military law

As of July 26, 2012

§ 1

(1) The soldier can complain if he believes that he has been treated incorrectly by superiors or by Bundeswehr departments or has been injured by comrades acting in breach of duty. The confidant’s right to complain is regulated by the Soldiers’ Participation Act. (2) The soldier can also base the complaint on the fact that he has not received a decision in response to an application within one month. (3) After the end of a military service relationship, the former soldier has the right to lodge a complaint if the reason for the complaint falls within the period of military service. (4) Joint complaints are inadmissible. In this respect, the right to petition is restricted in accordance with Article 17 of the Basic Law.

§ 2

No one may be disciplined or disadvantaged because their complaint was not lodged in the prescribed manner or within the prescribed period, or because they made an unfounded complaint.

§ 3

(1) Complaints regarding troop service matters have no suspensive effect. In particular, the filing of a complaint does not exempt the person from carrying out an order against which the complaint is directed. Section 11 of the Soldiers Act remains unaffected. (2) The body responsible for the decision will examine, even without a request from the complainant, whether the execution of the order or the execution of a measure should be suspended until a decision on the complaint has been made or other interim measures should be taken. If a corresponding application is rejected, the complainant can request a decision from the military service court.

§ 4

(1) The complainant can call a mediator before filing the complaint if he feels personally offended and an amicable settlement seems possible. (2) The intermediary may only be called after one night at the earliest and must be called within one week of the complainant becoming aware of the reason for the complaint. (3) As mediator, the complainant chooses a soldier who enjoys his personal trust and is not involved in the matter himself. The person called as an intermediary may only refuse to carry out the mediation for important reasons. Immediate superiors of the complainant or the person about whom the complaint is made (affected person) are not allowed to take over the mediation. (4) The mediator should familiarize himself with the facts of the case in personal contact with those involved and endeavor to reach a settlement. (5) If the complainant asks the person concerned for a discussion before mediation or instead of mediation, the person concerned must give him or her the opportunity to present his or her point of view. (6) The running of the appeal period is not hindered by mediation or a discussion.

§ 5

(1) The complaint must be lodged with the complainant’s nearest disciplinary superior. If another body is responsible for the decision, the complaint can also be lodged there. (2) Soldiers receiving inpatient treatment in a Bundeswehr hospital may also lodge complaints with the chief physician of the Bundeswehr hospital. Soldiers who are in Bundeswehr prison facilities for the purpose of enforcement can also lodge complaints with their prison superiors. (3) If the next disciplinary superior or the bodies mentioned in paragraph 2 are not themselves responsible for deciding on a complaint lodged with them, they must immediately forward the complaint directly to the responsible body.

§ 6

(1) The complaint may only be lodged after one night at the earliest and must be lodged within one month of the complainant becoming aware of the reason for the complaint. (2) The complaint must be submitted in writing or orally. If it is presented orally, a transcript must be recorded, which the person recording it must sign and the complainant should sign. A copy of the minutes must be given to the complainant upon request.

§ 7

(1) If the complainant is prevented from meeting a deadline due to military service, natural events or other unavoidable coincidences, the deadline does not expire until two weeks after the obstacle has been removed. (2) It is also to be regarded as an unavoidable coincidence if the prescribed legal remedy information was omitted or incorrect.

§ 8

(1) The complaint can be withdrawn at any time by written or oral statement. Section 6 paragraph 2 sentences 2 and 3 apply accordingly. The declaration must be made to the nearest disciplinary superior or the body otherwise responsible for the decision. This complaint is therefore resolved. (2) The superior’s obligation to correct deficiencies within the scope of his official supervision remains.

§ 9

(1) The disciplinary superior, who is responsible for assessing the subject matter of the complaint, decides on the complaint. The next higher office decides on complaints against departments of the Bundeswehr administration. (2) If the Federal Minister of Defense has to decide on complaints in military matters, his representative can sign the complaint decision; the Federal Minister of Defense can further delegate the signing authority. The Federal Minister of Defense, as the highest service authority, decides on complaints in administrative matters. (3) If the subordination of the person concerned has changed (Section 4 Paragraph 3 Sentence 3) and the complaint is directed against him or her personally, responsibility is transferred to the person concerned’s new superior. (4) In cases of doubt, the next joint superior determines who has to make the decision.

§ 10

(1) The deciding superior must clarify the matter through oral or written negotiations. He can entrust the investigation of the matter to an officer. In cases of lesser importance, the decisive superior can also commission the company sergeant or a non-commissioned officer in an appropriate position to examine witnesses, provided they are enlisted men or non-commissioned officers without a portepee. A short summary report must be prepared on the content of oral negotiations. (2) In the event of complaints relating to specialist service matters, the opinion of the next higher specialist department must be obtained if the latter is not responsible for the decision itself. (3) The participation of the person of trust is regulated by the Soldiers’ Participation Act.

§ 11

If the disciplinary superior responsible for the decision is not present in detached units, on board ships or in similar cases and cannot be reached in writing by ordinary mail, the following applies: a) The complainant can file the complaint as soon as the hindrance has disappeared. In this case, the deadline for lodging a complaint does not expire until two weeks after the obstacle has been removed. b) The complaint can also be made to the highest officer present. The latter must prepare the decision on the complaint in accordance with Section 10 and, after the obstacle has been resolved, immediately forward the files to the body responsible for the decision. He can take measures in accordance with Section 3 Paragraph 2.

§ 12

(1) The complaint will be decided in writing. The decision must be justified. It must be served on the complainant in accordance with the provisions of the Military Disciplinary Code and also communicated to the person concerned (Section 4 Paragraph 3 Sentence 3). If the complaint is rejected, the complainant must be informed in writing about the permissible legal remedy, the body to which the legal remedy is to be lodged and the deadline to be observed. (2) If the assessment of a question that is to be decided in another procedure is essential to the decision on the complaint, the complaint procedure may be suspended until the end of the other procedure if this does not cause unreasonable delay. The complainant must be informed of the suspension. If the complaint is not resolved by the outcome of the other proceedings, it must be dealt with further. (3) If the complaint has not been received within the prescribed period by a body to which it can be lodged in accordance with this Act, it must be rejected with reference to this deficiency. It should still be pursued; If necessary, remedial action must be taken.

§ 13

(1) If the complaint proves to be justified, it must be upheld and remedial action taken. Inadmissible or improper orders or measures must be repealed or modified. If an order has already been carried out or otherwise completed, it must be stated that it should not have been issued. This also applies to other measures and omissions if the complainant has a legitimate interest in this determination. Measures that were wrongly omitted must be taken up, as far as possible, and requests or applications that were wrongly rejected must be approved. In the event of a complaint pursuant to Section 1 Paragraph 2, the matter must be decided by oneself. (2) If it turns out that a disciplinary offense has occurred, the military disciplinary regulations must be followed. The complainant must be informed whether a disciplinary measure has been taken against the person concerned or whether disciplinary measures have been waived. (3) If the complaint is not justified, it must be rejected. (4) If the complaint is upheld, a decision must also be made about the reimbursement of the necessary expenses and the need to involve an authorized representative.(1) If the complaint proves to be justified, it must be upheld and remedial action taken. Inadmissible or improper orders or measures must be repealed or modified. If an order has already been carried out or otherwise completed, it must be stated that it should not have been issued. This also applies to other measures and omissions if the complainant has a legitimate interest in this determination. Measures that were wrongly omitted must be taken up, as far as possible, and requests or applications that were wrongly rejected must be approved. In the event of a complaint pursuant to Section 1 Paragraph 2, the matter must be decided by oneself. (2) If it turns out that a disciplinary offense has occurred, the military disciplinary regulations must be followed. The complainant must be informed whether a disciplinary measure has been taken against the person concerned or whether disciplinary measures have been waived. (3) If the complaint is not justified, it must be rejected. (4) If the complaint is upheld, a decision must also be made about the reimbursement of the necessary expenses and the need to involve an authorized representative.

§ 14

The investigation of the complaint must always include whether there is a lack of supervision or other deficiencies in the department.

§ 15

The continuation of the proceedings is not affected by the fact that the complainant’s employment relationship ends after the complaint is lodged.

§ 16

(1) If the complaint in troop service matters has been unsuccessful, the complainant may lodge a further complaint within one month of delivery of the complaint notice. (2) A further complaint can also be lodged if a decision has not been made on the complaint within one month. (3) The next higher disciplinary superior is responsible for deciding on the further complaint. (4) The provisions on complaints apply accordingly to any further complaints.

§ 16a

(1) The pre-trial procedure begins with the filing of the complaint. It’s free. (2) If the complaint in military service matters is successful, the complainant must be reimbursed for the necessary expenses incurred for appropriate legal prosecution or legal defense. (3) The remuneration of a lawyer or other authorized representative is only refundable if the involvement was necessary. (4) If the complaint is remedied before a complaint notice is issued, paragraphs 1 to 3 are to be applied mutatis mutandis, taking into account the current state of affairs. (5) The decision on the reimbursement of the necessary expenses and the need to involve an authorized representative can be challenged by appealing to the military service tribunal. Section 17 paragraph 4 applies accordingly. The chairman of the military service chamber makes the final decision on this matter. If the Federal Minister of Defense or the Inspector General of the Bundeswehr issues the complaint decision, sentences 1 to 3 apply accordingly with the proviso that the Federal Administrative Court replaces the military service tribunal. (6) Section 140 paragraph 8 and Section 142 of the Military Disciplinary Code apply accordingly.

§ 17

(1) If the further complaint is unsuccessful, the complainant can apply for a decision from the military service tribunal if his complaint concerns a violation of his rights or a violation of the duties of a superior towards him, which are set out in the second subsection of the first section of the Soldiers Act with the exception §§ 24, 25, 30 and 31 are regulated. The application can also be submitted if a decision has not been made on the further complaint within one month. (2) The procedure before the military service court replaces the administrative legal process in accordance with Section 82 of the Soldiers Act. (3) The application can only be used to assert that an official action or omission is unlawful. Illegality also occurs if the complainant is injured by exceeding or abusing official authority. (4) The application must be submitted to the responsible military service tribunal in writing or orally for recording within one month after delivery of the rejection notice of appeal or after expiry of the period specified in paragraph 1 sentence 2. The complainant should provide the facts and evidence supporting the application, enclosing the notice of appeal and the notice of further complaint. The deadline will also be met if the application is submitted to the nearest disciplinary superior or, in the cases of Section 5 Paragraph 2 and Section 11 Letter b, to the superior designated there. The application must be submitted to the military service court immediately. The military service tribunal established for the command area to which the person concerned belongs at the time of the complaint is responsible. (5) After one year has passed since the further complaint was lodged, appeal to the military service tribunal is excluded. § 7 applies accordingly. (6) The application has no suspensive effect. The military service tribunal, or its chairman in urgent cases, can, at the request of the complainant or ex officio, order the suspensive effect after hearing the responsible disciplinary superior. The order can be made before the application for a court decision is submitted if the responsible disciplinary superior has rejected an application in accordance with Section 3 Paragraph 2 or has not suspended enforcement within a period set by the military service tribunal.

§ 18

(1) The rank of the complainant is decisive for the appointment of the military service tribunal. (2) The military service tribunal must clarify the facts of its own motion. It can collect evidence as in judicial disciplinary proceedings. It decides without a hearing, but may schedule a hearing if it considers this necessary. If evidence has been taken, the military service tribunal must inform the complainant and the person concerned of the evidence and give them the opportunity to inspect the files and comment within a deadline to be set by the court, which must be at least three days. The military service tribunal makes a decision, which is to be served on the complainant and the Federal Ministry of Defense in accordance with the provisions of the military disciplinary regulations and is to be communicated informally to the person concerned. The decision must be justified. (3) If the military service court considers that another court has jurisdiction, it refers the matter there. The decision is binding. (4) The military service tribunal may submit legal questions of fundamental importance to the Federal Administrative Court for a decision if, in its opinion, the further development of the law or the securing of uniform jurisprudence requires this. The military service senates decide on the composition of three judges and two honorary judges by resolution. The Bundeswehr disciplinary lawyer must be given the opportunity to comment before the decision is made. The decision in this case is binding for the military service tribunal.

§ 19

(1) If the military service tribunal considers an order or measure against which the application is directed to be unlawful, it shall revoke the order or measure. If an order has already been carried out or otherwise completed, it must be declared that it was unlawful. This also applies to other measures or omissions if the complainant has a legitimate interest in this determination. If the military service court considers the rejection of an application or the failure to take a measure to be unlawful, it imposes an obligation to comply with the application or to take other action in compliance with the legal opinion of the court. (2) If the complainant has been injured as a result of an official offense, the military service tribunal will also impose an obligation to proceed in accordance with the military disciplinary regulations.

§ 20

(1) If the application for a decision by the military service tribunal is approved, the necessary expenses incurred by the complainant in the proceedings before the military service tribunal, including the pre-trial proceedings, must be borne by the federal government. This does not apply to necessary expenses incurred by the complainant due to culpable default. (2) The complainant may be ordered to pay the costs of the proceedings before the military service court if the court considers the application to be clearly inadmissible or obviously unfounded. The costs of the proceedings, which he caused through culpable default, must be imposed on him. (3) If the application for a court decision has become irrelevant, paragraphs 1 and 2 must be applied mutatis mutandis, taking into account the current state of affairs. (4) Section 137 paragraph 1 and 2 numbers 1 to 3, Section 140 paragraph 8, Section 141 paragraph 1 and 2 as well as Section 142 of the Military Disciplinary Code apply accordingly.

§ 21

(1) The complainant may directly request a decision from the Federal Administrative Court against decisions or measures taken by the Federal Minister of Defense, including decisions on complaints or further complaints. The application must be submitted to the Federal Ministry of Defense. (2) Sections 17 to 20 apply accordingly to the application for a decision by the Federal Administrative Court and to the procedure. Section 20 paragraph 4 in conjunction with Section 142 of the Military Disciplinary Code is to be applied with the proviso that the Federal Administrative Court replaces the military service court. (3) Deviating from Section 17 Paragraph 4 Sentence 4, the Federal Ministry of Defense submits the application with a statement. Furthermore, the Federal Minister of Defense is represented in the proceedings before the Federal Administrative Court by the Bundeswehr disciplinary lawyer.

§ 22

Section 21 paragraphs 1, 2 and 3 sentence 2 applies accordingly to the decisions of the Inspector General of the Bundeswehr on further complaints.

§ 22a

(1) The complainant and the Federal Ministry of Defense are entitled to lodge a legal appeal with the Federal Administrative Court against the decision of the military service tribunal if this is permitted in the decision of the military service tribunal or in response to an appeal against non-admission by the Federal Administrative Court. (2) The appeal shall only be permitted if:

1. the matter of the complaint is of fundamental importance,
2. the contested decision deviates from a decision of a military service court, the joint senate of the highest federal courts or the Federal Constitutional Court and the decision is based on this deviation or
3. a procedural defect is asserted and exists on which the decision can be based.

(3) The Federal Administrative Court is bound to the admission of the appeal by the military service court. (4) The legal complaint must be submitted in writing to the military service tribunal whose decision is being contested within one month of delivery of the decision and must be justified in writing within two months of delivery of the decision. (5) In the legal complaint proceedings, if the complainant submits an application, he or she must be represented by a lawyer or by a person who is qualified to hold judicial office in accordance with the German Judiciary Act or who meets the requirements of Section 110 of the German Judiciary Act. Section 21 paragraph 2 and 3 sentence 2 applies accordingly. (6) The Federal Administrative Court decides on the legal complaint by means of an order. If the legal complaint is well-founded, the Federal Administrative Court can decide on the matter itself or annul the contested decision and refer the matter back to the military service tribunal for another hearing and decision.

§ 22b

(1) If the military service tribunal does not admit the appeal, the complainant and the Federal Ministry of Defense are entitled to file an appeal of non-admission with the Federal Administrative Court. Section 22a paragraph 5 applies accordingly. (2) The complaint against non-admission must be submitted in writing to the military service tribunal within one month of delivery of the decision and the reasons must be given in writing within two months of delivery of the decision. The justification must state the fundamental significance of the appeal matter or describe the decision from which the decision deviates or the procedural defect. (3) The filing of an appeal against non-admission suspends the legal force of the contested decision. (4) If the military service court does not resolve the non-admission complaint, the Federal Administrative Court will make a decision without honorary judges. The decision must be justified. With the rejection of the non-admission complaint by the Federal Administrative Court, the decision of the military service tribunal becomes legally binding. (5) If the non-admission complaint is remedied or the Federal Administrative Court admits the appeal, the non-admission appeal procedure will be continued as a legal appeal procedure. In this case, the appeal must be substantiated within one month of delivery of the decision on admission. This must be pointed out in the decision.

§ 23

(1) If the administrative legal process is available for a lawsuit arising from military service, the complaint procedure takes the place of the preliminary procedure. (2) In these cases, the complaint can also be lodged with the body whose decision is being contested. If this body considers the complaint to be justified, it will resolve the complaint. Otherwise, it will submit the complaint to the body responsible for the decision. (3) The further complaint is not admissible. (4) The Federal Minister of Defense may, by general order, transfer the decision to the body that adopted the contested measure or to other bodies in cases in which he would be responsible for deciding on the complaint. The order must be published. (5) An action against decisions of the Federal Minister of Defense is only admissible if the Federal Minister of Defense has made a new decision on a complaint. (6) The complaint has a suspensive effect. The suspensive effect does not apply to decisions regarding the establishment, conversion or termination of a military service relationship. Otherwise, the provisions of Section 80 paragraphs 5, 7 and 8 of the Administrative Court Code apply accordingly. (7) Section 18 paragraph 3 applies accordingly.

§ 23a

(1) To supplement the provisions of this Act, the provisions of the Military Disciplinary Code apply, in particular regarding access to files, bias of the disciplinary superiors responsible for the decision, binding to the factual findings of other decisions, compensation for witnesses and experts and readmission accordingly. (2) In the court application procedures as well as in the procedures pursuant to Sections 22a and 22b, the provisions of the Administrative Court Code and the Court Constitution Act must also be applied accordingly, unless the nature of the complaint procedure conflicts with this. The provisions of Title Seventeen of the Court Constitution Act are to be applied accordingly with the proviso that the military service senates at the Federal Administrative Court take the place of the Federal Court of Justice and the Administrative Court Rules take the place of the Code of Civil Procedure. (3) Section 152a of the Administrative Court Code applies accordingly to the complaint of a violation of the right to be heard.

§ 24