Military Justice (Switzerland)

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The military justice system is the military law enforcement and judicial authorities in Switzerland. It assesses the criminal acts that are subject to military criminal justice under military criminal law (in particular the Military Criminal Act of June 13, 1927). Their independence is guaranteed (Art. 1 Military Criminal Trial of March 23, 1979).

tasks

The military judiciary conducts criminal proceedings if it is a question of criminal behavior by members of the army during military service, including those of professional military personnel.

It is also responsible for assessing the behavior of members of the border guards and uniformed personnel from military operations while they are working.

Furthermore, the area of ​​responsibility of the military justice extends in particular to persons obliged to serve outside of the service with regard to their military position and their official duties (e.g. compulsory shooting ) as well as persons obligated to act with regard to their position obligation (Article 3 Paragraph 1 Numbers 4 and 5 MStG).

The military justice system continues to conduct proceedings against civilians and the like. a.

The persons subject to military criminal law are also subject to military jurisdiction if they commit an offense against federal road traffic legislation during a military exercise, when the troops are performing an official duty or in connection with a criminal act provided for in the MStG . The criminal provisions of civil law (in particular SVG, VRV) are applicable; deviating provisions, namely the Ordinance on Military Road Traffic of February 11, 2004 ( VMSV ; SR 510.710), are reserved ( Art. 64 VMSV). In minor cases there is disciplinary punishment ( Art. 218 Para. 3 MStG).

Offenses against the Federal Act of 3 October 1951 on the narcotics and psychotropic substances ( narcotics law, BetmG ) are rarely judged by the military justice system: Mild cases are from the force commander disciplinary action to punish; serious cases remain outside of the military jurisdiction and are therefore prosecuted by the civil criminal authorities ( Art. 218 para. 4 MStG).

If someone is accused of more than one criminal act, some of which are subject to military and some to civil jurisdiction, the chief auditor can delegate their exclusive assessment to the military or civil court ( Art. 221 MStG, Art. 46 Para. 2 MStV). This transfer of jurisdiction specifically serves to avoid additional penalties.

Legally binding judgments or criminal mandates from the military justice system - like those from the civil criminal authorities - are entered in the criminal record if necessary (Art. 3 Paragraph 1 of the Ordinance of 29 September 2006 on the Criminal Record).

organization

The regulations on the organization and procedure of military justice are largely contained in the military criminal process.

The military justice system consists of seven courts:

  • three military courts with a total of eight departments as first instance (eight independent courts until 2017)
    • Military court 1 (French-speaking, Tribunal militaire 1) with three sections
    • Military court 2 (German speaking) with four departments
    • Military court 3 (Italian-speaking, Tribunale militare 3) with one department
  • three military appeals courts, each with a committee as a second instance
    • Military Court of Appeal 1 (French-speaking, Tribunal militaire d'appel 1)
    • Military Court of Appeal 2 (German speaking)
    • Military Court of Appeal 3 (Italian-speaking, Tribunale militare d'appello 3)
  • Military Cassation Court (MKG; Tribunal militaire de cassation or Tribunale militare di cassazione, TMC) as the third and final (domestic) appellate instance

The assignment of troop units to military courts ensures that members of the armed forces are judged by a court in their mother tongue, which is not guaranteed in civil criminal justice if the crime scene is located in a different language.

The supervision of the military justice is ensured by the chief auditor of the army. The senior auditor holds the degree of brigadier ( Art. 17 Para. 2 MStP).

Unit commanders who can pronounce disciplinary punishments under the disciplinary code do not belong to the military justice system.

Each military court of first instance is assigned a certain number of the following functions:

The auditors (military prosecutors ; aud; lieutenant colonel, major or specialist officer ) and examining magistrates (UR; major, captain or specialist officer; including candidates) are organized independently of the courts in three separate examining magistrate and auditor regions.

The members of the military tribunal perform their military service within the framework of military justice ; it is a variant of the militia system in Switzerland. Relatives with crew grade, NCOs, subaltern officers , captains are considered specialists within the meaning of Article 13 paragraph 4 MG.

Members of the armed forces who have completed a law degree with a licentiate or master's degree from a Swiss university or who are admitted to the cantonal law can be classified as members of the military justice system. As an exception, other AdA can also be assigned if they have sufficient legal knowledge and carry out a corresponding civilian activity (Art. 2 Para. 1 f., 3 MStP).

Presidents, judges and substitute judges of the military courts and the military appellate courts are elected by the Federal Council (Art. 7 para. 1, 11 para. 1 MStP). The United Federal Assembly acts as the electoral body for the relevant members of the Military Court of Cassation (Art. 14 para. 1 MStP). The other members of the military justice system are designated by the Federal Council (Art. 2 Para. 4, 3 MStP).

Members of the military justice system who do not meet their duties can be officially transferred back to the troops. A reassignment back to the troops can also take place on request.

According to Art. 127, Paragraph 1 of the MStP, the accused must have a defense counsel in the main hearing ; this is not always the case in civil criminal procedure law. In the preliminary investigation or the preliminary taking of evidence, the defense is permissible, but only mandatory in certain cases (Art. 43 et seq. MStV). Any Swiss citizen who is admitted to the bar and is entered in the bar register (Art. 99 para. 1 MStP) can act as defense counsel. There are no special military lawyers; however, the military courts regularly draw up a list of official defense counsel (Art. 99 para. 2 MStP).

The independence of the military justice is guaranteed (Art. 1 MStP). The organs of the military justice are exclusively obliged to the law . Instructions (or any other kind of influence) - e.g. from political organs or military bodies - are inadmissible and therefore irrelevant. This is compatible with Article 7, Paragraph 2 of the MStV, according to which members of the military justice system (for their own criminal acts) are subject to the disciplinary authority of the chief auditor.

The members of the military justice service - subject to exceptions to be approved by the chief auditor - in uniform (Art. 6 MStV). The collar tabs and the loops of the members of the military justice are purple. The beret, on the other hand, is black. The members of the military justice are armed with pistols .

The mutual assistance between the Military dishes (or civilian authorities penalty) is ensured (Art. 18 MSTP). Cooperation with the organs of military security or the civil police is also ensured. If necessary, other bodies are called in, for example forensic medical experts .

In contrast to the civil StPO, which allow a criminal case with a criminal mandate to be dealt with without questioning, the organs of the military justice cannot pronounce a penalty without a preliminary investigation (including questioning) having been carried out beforehand.

The military criminal process provides for an extensive legal remedy system . For example, according to Art. 172 Para. 1 MStP, an appeal against judgments of the military courts is permissible with the exception of judgments in absentia . The latter judgments (in addition to the cassation appeal) are subject to resumption after the judgment has been opened upon request.

The military courts can sit anywhere in Switzerland, regardless of jurisdiction.

Criticism and attempts at abolition

Military justice is politically controversial. Left-wing parties in particular regularly demand the abolition of military justice without replacement, arguing that civil courts could just as well judge all crimes of the MStG.

On January 30, 1921, an initiative for the abolition of military justice was rejected by the people and the cantons.

Web links

Some attempts at abolition:

Individual evidence

  1. ↑ Ordinance on Military Justice (MJV) of November 22, 2017
  2. ↑ Presidential and judge elections of the military and military appellate courts for the term of office 2008–2011 (BBl 2007, 8298) (PDF; 498 kB), term of office 2012–2015 (BBl 2011, p. 9023) (PDF; 121 kB), term of office 2016 –2019 (BBl 2015, p. 7723) (PDF; 110 kB) with supplementary choice (BBl 2018, p. 981) (PDF; 562 kB)
  3. ^ Military Court of Cassation: Total renewal 2008–2011 and election of a female judge (Barbara Ott as first woman ); Complete renovation 2012–2015 ; Complete renovation 2016–2019