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Working as a doctor in Germany with a criminal conviction


14.12.2013 20:20 |
Preis: ***,00 € |

Arbeitsrecht


Beantwortet von

Rechtsanwalt Carsten Neumann



This question is written on behalf of "Jeff", an English national:

Jeff, in 2008 at the age of 19, was convicted of sexual assault against a minor as well as possession of indecent images of children. He received a community sentence of 3 years. He was also given an ban from working with children by the courts. As an automatic result of his conviction he was also barred from working with vulnerable adults. Both these orders are indefinite. This ban is given by an administrative body. Under English law these bans do not have extra-judiciary effect.

After his community order he moved to Spain. He is planning to train in medicine through a 6 year degree. After seeking legal advice in Spain he found this to be legal. However, he would ideally like to move to Germany after his medical degree.

Would his sentence prohibit him from working as a doctor in Germany?
Eingrenzung vom Fragesteller
14.12.2013 | 20:32

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Dear consulter,

many thanks for your question. My answer depends on the facts of the case which you have disclosed to me.

In Germany, citizens from member states of the European Union (EU), to which subjects of Great Britain belong, have the same access to professional pratice as doctor as German citizens. To work as a doctor in Germany, an approbation is needed. The legal requisites for an approbation are regulated in § 39 Approbations-Ordnung (AppO) in Germany. § 39 sec. 3 AppO legally enables the German authorities to ask for such informations about foreign applicants of approbation at their homeland authorities prohibiting them from working as a doctor in Germany. These can be all circumstances being relevant for practice of a medical profession; it is not limited to verdicts and punishments. Informations about sexual assaults against children and/or minors being officially registered during the last ten years are asked in any case.

§ 3 sec. 1 no. 2 Bundes-Ärzteordnung (BÄO) commands that an application of approbation shall be rejected if the applicant has committed a behaviour from which results that he (or she) is unworthy ("unwürdig") or unreliable ("unzuverlässig") for medical profession.

This also includes sexual abuse or assaults of children.

So his sentence can prohibit Jeff from working as a doctor in Germany. When a longer period f time has passed (10 years), former sentences can become insignificant.

I hope that I could help you and ask for excuse if my use of English language should be defective.

Yours sincerely,

Carsten Neumann
Rechtsanwalt

Freiberger Str. 39
01067 Dresden

T.: 0351/86791355
F.:0351/33257002
Mail: info@advoc-neumann.de
Web: www.advoc-neumann.de

Nachfrage vom Fragesteller 15.12.2013 | 13:53

Thank you for your reply.

" When a longer period f time has passed (10 years), former sentences can become insignificant"

This is most relevant to the case. As stated it will be more than 10 years when he moves to Germany since he was convicted of the offence.

I understand that it is illegal in Germany to discriminate based on a deleted conviction but could the banning order from working with vulnerable people be used as a reason for prohibiting practice as a doctor in Germany? It would seem odd to be being that the conviction itself couldn't be taken into consideration.

Antwort auf die Nachfrage vom Anwalt 15.12.2013 | 17:46

Dear Sir,

in Germany, there is a central federal register (called "Bundeszentralregister")into which all sentences and also all prohibitions to exercise a certain profession ("Berufsverbot") - imposed by a court or an administrative authority - are registered. Banning from working with vulnerable people is a kind of (particular) professional prohibiton that would also be registered if imposed in Germany (§ 10 sec 2 Nr. 2 BZRG).

After a certain period of time, a registration must be erased - the length of the period depends on the severeness of the punishment or the moment when the professional prohibition or banning is over, respectively abolished by the administrative authority. After a registration has been erased, it must not longer be held against the affected person, and he (or she) is no longer obliged to inform the authorities about the former registration(s) when applying for approbation as doctor.

In Germany, the period of erasion for sentences of sexual assaults against children is ten years if the offender was sentenced as a juvenile. Concerning to defendants between age 18 - 21, it depends on the personal matureness, whether a defendant will be sentenced as a juvenile or as an adult. The period of erasion is twenty years for sentences of sexual offenses committed by adults (over age 21, or age 18 - 21 in special case). Normally, criminal courts sentence defendants between 18 - 21 as juveniles. (Defendants, who commit a crime until 18, are always sentenced as juveniles.)

(An erasion does not take place if a new registration for another sentence is caused during the period of time for the first registration. In this case, the expiration of the period of time for the later registration is considerable for the first one, too.)

So the sentence of three years because of sexual assault cannot be held against Jeff ten years after the date of conviction in German law. In Germany, a British subject can no longer be banned from practizing a profession than a German citizen could.

The problem in the present case is that the administrative ban from working with vulnerable people is "indefinite" in England as you mentioned above. The banning cannot be ignored of the approbation authorities, if the English authorities inform them about it. On the other hand, there is no automatic indfinite lifetime ban in Germany if a person is once convicted. The German authority will investigate if Jeff still needs to be banned from working with vulnerabe people. It might be that the approbation is granted under restricted conditions.

Kind regards,

Carsten Neumann
Rechtsanwalt



Ergänzung vom Anwalt 14.12.2013 | 20:32

correction:

§ 176 Strafgesetzbuch (StGB) is dealing with sexual abuse of children. I must correct me: If the juvenile punishment for sexual child abuse is more than one year of prison, the period is also twenty years (see § 46 sec. 1 no. 3: "...oder Jugendstrafe von mehr als einem Jahr".). Only for non-sexual offenses, the period for juvenile punishment of more than 1 year of prison is 10 years. For juvenile punishment under 1 year, the period ist five years, both for sexual and non-sexual offenses (§ 46 sec. 1 no. 1 lit. c).
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