Venice Commission report on Pre-trial detention of mayors

This information was gathered by the Secretariat of the Venice Commission on the basis of replies to the questionnaire by the members of the Venice Commission.

Every effort was made to accuratly reflect the replies.

Germany

Question 1 Under which circumstance(s) can the pre-trial detention of a mayor lead to their permanent/temporary suspension? What kind of guarantees exist?

Regulation on the status of mayors in German law
The status quo of mayors is regulated in different legal acts.
The most important constitutional regulation is to be found in Article 28 of the Grundgesetz. The relevant part reads:
(1) The constitutional order in the Länder must conform to the principles of a republican, democratic and social state governed by the rule of law within the meaning of this Basic Law. In each Land, county and municipality the people shall be represented by a body chosen in general, direct, free, equal and secret elections. …
(2) Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility within the limits prescribed by the laws. Within the limits of their functions designated by a law, associations of municipalities shall also have the right of self-government in accordance with the laws.
…
(3) The Federation shall guarantee that the constitutional order of the Länder conforms to the basic rights and to the provisions of paragraphs (1) and (2) of this Article.

On this basis, most of the relevant regulations are contained in the municipal codes of the Länder; they are similar but differ in many details. Furthermore, there are specific laws on municipal election officials. At the same time, there are federal regulations such as the Code of criminal procedure and the Civil Service Status Act. Complementary regulations on the status of civil servants are contained in the respective civil service legislation of the Länder.
All in all, the regulation is very complex due to the federal structure of Germany and the specific guarantee of local self-government.

Definition of the legal status of mayors
According to German law mayors have ths legal status of communal election officials („kommunale Wahlbeamte“) and at the same time „temporary civil servants“ („Beamte auf Zeit“) for the duration of their mandate. Therefore, civil service and disciplinary laws apply to them; the regulations vary from Land to Land. Consequently, there are different disciplinary autorities („Disziplinarbehörden“) responsible for them.

Temporary suspension of mayors on the basis of pre-trial detention
As a consequence of pre-trial detention (based on § 112 Criminal Procedural Code), mayors may be subject to disciplinary measures. One possible consequence for civil servants is provisional suspension from duty („vorläufige Dienstenthebung“), which corresponds to a temporary suspension. Precondition for provisional suspension from duty is serious misconduct on the part of the civil servant. The severity of the misconduct is assessed on the basis of the foreseeable consequences. Accordingly, it must be expected that disciplinary proceedings will result in dismissal from civil service or forfeiture of pension rights. Alternatively, a provisional suspension from duty may be based on the fact that remaining in service would significantly hinder the operation of the service or the course of the investigation, and that the suspension is not disproportionate given the gravity of the matter and the expected disciplinary action.
An action for annulment (Anfechtungsklage) may be brought against this suspension from duty to an adminstrative court (§ 42 I Alt. 1 VwGO).
No Land grants mayors immunity rights similar to those enjoyed by members of parliament; mayors are subject to criminal prosecution in the same way as ‘ordinary citizens’ and other civil servants. Nevertheless, the basic hurdles and requirements for criminal proceedings apply. Pre-trial detention requires urgent suspicion ( § 112 I 1 StPO) and a reason for detention ( § 112 I 1 StPO). The reasons for detention are set out in §§ 112 II, III, 112a StPO (flight, risk of flight, risk of collusion, serious crime, risk of repetition). A limitation for minor offences is provided for in § 113 StPO. The arrest warrant is furthermore issued by a judge, not by the prosecuting authority (§ 114 I StPO).
Pre-trial detention is limited by the principle of proportionality, both in terms of its ordering ( § 112 I 2 StPO), duration ( § 120 StPO) and enforcement ( § 116 StPO). The accused's right to liberty under Art. 2 II 2 GG must always be taken into account and weighed up as a corrective measure. In addition, according to No. 54 I RiStBV, the public prosecutor's office must always examine whether the conditions for pre-trial detention are met.
The accused has the right to appeal for a review of their detention in accordance with § 117 StPO, which must be carried out by the detention judge responsible for the case (§ 126 StPO). If successful, the arrest warrant is revoked or the pre-trial detention is suspended in accordance with § 116 StPO.
Furthermore, an appeal against detention is possible under § 304 StPO. This must be lodged with the court that issued the contested decision. The court may grant relief, otherwise the court of first instance must immediately submit the appeal to the appeal court. It is therefore both a legal remedy and an appeal against pre-trial detention.

Specific guarantees due to election
The Federal Constitutional Court has elaborated the following guiding principles on the question of whether local elected civil servants (in this specific case, a mayor) should enjoy special status under civil service law due to the democratic legitimacy of their position based on election:
„Neither the principle of democracy nor the traditional principles of the professional civil service require that local elected officials be exempt from legal review on the basis of the disciplinary law applicable to all civil servants and that it be left solely to the voters to decide on their previous performance in office by voting them out or re-electing them. The legal possibility of temporarily suspending local election officials from office is therefore not objectionable under constitutional law."

„In view of the purpose of disciplinary law—to ensure efficient administration—its application to local elected officials is not objectionable. (…).“
Local elected civil servants are therefore also subject to disciplinary law under civil service law and, in the opinion of the Federal Constitutional Court, are not especially protected („keine besondere Suspendierungsschranke“).

Permanent suspension
In some Länder, e.g. North Rhine-Westphalia and in Rhineland-Palatinate, it is possible to vote the mayor out of office.
In other Länder, the highest legal supervisory authority (oberste Rechtsaufsichtsbehörde) decides on the premature termination of the mayor's term of office (vorzeitige Beendigung der Amtszeit). In Baden-Württemberg, pursuant to § 128 GO BW, it can investigate whether ‘the mayor is not fulfilling the requirements of his office and whether this is causing such significant administrative problems that it is not in the public interest for him to continue in office’. Pursuant to § 128 II GO BW, the administrative court decides on the existence of these conditions in the context of a declaratory action (Feststellungsklage).
In principle, due to the mayor's legal position, it is possible to remove him or her from civil service under state civil service laws. Only the disciplinary court is competent for removal from office; the application must be filed by the highest civil service authority (Oberste Dienstbehörde).
Furthermore, loss of eligibility for public office may be incurred under § 45 of the German Criminal Code (StGB). According to this provision, anyone sentenced to at least one year's imprisonment for a crime loses the right to hold public office or be conferred rights in public elections for a period of five years. The loss of rights and legal status under paragraphs 3 and 4 is permanent. This means that these rights and statuses will not be reinstated after the period of loss has expired or following any early reinstatement of capacity under Section 45b. However, this does not affect the possibility of regaining lost positions in accordance with general civil service and electoral law provisions.
Section 45 of the German Criminal Code (StGB) is a secondary criminal consequence that automatically applies in the event of a conviction for a crime punishable by imprisonment of at least one year. However, this also represents the legal hurdle that must be overcome before a criminal sanction can result in the loss of office. A court ruling is required. Pre-trial detention under § 112 StPO alone cannot justify such a loss of eligibility for office or permanent removal from service.

Question 2 Provided that a mayor is permanently/temporarily suspended during pre-trial detention, are there any mechanism(s) in place in your legal framework to replace them? If so, please specify whether these mechanisms are permanent or temporary and which kind of guarantees apply.

Temporary replacement
In principle, the municipal codes of the Länder always provide for a deputy mayor, although the title varies from Land to Land. This person essentially has the same rights and duties as the mayor and acts as their temporary replacement. There are specific regulation if there is no deputy mayor.
Unlike the mayor, who is directly elected, the deputy's legitimacy is based on the appointment by the elected council of the municipality. This means that the deputy is indirectly legitimised by the directly elected council. Based on the principle of self-government of the municipalities (Art. 28 para. 2 of the Constitution) the (higher) adminstrative authorities are not allowed to appoint deputy mayors.

Permanent replacement
The deputy mayor is intended as a temporary replacement only. However, it is possible that the mayor's term of office may end prematurely due to deselection, removal from office, or loss of eligibility. In this case, new elections are provided for in the municipal codes.