Term and definition of the Military Court Code
Die Military Court Code (abbreviated: MStGO) is a central body of regulations in military criminal law, which describes the organization, responsibilities, and procedures of military courts. It forms the legal basis for the judicial punishment of crimes in a military context and specifically regulates proceedings against soldiers for crimes committed during or in connection with their service. The Military Court Code is essential for due process within the armed forces and ensures that the special requirements of military and disciplinary law are observed in criminal proceedings.
Historical development and legislation
Origin and development
The necessity for a separate criminal court code for the military was recognized as early as the 19th century. Historically, different regulations existed in the German states and later in the German Empire. With the entry into force of the Courts Constitution Act (GVG) and the establishment of uniform military regulations, the Military Court Code was codified. Over the course of the 20th century, its provisions were subject to various adjustments, particularly in connection with fundamental reforms of German military law and changes to military constitution.
Current legal situation
After the suspension of conscription in Germany and the transformation of the German armed forces, the Military Court Code currently has no practical effect in the Federal Republic. Military crimes are currently adjudicated by civilian criminal courts. Nevertheless, the Military Court Code remains an important part of German law from a historical and systematic perspective.
Content and structure of the Military Court Code
Scope of regulation
The Military Court Code contains provisions concerning:
- the establishment and organization of the military courts,
- the jurisdiction of the military courts,
- the composition of the panels,
- the military criminal procedure, including investigation, main proceedings, and appeals procedures,
- legal protection and special rights of soldiers as accused or witnesses,
- special regulations for disciplinary proceedings with criminal relevance,
- rules for the execution and enforcement of judgments.
Structure
Typically, the Military Court Code is divided into several sections, each dealing specifically with the topics mentioned above. These include general provisions on scope and court locations as well as special rules on bias, exclusion, and participation of persons with military rank.
Military Courts: Organization and Jurisdiction
Judicial authority
Military courts are special courts that are exclusively responsible for proceedings against members of the armed forces in connection with service offences or crimes. Subject-matter and local jurisdiction are determined according to the place of service, command area, and gravity of the offense.
Composition of military courts
The panels regularly comprise a presiding judge with special expertise in military law and military assessors who have experience in military service. Depending on the seriousness of the offense and the court’s level, the size and composition of the court vary.
Special procedural features
Investigation proceedings
The investigatory proceedings before a military court are comparable to general criminal proceedings but contain additional regulations to protect military discipline and confidentiality. The military disciplinary superior plays a special role, especially in the initiation and conduct of the preliminary investigations.
Main proceedings
The main proceedings before military courts are characterized by strict formal requirements and a distinct process. The provisions of the Code of Criminal Procedure (StPO) generally apply but are supplemented by military-specific regulations. The presence of superiors, witness protection measures, and specific regulations on the duty of confidentiality are central to the proceedings.
Legal remedies and judicial supervision
Legal remedies are available against judgments of the military courts, including appeals and cassation proceedings. The competent higher instances are special military appellate courts with a distinct composition.
Special regulations and features
Disciplinary law connection
The Military Court Code is closely linked to military disciplinary law. Offenses committed in the military service relationship may have disciplinary and criminal judicial consequences. The connection between military criminal law and disciplinary criminal law is clearly regulated through numerous cross-references.
Protective mechanisms and rights of the accused
Accused soldiers are entitled to extensive rights in the proceedings, including:
- the right to be heard,
- access to files,
- choice of defense counsel,
- special protective regulations for minors and non-commissioned officers.
These rights ensure fair and transparent proceedings in line with the principles of the rule of law.
Relationship to other legal norms
Reference to the Code of Criminal Procedure
The Military Court Code represents a special provision of the Code of Criminal Procedure but modifies its application within the military field. Where it contains no specific provisions, the Code of Criminal Procedure applies subsidiarily.
Relationship to international legal norms
In cases of international deployments or the application of international military law, the Military Court Code only applies insofar as it is not superseded by international legal provisions or alliance obligations (such as those of NATO or the United Nations).
Significance and practical relevance
The practical relevance of the Military Court Code in today’s Germany is limited due to the current legal situation. Nevertheless, it remains an important instrument within the framework of military law, particularly in historical and systematic analysis. In other countries, such as Switzerland or various NATO member states, comparable regulations regarding military jurisdiction still retain significant practical importance.
Literature, sources, and further references
For an in-depth study of the Military Court Code, relevant commentaries, legal collections, and specialized monographs on military criminal law are recommended.
Note: This article provides an extensive overview of the subject of the Military Court Code. For further information, official legal texts, parliamentary documents, and legal scholarly literature provide a suitable basis.
Frequently asked questions
What procedural principles apply to the military criminal procedure according to the Military Court Code?
Military criminal proceedings are fundamentally subject to the principles of criminal procedure law as enshrined in general criminal proceedings, although specific regulations of the Military Court Code (MStG) also apply. Particularly noteworthy is the principle of the lawful judge: For criminal cases involving members of the Bundeswehr, the military service courts, especially the service disciplinary courts and the Federal Armed Forces Disciplinary Court, are responsible unless an ordinary criminal court has jurisdiction. The proceedings are conducted in accordance with the MStG, preserving the principles of the right to be heard, immediacy, and oral hearings. In addition, accused individuals are protected by fundamental procedural rights, such as the right to a defense, the right to translation and interpretation if they do not understand the language of proceedings, and the right to name and question witnesses. However, there are deviations regarding statutes of limitations, deadlines, and the representation of the prosecution by special prosecutors (usually military disciplinary attorneys), tailored to the specific needs of military service.
What special participants are involved in proceedings before military courts?
In addition to the usual procedural participants in general criminal proceedings—such as the accused, defense counsel, witnesses, and experts—there are special parties in military criminal proceedings. Central among these is the military disciplinary attorney, who acts as military prosecutor and, unlike the public prosecutor at civil criminal courts, is appointed specifically for disciplinary and criminal cases against soldiers. The disciplinary superior is also significantly involved, often authorized to initiate disciplinary proceedings. Furthermore, the Parliamentary Commissioner for the Armed Forces may exercise participation rights under § 13 WehrbeauftrG, for example by submitting petitions. Beyond the special role of the military disciplinary attorney, the staff council also has participation rights under soldiers’ co-determination, particularly regarding decisions on custodial measures and dismissals. All parties involved must observe the specific rules of confidentiality, discipline, and loyalty to the employer.
How is the relationship between civilian criminal law and the Military Court Code regulated?
The distinction between civilian criminal law and the Military Court Code is based on the principle that, for members of the Bundeswehr, the general provisions of the Criminal Code and the Code of Criminal Procedure apply unless more specific provisions of the Military Court Code take precedence. Substantive military criminal law principally covers offenses directly related to military service, such as disobedience or unauthorized absence, and is regulated under the Military Criminal Code (Wehrstrafgesetz). With regard to procedure, disciplinary offenses and military crimes are primarily to be dealt with by the military courts, while ordinary crimes outside the scope of service are generally assigned to ordinary courts. The Military Court Code prevails where exclusively military service-related breaches are concerned. In case of conflict, the competent court or a court order determines the proper jurisdiction.
What are the particular features of evidence gathering in military courts?
Evidence gathering differs in several respects from civilian criminal proceedings. An essential feature is the possibility of taking military confidentiality interests into account; examinations and access to documents may be limited or excluded from public view where necessary to protect military service secrets. Furthermore, access to military-relevant information or files may be subject to a special secrecy declaration by the employer, which can restrict the admissibility of certain evidence. In taking testimony, particular consideration must be given to the chain of command; statements must not be influenced by superior-subordinate relationships. Finally, the assessment of evidence must take the service context into account, and the court is obliged to consider military customs and daily routine in its evaluation.
How are legal remedies and the appellate process structured under the Military Court Code?
Legal remedies are available against judgments of the service disciplinary courts, in particular appeals and revisions, whose requirements and procedures are set out in detail in the Military Court Code and additionally in the Code of Criminal Procedure. The appellate instance is usually the next higher military service court, while in certain cases a revision to the Federal Administrative Court is possible. Legal remedies are subject to deadlines, which are generally shorter than those in civilian procedure, to ensure the timely maintenance of military discipline and operational readiness. The presiding judge is responsible for providing proper information on rights of appeal; an incorrect or omitted instruction may, in certain circumstances, result in reinstatement to the previous status. It should be noted that responsibility for individual legal remedies may vary depending on the type of offense being tried.
What special regulations apply to the enforcement of judgments by military courts?
The enforcement of military criminal judgments is carried out by special agencies of the Bundeswehr under the supervision of the Federal Minister of Defense. Measures such as detention, arrest, demotion, or dismissal from service are carried out in accordance with the Military Criminal Code (Wehrstrafgesetz) and the Military Court Code. Compliance with military order and discipline must be ensured. The facilities of the Bundeswehr established for this purpose differ in structure and administration from civilian correctional institutions. Monitoring of the observance of human rights and rule-of-law standards is the responsibility of both military authorities and external monitoring bodies, such as the Parliamentary Commissioner for the Armed Forces. Complaints against enforcement measures can be filed under the Military Complaints Regulations; there is also the right to judicial review in administrative court proceedings.
