Concept and Legal Principle of Disciplinary Arrest
Definition
Disciplinary arrest is a special form of custodial sanction in the German legal system. It differs both from the classic imprisonment according to the Criminal Code (StGB) as well as from other short-term measures such as custody under public security law. Disciplinary arrest can be imposed as a coercive measure against specific groups of persons in specially regulated cases and is subject to its own legal requirements regarding prerequisites, duration, and execution.
Historical Development
In the Federal Republic of Germany, disciplinary arrest was for a long time an instrument of so-called secondary criminal law, especially in former military criminal law, but also in disciplinary proceedings and in the Youth Courts Act (JGG). Over the years, numerous provisions have been reformed, so that today disciplinary arrest is only applied in a few specifically regulated areas. While the classical ‘breach of the peace’ arrest no longer plays a role in civil law, disciplinary arrest is mainly restricted to the field of military law.
Legal Foundations
Statutory Basis
Military Criminal Code and Military Disciplinary Code
Disciplinary arrest is primarily regulated in German law by the Military Criminal Code (WStG) and the Military Disciplinary Code (WDG) . It serves as a sanction against soldiers for violations of military discipline or for offenses of minor criminal significance within the Bundeswehr.
Youth Courts Act
Within the framework of the Youth Courts Act (JGG) , disciplinary arrest is designed as juvenile arrest, which is intended as an educational measure for juveniles and young adults. Its purpose is less punishment than discipline and education.
Imposition and Application of Disciplinary Arrest
Requirements and Addressees
Military Disciplinary Arrest
Military disciplinary arrest can be imposed on temporary-career soldiers, professional soldiers, as well as conscripts who have committed certain offenses within their service relationship. Prerequisites are typically minor breaches of duty for which milder disciplinary measures are considered insufficient.
Juvenile Arrest
In juvenile criminal law, disciplinary arrest, referred to as “juvenile arrest,” is imposed on juveniles and young adults aged between 14 and 21 years, if other educational measures are insufficient but imprisonment is not appropriate due to a lack of significant guilt.
Distinction from Imprisonment
Unlike imprisonment under the Criminal Code, disciplinary arrest primarily pursues disciplinary or educational objectives. The duration of disciplinary arrest is limited to significantly shorter periods (usually from a few days up to a maximum of six weeks). Social and criminal stigma is thus intended to be minimized as much as possible.
Execution of Disciplinary Arrest
Legal Framework
Disciplinary arrest is carried out separately from regular imprisonment in special institutions or departments. The process is less restrictive than that of regular imprisonment, but still entails restriction of freedom of movement for the entire duration.
Special Features in Military Law
Within the framework of military law, disciplinary arrest takes place in separate military detention facilities or corresponding departments of the Bundeswehr. It is conducted taking into account military conditions, whereby certain rights, such as visitation and postal rights, are restricted but maintained.
Special Features of Juvenile Arrest
Juvenile arrest is executed in juvenile detention centers geared towards the needs of young people. The goal is the lasting impact on future behavior by making consequences tangible, not permanent exclusion.
Legal Remedies and Legal Protection
There are available legal remedies against the imposition of disciplinary arrest. Those affected may, depending on the legal basis, file a complaint or an application for judicial review. In military law, especially, legal recourse to military service courts is provided.
Termination and Consequences of Disciplinary Arrest
Early Release and Expungement
Depending on the area of law, early release from disciplinary arrest is possible, particularly in cases of good behavior or for humanitarian reasons. After completion of disciplinary arrest, expungement from the register may follow to avoid a long-term burden on the affected person.
Impacts on the Criminal Record
Disciplinary arrest is not entered into the Federal Central Register, provided this is expressly provided by law (e.g., juvenile arrest under § 61 JGG). In military law, however, there may be differing regulations.
European and International Perspectives
At the international level, the institution of disciplinary arrest (or comparable short-term forms of detention) is also mainly prevalent in military law. Many European legal systems recognize similar sanctions for ensuring discipline. European human rights standards always require respect for proportionality and the protection of fundamental rights guarantees.
Summary
Der Disciplinary arrest is an independent means of sanction in the German legal system that is applied in specific areas—primarily in military and juvenile criminal law. It differs significantly from other custodial measures due to its short duration, special objectives, and particular legal and procedural features. Disciplinary arrest serves less for retribution than for discipline and education, and is subject to strict legal requirements and control mechanisms. Within the overall context of custodial measures, it constitutes an instrument tailored to special groups to avoid as much social and individual harm as possible.
Frequently Asked Questions
When is disciplinary arrest applied under German law?
Disciplinary arrest is applied in German law exclusively within the context of military criminal law. While imprisonment and youth custody are sanctions of general criminal justice, disciplinary arrest is a special form of sanction that can be imposed on soldiers of the Bundeswehr for violations of the Military Criminal Code or other specifically military offenses. Disciplinary arrest is thus primarily aimed at persons with military status and serves to maintain discipline and order within the armed forces. Its application is regulated in the Military Criminal Code (WStG) as well as supplementarily in the Military Disciplinary Regulation. It is a special provision that does not play a role in civilian criminal law and can be applied to certain criminal offenses as well as disciplinary violations.
What are the legal differences between disciplinary arrest, imprisonment, and juvenile arrest?
Disciplinary arrest differs from imprisonment and juvenile arrest in several respects. On the one hand, it concerns only soldiers of the Bundeswehr and is regulated in the Military Criminal Code, while imprisonment and juvenile arrest are sanctions under general criminal or juvenile criminal law. The institution of execution for disciplinary arrest is military in nature, meaning that execution does not take place in an ordinary prison, but in a special military detention facility. Furthermore, the main purpose of disciplinary arrest is to ensure military order and discipline, while imprisonment serves atonement and the prevention of general criminal behavior. Juvenile arrest is imposed on juveniles under the Youth Courts Act (JGG) and has an educational focus.
How long can disciplinary arrest be imposed and what forms does it take?
The duration of disciplinary arrest is governed by the Military Criminal Code. The minimum duration is one day, with a maximum duration of six weeks permitted. Only in particularly severe cases can the duration be longer, but even then, a time limit is prescribed. Disciplinary arrest can be imposed either as simple arrest (detention in a military detention facility without aggravated conditions) or as aggravated arrest, the latter involving stricter disciplinary measures and harsher conditions. The distinction depends on the gravity and nature of the service offense, other circumstances of the act, and the educational effect on the soldier.
Who decides on the imposition of disciplinary arrest and what is the procedure?
The decision to impose disciplinary arrest is made either by a military service court as part of judicial disciplinary proceedings or by the responsible disciplinary superior, if authorized. The procedure is precisely regulated: First, the facts of the case are established, after which the soldier is given the opportunity to be heard. In court proceedings, the affected person has the right to defense. After the investigations are complete and possible disciplinary measures have been considered, a written decision is issued. The person concerned may file legal remedies against this decision, such as a complaint. The procedure thus differs in both scope and available remedies from procedures in civilian criminal law.
What are the effects of disciplinary arrest on the service relationship and the status of the soldier?
The imposition of disciplinary arrest has a direct impact on the service relationship: During the duration of arrest, rights and duties such as pay, performance bonuses, and possible promotions are suspended. After serving the arrest, the convicted person may be subject to further disciplinary consequences, such as reduction of pay or demotion. This can also negatively impact future service appraisals and promotion opportunities. The penalty also remains recorded in the disciplinary register, which may result in higher penalties or additional measures in the event of repeated disciplinary offenses.
What legal protection mechanisms exist for those affected in connection with disciplinary arrest?
There are various legal protection mechanisms for soldiers on whom disciplinary arrest is imposed. This includes, in particular, the right to be heard during the proceedings, the right to access files, and the possibility of consulting legal counsel. The affected person may appeal the decision imposing disciplinary arrest—depending on the type of proceedings, this may be a complaint or, in the case of judicial disciplinary proceedings, an appeal. Furthermore, the enforcement of disciplinary arrest is subject to supervision by military and sometimes also civilian courts to ensure that all legal and constitutional requirements are met.
Can disciplinary arrest be terminated early or converted into another measure?
Early termination of disciplinary arrest is possible under strict legal conditions, such as cases of special official necessity, for health reasons, or if it is subsequently found that the sanction was disproportionate. A request for suspension or conversion must be addressed to the disciplinary superior or the military service court. Conversion to a milder disciplinary measure is only permitted in exceptional cases and after thorough review of all circumstances. The principle of proportionality and the interest in maintaining military order must always be observed.
