Definition and Legal Framework of Military Courts
Military courts are special courts responsible for criminal justice in the field of military law. They deal with offenses committed by soldiers or other members of the armed forces in connection with military service, which fall under the Military Criminal Code (WStG) or supplementary regulations. The organization, jurisdiction, and procedures of military courts are regulated by various laws and ordinances.
Historical Development of Military Jurisdiction
Origins and Development up to 1945
The roots of military courts reach back to the early military ordinances of the 19th century. In the German Empire and the Weimar Republic, military courts were an integral part of military disciplinary authority. With the Enabling Act and during the course of World War II, military jurisdiction was expanded in Germany.
After 1945 and Development in the Federal Republic of Germany
After the end of World War II, military courts in Germany were initially abolished. With the introduction of the Bundeswehr in 1955 and the entry into force of the Military Criminal Code in 1957, jurisdiction over military offenses was transferred to the civilian court system. Purely military special courts, as previously existed, were not re-established in the Federal Republic of Germany.
Legal Basis of Military Courts
Military Criminal Code (WStG)
The Military Criminal Code regulates fundamental criminal provisions for soldiers of the Bundeswehr. It includes specific offenses such as disobedience (§ 19 WStG), desertion (§ 16 WStG), or unauthorized absence from the unit (§ 15 WStG).
Courts Constitution Act (GVG) and Code of Criminal Procedure (StPO)
Under current German law, only ordinary courts, in particular the criminal chambers of regional and local courts, are competent to prosecute and judge military offenses. Criminal proceedings are conducted in accordance with the Code of Criminal Procedure.
Competence in Special Situations
In cases of tension or defense, the legislature may introduce special military courts pursuant to Art. 96(2) of the Basic Law (GG). This option has not been implemented so far, so that even in exceptional situations, the ordinary courts remain competent.
Organization and Structure of Military Courts
Structure up to 1945
Military courts of the pre-war and wartime period consisted of a presiding judge, associate judges (usually officers), and typically a prosecutor representing the prosecution. They were subject to a separate military jurisdiction, which operated parallel to the civilian judiciary.
Organization Today
In the Federal Republic of Germany, military criminal law is applied entirely by civilian courts. For example, in the case of a military law matter, the competent local court or – for more serious crimes – the regional court will decide. There is no distinction from other criminal proceedings (the principle of party disposition and the right to access files apply without restriction).
Substantive Military Criminal Law and Procedural Law
Substantive Peculiarities
In addition to general military offenses, the Military Criminal Code also includes specific criminal offenses that only apply to members of the armed forces. These include, for example:
- Desertion (§ 16 WStG)
- Disobedience (§ 19 WStG)
- Mutiny (§ 27 WStG)
- Mistreatment of Subordinates (§ 34 WStG)
In many cases, these offenses are applied alongside the general provisions of the Criminal Code (StGB), especially when there are overlapping offenses.
Procedural Peculiarities
In proceedings against soldiers suspected of a military offense, the procedural rules of the Code of Criminal Procedure apply in full. Special features arise in cooperation with military superiors and units, particularly regarding summons to the main hearing or conducting investigations within the military sector.
Differences to Disciplinary Courts and Other Military Tribunals
Military courts in the strict sense are strictly separate from military disciplinary courts. While military courts impose criminal sanctions, disciplinary courts are responsible for disciplinary offenses that do not constitute criminal liability. In states with a classic military justice system, such as the United States or France, independent military courts still exist, which are responsible for both criminal and disciplinary proceedings within the armed forces.
Significance and Legal Policy Discussion
Democratic Oversight and Fundamental Rights
The transfer of military jurisdiction to the ordinary courts in Germany after 1945 was implemented for reasons of democratic oversight and to safeguard rule-of-law standards. This regulation serves to protect fundamental rights and prevents the creation of special laws for soldiers outside the general criminal justice system.
Possibility of Reintroducing Special Courts
The Basic Law allows for the introduction of special military courts under conditions of defense or tension. To date, the legislature has not made use of this option.
International Aspects and Comparison
In many countries, specially established military courts still exist that rule on violations of the respective national military criminal code. Their structure and jurisdiction often differ significantly from the civilian judiciary. In Germany, however, all military criminal proceedings have been entrusted to the ordinary courts according to the principle of the unity of justice.
Literature
- Kahl, Wolfgang: Wehrstrafrecht, Commentary. Munich 2019.
- Oehler, Günter: Das Wehrstrafgesetz. Commentary on the WStG and VStGB, Heidelberg 2018.
- Siegmann, Friedrich: The Military Judiciary in the Federal Republic of Germany. In: Journal for Military Law, 2022.
Conclusion
Military courts are special judicial bodies for the prosecution of military offenses. While historically they were independent courts with their own organization, military criminal proceedings in Germany today take place exclusively before ordinary courts. The legal basis includes the Military Criminal Code, the Criminal Code, and procedural criminal provisions. The handling in Germany contrasts with other countries, where independent military courts still exist. Thus, military courts are a central element in the control of military offenses within a democratic rule-of-law order.
Frequently Asked Questions
What are the jurisdictions of military courts?
Military courts have jurisdiction only over offenses committed by soldiers of the Bundeswehr in service or in connection with service, according to the Military Criminal Code (WStG) or Criminal Code (StGB). They deal particularly with offenses such as refusal to obey, desertion, unauthorized absence, mistreatment of subordinates, as well as other specific crimes related to military order. In addition, military courts may also handle general criminal offenses if they are committed in the line of duty or in connection with military orders. They do not have jurisdiction over purely disciplinary offenses, which are dealt with by disciplinary superiors or military disciplinary attorneys.
How are proceedings before military courts regulated?
Proceedings before military courts generally follow the provisions of the Code of Criminal Procedure (StPO) and the Courts Constitution Act (GVG), supplemented by specific regulations in the Military Criminal Code and the Military Criminal Procedure Act (WStrVG). The principles of a fair and lawful trial apply, such as the presumption of innocence, the right to defense, and public hearings, as far as official confidentiality interests are not affected. Special rules apply when matters of state or official security are at stake, for example, in relation to the exclusion of the public or the involvement of military experts.
Who can be a defendant in military criminal proceedings?
Only persons who were soldiers of the Bundeswehr at the time of the alleged offense, including military service members and reservists during a military exercise or a military service relationship, can be defendants before military courts. Civilian employees or civilian staff of the Bundeswehr cannot be tried before military courts, as any offenses by them fall under the ordinary courts. However, jurisdiction can continue even after the end of military service if the offense was committed during military service.
What remedies are available against judgments of military courts?
Against first-instance judgments of military courts, the defendant, the public prosecutor, and, in certain cases, joint plaintiffs may appeal or file for revision. An appeal against decisions of a disciplinary service court must be filed with the next higher instance. The Federal Court of Justice may serve as the court of revision, especially if fundamental legal questions or misapplication of laws are involved. The exact requirements and deadlines are set out in the Code of Criminal Procedure and specific rules for military criminal proceedings.
Are there differences between military courts and ordinary criminal courts?
Military courts differ from ordinary criminal courts mainly in terms of their personnel composition and their specific jurisdiction for military offenses. The panels of military courts usually consist of legally trained judges as well as military associate members familiar with military service. The aim is to satisfy both the need for judicial independence and the understanding of military specifics. Otherwise, essentially the same rule-of-law principles apply as before civilian courts.
Are proceedings before military courts public?
The general rule is that proceedings before military courts are public. However, there are exceptions, particularly when military security interests or classified matters are involved. In such cases, the military court may exclude the public in whole or in part in order to protect the confidentiality of military information, operational readiness, or the lives of soldiers. The decision to exclude the public is always subject to judicial balancing between the requirement of transparency and the protection of overriding interests.
How does a conviction before a military court affect service relationships?
A final conviction by a military court can have significant consequences for the ongoing or future service relationship of a soldier. In addition to criminal sanctions, disciplinary measures often threaten, up to and including dismissal from service or loss of rank and pension entitlements. The exact consequence depends on the nature and severity of the offense, as well as accompanying service regulations. Reinstatement or transfer to other roles may also be permanently prevented by a conviction.
