Fundamentals of Military Disciplinary Law
Military disciplinary law is an independent area of German disciplinary law and regulates the disciplinary responsibility and disciplinary proceedings for servicewomen and servicemen of the Bundeswehr. Its purpose is to ensure military order, discipline, and operational capability of the armed forces and encompasses all legal provisions governing conduct and the sanctioning of breaches of duty within the Bundeswehr.
Legal Foundations of Military Disciplinary Law
Military disciplinary law is primarily codified in the Military Disciplinary Code (WDO). Supplementary laws include the Soldiers Act (SG) as well as the Basic Law (GG) in Articles 17a and 87a. Other relevant regulations are the Military Complaints Regulations (WBO), the Soldiers’ Career Regulations (SLV), and, in part, the Federal Disciplinary Law (BDG), as far as civil servants in the defense sector are concerned.
Aims and Functions of Military Disciplinary Law
The main objectives of military disciplinary law are:
- Maintaining and ensuring military discipline
- Preserving the operational capability of the Bundeswehr as a parliamentary army
- Protection of soldiers’ duties and legal certainty within the armed forces
- Corrective and preventive measure in case of breaches of official duties
Scope of Application of Military Disciplinary Law
Military disciplinary law applies to all servicewomen and servicemen of the Bundeswehr, regardless of their career path, rank, or station. It applies both domestically and abroad, as well as to temporary-career soldiers, professional soldiers, and voluntary military service members, during the period of the military service relationship.
Basic Terms and Disciplinary Superiors
Service Offenses
A service offense within the meaning of military disciplinary law occurs when soldiers culpably violate their official duties. Duties include, in particular, the duty of obedience, comradery, loyalty, confidentiality, as well as the prohibition of misconduct in the official and private sphere, if such behavior negatively affects military service.
Disciplinary Superiors and Their Powers
Disciplinary superiors are military superiors with hierarchical authority, who are vested with powers to sanction service offenses. Disciplinary measures that may be imposed by disciplinary superiors include, among others, admonition, restriction of leave, disciplinary fine, and detention.
Disciplinary Measures and Procedures
Types of Disciplinary Measures
Military disciplinary law distinguishes between simple disciplinary measures and judicial disciplinary measures:
Simple Disciplinary Measures
- Admonition
- Disciplinary fine
- Restriction of leave
- Detention (maximum 21 days)
Judicial Disciplinary Measures
- Demotion
- Reduction in rank
- Dismissal from service
- Loss of remuneration
The Disciplinary Procedure
Initiation of Disciplinary Proceedings
A disciplinary procedure generally starts with the formal initiation by the disciplinary superior after determining suspicion of a service offense. The investigation may be taken over by the military disciplinary attorney. The procedure is shaped by the principles of the right to a fair hearing and fact-finding.
Course of Disciplinary Proceedings
- Preliminary investigations: Suspicion of service offense, collection of initial facts
- Formal initiation: Notification to the person concerned, hearing
- Investigation by the disciplinary superior or legal counsel for military discipline
- Conclusion of the investigation procedure: Decision on discontinuation or filing of disciplinary charges
- Disciplinary Court Proceedings: Submission to military service courts in serious cases of service offenses
- Decision: Judgment on disciplinary measure or discontinuation of the proceedings
Legal Remedies and Legal Recourse
Decisions of disciplinary superiors may be challenged by lodging a complaint under the Military Complaints Regulations. Judgments of the military service courts may be appealed to the next instance, up to the Federal Administrative Court (BVerwG) as military service senate.
Involved Institutions and Organizations
Military Service Courts
The military service courts are specialized courts for disciplinary proceedings within the Bundeswehr. There are the Military Service Courts North and South; the highest instance is the Military Service Senate at the Federal Administrative Court.
Disciplinary Superiors
Disciplinary superiors are soldiers of certain ranks and positions who, due to their position, possess disciplinary authority. They must ensure that disciplinary proceedings are conducted properly and in accordance with the rule of law.
Relationship to Other Areas of Law
Distinction from General Disciplinary Law
Military disciplinary law is specifically tailored to the needs of military service and differs in key respects from disciplinary law for civil servants, particularly in the types of admissible measures (e.g., military detention) and the special structure of service relationships.
Relationship to Criminal Law
Service offenses with significant wrongful content may also have criminal relevance. If a criminal act is committed, criminal proceedings may be conducted parallel to or prior to the military disciplinary proceedings. Military disciplinary law stipulates that criminal convictions generally influence disciplinary assessment.
Principles of Military Disciplinary Law
Principle of Proportionality
All disciplinary measures must be proportionate to both the offense and the misconduct. The least severe suitable measure is always to be preferred to avoid excessive punishment.
Principle of the Right to be Heard and Fairness
Servicewomen and servicemen have the right to respond to all accusations made against them. The disciplinary procedure is characterized by giving the person concerned the opportunity to present their point of view and defend themselves.
Principle of Independence of Military Service Courts
The military service courts are independent in their decisions and are subject only to the law. They serve as an important control mechanism within the military disciplinary law system.
Significance of Military Disciplinary Law
Military disciplinary law ensures that military order is maintained and that violations within the troops are sanctioned appropriately, in accordance with the law, and transparently. It is a central element in maintaining the operational capability and integrity of the Bundeswehr. Furthermore, it contributes to ensuring the confidence of politics, society, and allied forces in the discipline and reliability of the parliamentary army.
Further Reading:
- Military Disciplinary Code (WDO)
- Soldiers Act (SG)
- Basic Law (GG)
- Military Complaints Regulations (WBO)
- Federal Administrative Court, decisions on military disciplinary law
See also:
- Defense Law
- Criminal Law
- Civil Service Law
Frequently Asked Questions
Who is responsible for initiating disciplinary proceedings under military disciplinary law?
The initiation of a disciplinary proceeding under military disciplinary law is generally the responsibility of the disciplinary superior. This person recognizes an initial suspicion of a service offense by a soldier. The responsibility is determined by the soldier’s career, rank, and arises from the regulations of the Military Disciplinary Code (WDO) and the Soldiers’ Career Regulations. The disciplinary superior initially examines the facts and the actual and legal aspects. In cases of serious service offenses, the case is submitted to the Military Service Court for a decision. In special cases – particularly for higher ranks or complex matters – initiation and conduct of the disciplinary proceedings may also be carried out by higher authorities such as the Federal Ministry of Defense or by a special disciplinary superior authority.
What rights does the affected soldier have in disciplinary proceedings?
The soldier concerned has a variety of rights in disciplinary proceedings, deriving from both the Basic Law and the Military Disciplinary Code (WDO). These include, in particular, the right to a fair hearing, the right to counsel of their choice, and the right to inspect files. The soldier is also entitled to file motions for evidence, name exonerating witnesses, and submit written or oral statements. Furthermore, the soldier may be accompanied during the hearing by legal counsel or a trusted person. In the event of a judicial disciplinary measure, the soldier has extensive participation and committee rights in the proceedings before the Military Service Court. The soldier may appeal decisions of the disciplinary superiors or the Military Service Court, such as filing an appeal or revision subject to the conditions of the WDO.
What is the difference between simple and judicial disciplinary measures under military disciplinary law?
Military disciplinary law distinguishes between simple and judicial disciplinary measures. Simple disciplinary measures, such as admonition, severe reprimand, a disciplinary fine, or leave restrictions, may be imposed by disciplinary superiors. These measures are limited and are intended especially for minor service offenses. Judicial disciplinary measures, by contrast – such as reduction in rank, removal from service, or revocation of pension rights – are imposed by a Military Service Court in formal disciplinary proceedings. Judicial measures require more intensive investigation, comprehensive hearings of the soldier, and a judicial decision. This distinction is also significant because different requirements apply to conditions, procedure, and legal consequences.
What legal remedies are available under military disciplinary law?
Affected soldiers have various legal remedies available in military disciplinary proceedings. For simple disciplinary measures, depending on the measure, a review procedure can be initiated by lodging a complaint under the Military Complaints Regulations. In judicial disciplinary procedures, an appeal may be lodged against the decision of the Military Service Court before the Federal Administrative Court, which acts as the disciplinary court of appeal. Legal remedies are subject to deadlines and formal requirements, such as a written explanation and compliance with appeal time limits. The legal remedy procedure serves for comprehensive review of the decision, legally and, depending on the instance, also factually.
Are the results of military disciplinary proceedings binding for criminal proceedings?
The results and findings of a disciplinary procedure are not generally binding for any parallel criminal proceedings. The same applies vice versa: the criminal judgment is not necessarily binding on the disciplinary proceedings, but may be used as evidence once it becomes legally binding, especially if the misconduct is identical. Disciplinary proceedings are independent and have a distinct purpose, as it is not about criminal sanctions, but the service-related integrity and functioning of the armed forces. However, actual findings from final judgments may be adopted into disciplinary proceedings under § 18 WDO in certain cases, provided that those findings were made in observance of the rule of law.
Are there special limitation periods under military disciplinary law?
Yes, there are special limitation periods under military disciplinary law. According to § 15 WDO, service offenses generally become time-barred after five years, counted from the day of the service offense. Once the limitation period has expired, disciplinary prosecution can no longer take place. The limitation period may, however, be suspended or interrupted, for example, by initiation of judicial disciplinary proceedings or a parallel criminal procedure. It should also be noted that there are special regulations regarding time limits and suspensions for disciplinary measures involving loss of pension rights, removal from service, or promotion bans.
Under what circumstances can a soldier be removed from service?
A soldier can be removed from service if they have committed a serious service offense that has irreparably destroyed the relationship of trust with the employer. Removal is effected by the Military Service Court in judicial disciplinary proceedings and is subject to comprehensive legal conditions and a formal investigation procedure under §§ 63, 65 WDO. Decisive criteria include the objective severity of the misconduct, the soldier’s personality structure, any prior offenses, and the Bundeswehr’s interest in maintaining an upright and operational personnel base. Removal is always the last resort and must be explicitly justified in the judgment of the Military Service Court. The affected soldier has extensive rights to legal remedies and to be heard.
