obligation in question. Rather, it must clarify the question of a reduction in the civil servant's liability (BVerwG, decision of September 26, 2014 - 2 B 23.14 - Buchholz 310 § 98 VwGO No. 111 Rn. 5 with further references). The presence of a pathological impairment of the ability to control below the threshold of a mental abnormality within the meaning of §§ 20, 21 StGB can be of importance for the overall assessment (BVerwG, decisions of December 20, 2013 - 2 B 35.13 - Buchholz 235.1 § 13 BDG No. 21 Rn. 21 and from February 28, 2017 - 2 B 85.16 - juris Rn. 10).

14 If at the time of the offense the civil servant suffered from a pathological mental disorder within the meaning of Section 20 of the Criminal Code or if such a disorder cannot be ruled out according to the principle of "in dubio pro reo" and if the civil servant's liability is significantly reduced, this circumstance applies to the assessment of the gravity of the service offense with the considerable weight attached to it. In the event of a significantly reduced culpability, the maximum measure can generally no longer be pronounced (BVerwG, judgment of 25 March 2010 - 2 C 83.08 - BVerwGE 136, 173 Rn. 29 ff .; decision of 28 February 2017 - 2 B 85.16 - juris Rn 7).

15 The question of whether the reduction in the ability to control due to a pathological mental disorder was "significant" is a legal question that the administrative courts have to answer on their own responsibility (BVerwG, judgment of May 29, 2008 - 2 C 59.07 - juris Rn. 30). As a preliminary question, however, it must be clarified whether the officer suffered from an illness during the period of the offense which reduced his ability to see the injustice of the offense or to act according to this insight. Only when the mental disorder and its severity have been determined or cannot be ruled out according to the principle of "in dubio pro reo" can an assessment be made as to whether the conditions for a significantly reduced culpability exist (BVerwG, decisions of July 4, 2013 - 2 B 76.12 - Buchholz 310 § 144 VwGO No. 80 Rn. 20 and from February 28, 2017 - 2 B 85.16 - juris Rn. 7).

16 This usually requires special medical expertise. There is no specific expertise of the judge for the medical questions in question, which is not conveyed by appropriate medical expert reports (BVerwG, judgment of July 25, 2013 - 2 C 12.11 - BVerwGE 147, 244 Rn. 11 and decision of February 28, 2017 - 2 B 85.16 - juris marginal number 8).

17 The factual courts have discretion in accordance with Section 98 VwGO in conjunction with Sections 404 and 412 of the German Code of Civil Procedure with regard to an (possibly additional) expert opinion. Failure to obtain an additional expert opinion is only procedurally flawed if the present expert opinion is unable to fulfill its purpose of providing the court with the expertise required to determine the matter relevant to the decision and thereby enabling it to form the conviction necessary for the decision. If the court has already received an expert statement on a subject of evidence, it only needs to obtain a further expert opinion if the existing opinion assumes inaccurate factual conditions, contains content-related contradictions or technical deficiencies, or if there is reason to doubt the expert's expertise or impartiality (BVerwG , Judgment of February 6, 1985 - 8 C 15.84 - BVerwGE 71, 38 <45>; decisions of May 29, 2009 - 2 B 3.09 - Buchholz 235.1 § 58 BDG No. 5 marginal number 7 and of September 26, 2014 - 2 B 14.14 - Buchholz 235.1 § 57 BDG No. 5 Rn. 18 fmwN). The obligation to obtain a further expert opinion does not already follow from the fact that one of the parties considers the present expert opinion to be inadequate as a source of knowledge (BVerwG, rulings of October 15, 1985 - 9 C 3.85 - Buchholz 402.25 § 1 AsylVfG No. 38 p. 122, dated October 6, 1987 - 9 C 12.87 - Buchholz 310 § 98 VwGO No. 31 p. 2 and from October 22, 2015 - 7 C 15.13 - NVwZ 2016, 308 Rn. 47; decisions of March 27, 2013 - 10 B 34.12 - Buchholz 310 § 98 VwGO No. 109 Rn. 4 and from July 21, 2016 - 2 B 40.16 - Buchholz 235.2 L Disciplinary Act No. 46 Rn. 15).

Measured against these principles, the statement of grounds does not show that the court of appeal, when clarifying the question of the defendant's significantly reduced culpability, has the duty to clarify the facts according to Section 41 DiszG BE in conjunction with Section 58 (1) BDG, Section 86 (1) sentence 1 VwGO has violated.

19 The expert, a specialist in neurology with a focus on forensic psychiatry, who examined the defendant in criminal proceedings in 2009, found narcissistic personality traits, but denied a mental illness within the meaning of Section 20 of the Criminal Code. The court of appeal was able to rely on this. The assessment of the expert was not shaken in the oral hearing before the court of appeal by the statements of the specialist in psychosomatic medicine and psychotherapy, in whose treatment the defendant entered in 2015. The expert witness also affirmed narcissistic personality traits and denied a personality disorder. The witness also stated that the defendant's ability to steer was limited due to affect. However, the expert stuck to his assessment because pathological jealousy is a complex of symptoms, part of the personality and does not lead to the acceptance of the entry requirements of Section 20 of the Criminal Code.

20 In this situation, the appeal court did not need to gather evidence by obtaining a further expert opinion. The court of appeal denied the preliminary question for the assessment of a significantly reduced culpability, namely the presence of a mental disorder within the meaning of § 20 StGB. It was based on the statements of the judicial expert, who examined the defendant much more closely than the expert witness. Substantial objections to the validity of the expert report - for example in terms of method - were not raised in the oral hearing before the court of appeal; the expert witness only gave a different assessment. The defendant, represented by a lawyer, did not submit a request for evidence to further clarify the facts, for example to obtain a further expert opinion. In this situation, the appellate court did not have to impose further clarification of the facts.

21 c) Finally, it is not a procedural error that the appellate court did not assess the therapy started by the defendant in a way that mitigates the measures. In particular, this does not constitute a violation of the obligation to form judicial convictions without errors.

22 The circumstances relevant to assessment - and speaking for the civil servant - according to Section 13 (1) DiszG BE (as well as Section 13 BDG ​​and the corresponding provisions of the other state disciplinary laws) also include the fact that the civil servant is aware of the offense against a therapy has undergone. Even more than the fact that a therapy is being carried out, its result must be taken into account. Subsequent therapeutic measures can be taken into account in the assessment of the disciplinary measure, if a favorable future prognosis can be made. Positive developments in the person of the civil servant after completion of the official offense can also lead to the fact that the maximum measure is abandoned in favor of a milder measure. This makes it necessary to determine to what extent a therapy started by the civil servant with regard to his misconduct is successful (BVerwG, judgments of November 27, 2001 - 1 D 64.00 - juris Rn. 35 and of August 19, 2010 - 2 C 13.10 - Buchholz 235.1 § 13 BDG ​​No. 12 Rn. 29 et seq .; Order of March 22, 2016 - 2 B 43.15 - Buchholz 235.1 § 13 BDG ​​No. 34 Rn. 7).

23 The appeal judgment meets these requirements. There is no objection to the fact that the appeals court did not attribute any mitigating weight to the fact that the therapy started 7 years after the offense. Since the expert witness had stated in the oral hearing before the court of appeal that the therapy was going on and would also continue for some time, there is no objection to the fact that the court of appeal was based on the fact that there is currently a lack of a sufficiently viable factual basis for that breaches of duty of the same kind are no longer to be feared.

24 3. The decision on costs is based on Section 41 DiszG BE, Section 77 (1) BDG in conjunction with Section 154 (2) VwGO. A value in dispute for the complaint procedure does not have to be determined because the amount of the court costs results from the law regardless of the amount in dispute (cf. § 41 DiszG BE, § 78 sentence 1 BDG in conjunction with No. 10 and 62 of the schedule of fees issued as an annex to this law).