Concept and Significance of the Right to Complain for Soldiers
Das Right to Complain for Soldiers is a central and constitutionally protected right within the Bundeswehr, serving to protect the fundamental rights of servicewomen and servicemen. It enables members of the Bundeswehr to defend themselves against official measures, orders, or questionable conduct by superiors and other entities. The legal foundations and procedures are comprehensively regulated in the Military Personnel Act (SG), the Military Complaints Act (WBG), and supplementary legal provisions.
Legal Foundations of the Right to Complain
Constitutional Background
The right to complain for soldiers is based on Article 17a of the Basic Law (GG) in conjunction with Article 17 GG. While Article 17 GG basically grants everyone the right to petition, Article 17a GG provides that, due to special service-related considerations, restrictive rules may be imposed for soldiers.
Ordinary Statutory Formulation
Die ordinary statutory formulation of the right to complain for soldiers is primarily found in the Military Complaints Act (WBG) of December 19, 1956 as well as in the Military Personnel Act (SG). The Military Complaints Act regulates the procedure, responsibilities, and types of permissible complaints.
Key Legal Bases:
- Military Personnel Act (SG), in particular § 1a SG, § 4 SG, § 17 SG
- Military Complaints Act (WBG)
- Regulation on Procedures for Complaints within the Bundeswehr (Complaint Regulation – BO)
Scope and Subject Matter of the Right to Complain
Content of the Right to Complain
The right to complain covers:
- Official Measures: This includes orders, official instructions as well as actual measures taken within the duty operation.
- Omitted Measures: Soldiers may also file complaints against the omission of required measures.
- Infringement of Subjective Rights: The right to complain serves as protection against measures which affect the rights and duties of soldiers.
Addressees and Subjects of the Complaint
- Superiors and Service Units: Complaints are typically directed against superiors, command authorities, or other military offices.
- Matters: This includes unequal treatment, arbitrary or unlawful orders, disciplinary measures, official evaluations, transfers, or other interventions in the rights of soldiers.
Types of the Right to Complain
Simple Complaint
Die simple complaint (§ 7 WBG) enables the soldier to address the responsible superior or relevant office directly and informally in the case of immediate measures. The aim is a quick and uncomplicated resolution via official channels.
Formal Complaint
Die formal complaint (§§ 8-13 WBG) requires compliance with certain formal requirements and must be submitted in writing to the service unit. It primarily concerns serious measures or cases in which the simple complaint was unsuccessful.
Disciplinary Complaint
A Disciplinary Complaint (§§ 16-21 WBG) is directed against disciplinary measures and is handled in a special formal procedure. Here, special responsibilities and assessment standards are applied.
Collective Complaint
A Collective Complaint occurs when several soldiers jointly complain about a measure affecting all of them. The procedure and admissibility are regulated in § 7 paragraph 2 WBG.
Procedure and Sequence of the Complaint Process
Initiation and Admissibility of the Complaint
The initiation of a complaint follows the provisions of the WBG. It may be submitted in writing or, in the case of a simple complaint, orally. Deadlines apply for submission, generally one month after becoming aware of the measure or incident (§ 6 WBG).
Prerequisites for Admissibility:
- Concern of the Complainant
- No simultaneous recourse to other judicial instances
- Compliance with formal and substantive requirements
- Observation of the complaint deadline
Procedure and Processing Channels
- Receipt of the Complaint: The complaint is submitted to the responsible superior or the responsible service unit.
- Investigation of the Facts: The office examines whether the complaint is justified and investigates the relevant facts.
- Decision: The decision is issued in a written notice. This must be justified and delivered to the complainant.
Further Instances
If the complaint is not remedied, further official review may be requested via official channels. The procedure can continue up to the next higher command authority and, in the final instance, up to the Federal Ministry of Defence . In certain cases, an application for judicial review before the Military Service Court is possible.
Special Provisions: Parliamentary Commissioner for the Armed Forces
A special position is held by the right of petition to the Parliamentary Commissioner for the Armed Forces of the German Bundestag (§ 7 WehrbeauftrG). Soldiers have the right to address the Parliamentary Commissioner directly, bypassing the official channel. This represents an additional legal remedy independent of the military hierarchy.
Legal Protection and Distinction from Other Remedies
The right to complain for soldiers is part of the internal legal protection within the armed forces and serves to protect against unlawful or arbitrary measures. It does not replace judicial administrative relief, but constitutes the prior internal procedure.
Distinction from Legal Proceedings
Civil legal proceedings are only permitted after completion of the administrative or disciplinary appeal process and under certain conditions. The principle of subsidiarity of judicial remedies also applies in military disciplinary law.
Meaning and Function in Practice
The right to complain for soldiers is an essential element for safeguarding rights and maintaining human dignity within the Bundeswehr. It contributes to the control and transparency of military actions and protects soldiers from arbitrary measures. The multi-stage procedure ensures both autonomous internal review and oversight by external bodies.
References and Sources
- Law on the Legal Status of Soldiers (Military Personnel Act – SG)
- Military Complaints Act (WBG)
- Basic Law for the Federal Republic of Germany (GG)
- Law on the Parliamentary Commissioner for the Armed Forces (WehrbeauftrG)
This article provides a comprehensive legal overview of the right to complain for soldiers in Germany, with detailed information on the foundations, procedures, and specific features according to the current state of legislation.
Frequently Asked Questions
How is the right to complain for soldiers regulated in military law?
The right to complain for soldiers is a central element in protecting their rights within the Bundeswehr and is regulated in the Military Personnel Act (SG) as well as in the Military Complaints Regulation (WBO). Soldiers therefore have the right to complain about measures, omissions, or decisions by superiors or military service units if they feel their rights have been violated as a result. The legal basis for this is provided in particular by § 17a SG and §§ 1 ff. WBO, which precisely define the structure, deadlines, and sequence of the complaint process. Of particular note is the principle that soldiers can lodge a complaint without fear of disadvantage (remonstration right). Observance of the requirement of written form and the official channels is generally necessary, although exceptions exist for certain cases, such as submissions to the Parliamentary Commissioner. The procedure differentiates between a simple complaint (e.g., against measures by a superior) and a formal complaint (against decisions or their omission), with the latter involving further legal review and participation of other bodies, such as the Military Service Court.
What deadlines must soldiers observe when filing a complaint?
Adherence to specific deadlines is legally mandatory for asserting the right to complain. According to § 6 para. 1 WBO, a complaint must generally be filed within one month of notification of the measure or decision. The deadline begins on the day the measure is communicated to the soldier or the soldier becomes aware of it. If the deadline is missed through no fault of their own, a request for reinstatement to the previous status can be made under certain conditions (§ 7 WBO). Especially in the case of formal complaints, special attention must be paid to timely submission, as missing the deadline generally leads to inadmissibility of the complaint and thus forfeiture of the right to review.
What formal requirements must be observed when submitting a complaint?
The military complaint procedure imposes specific formal requirements on both content and form of the complaint. According to § 8 WBO, the complaint must generally be submitted in writing. It must clearly specify the subject of the complaint and set out the facts and evidence on which the soldier relies. The complaint is generally to be addressed via official channels, i.e., it is addressed to the immediate superior, who forwards it to the responsible complaints authority without examining the content. In certain exceptional cases, such as due to service-related reasons or imminent prevention, the complaint may exceptionally be made orally, but must then promptly be confirmed in writing. Furthermore, confidentiality and secrecy obligations must be observed.
Against which measures can a complaint be raised?
The right to complain extends to all official measures, omissions, or decisions by superiors or service units, from which the soldier feels their rights have been violated. This includes, for example, transfers, service and training instructions, official evaluations, disciplinary actions, non-selection for promotions or transfers, and orders by a superior during duty. Excluded are only measures for which other remedies are already provided (e.g., judicial action before military service courts), or those that have already been finally decided. Measures that concern only the organization of the Bundeswehr and do not affect individual legal positions are also not subject to the complaint procedure.
Which instances are involved in processing a complaint?
The complaint procedure provides for a multi-level instance model. As mentioned, the complaint must first be filed via the official channel. The first factual instance is usually the disciplinary superior, who decides on the complaint. Against this decision a further complaint (so-called further complaint) may be lodged within one month with the next higher complaints authority (§ 13 WBO). If it is a formal complaint and the soldier is not satisfied with the final decision, the Military Service Court (judicial instance) can finally be approached (§§ 17 ff. WBO). This succession of instances ensures a step-by-step and independent review of official measures.
Which procedural rights do soldiers have in the complaint process?
In the procedure, the soldier is entitled to a number of procedural rights, especially the right to be heard (§ 23 WBO), access to files, and the assistance of a trusted person or legal counsel. In judicial proceedings before the Military Service Court, the usual procedural guarantees also apply, such as the right to request evidence, oral hearings, and detailed decisions. Furthermore, there is a right to prompt processing of the complaint and to notification of a written decision. The principles of impartiality and thorough fact-finding must be observed; discrimination or disadvantaging due to the complaint is prohibited by law (§ 17 para. 2 SG).
What is the significance of the right to address the Parliamentary Commissioner in the context of the right to complain?
In addition to the regular complaint pathway, soldiers have the right to address the Parliamentary Commissioner for the Armed Forces of the German Bundestag directly. This right is regulated in Article 45b of the Basic Law and the Act on the Parliamentary Commissioner and constitutes a special opportunity to complain outside the military channel. Soldiers can address any issues to him directly and independently of deadlines if they experience injustice or grievances in service or the exercise of their fundamental rights. Referring to the Parliamentary Commissioner is equivalent to the regular complaint procedure, but does not replace it; therefore, it is generally advisable to pursue the official complaint channel in parallel. Filing a complaint with the Parliamentary Commissioner must not result in any service-related disadvantages.
