Military Criminal Court

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A military criminal court is a federal court provided for but not prescribed by the Basic Law (GG) , which exercises criminal jurisdiction over members of the armed forces ( Art. 96 (2) sentence 1 GG).

history

In 18th century Prussia , the military's special jurisdiction was considered a privilege. In the German Reich , Article 61 of the Reich constitution of 1871 contained the mandate for uniform military jurisdiction. In 1898 the Military Criminal Court Code (MStGO) was enacted. After the First World War , Article 106 of the Weimar Constitution abolished military jurisdiction, except in the event of war and on board warships. In 1934 it was reintroduced as the Wehrmacht justice system. The establishment of military criminal courts was allowed in 1956 in the course of rearmament, the ordinary legislature by amendment of the constitution. While military courts are established in great old democracies like the United Kingdom , France and the United States of America , the term "military jurisdiction" is negatively affected in Germany.

General

The weir judgments include the Federal, as for the optional jurisdiction German Patent Court ( Art. 96 , para. 1 GG) and the Federal Court disciplinary ( Art. 96 , para. 4 GG). Its establishment is not required even in a case of defense . These are not specialized courts , but special courts , but not exceptional courts . The military criminal court should not be confused with the - existing - military service courts ( troop service courts ) that the judicial disciplinary proceedings have jurisdiction.

The federal government has so far not made use of the right to establish military criminal courts. Soldiers' criminal cases (including military offenses ) are therefore heard in the ordinary courts. The place of jurisdiction for criminal offenses committed by soldiers in special foreign assignments is Kempten ( § 11a StPO ).

The jurisdiction of the military criminal courts is limited to the case of defense ( Art. 115a GG) or members of the armed forces who are embarked on warships or sent abroad ( Art. 96 (2) sentence 2 GG). It is not necessary to perceive a special foreign use. Participation in exercises, courses or filling a foreign service post is sufficient (e.g. within NATO , as a military attaché or in Bundeswehr agencies abroad such as the 291 hunter battalion in France ). An internal deployment of the Federal Armed Forces is also not included, even if military force should be used to counter insurgency ( Article 87a, Paragraph 4 of the Basic Law), as long as the case of defense has not been declared. The voltage drop ( Article 80a, Paragraph 1 of the Basic Law) is also not sufficient.

Material scope

The competence of the military criminal courts would extend to criminal law. In addition to the core criminal law standardized in the Criminal Code, this also includes the scope of the Military Criminal Law and the other ancillary criminal law . Even offenses would fall within the jurisdiction, but not civil affairs of the armed forces and the military disciplinary law. For the latter exist as military service courts the troop service courts ( North and South ) and the first and second conscientious Senate of the Federal Administrative Court .

Personal scope

The members of the armed forces are included in the personnel scope. The armed forces in Germany comprise the military organizational areas of the Bundeswehr. These are the armed forces of the army , air force and navy as well as the armed forces base , the organizational area cyber and information space (CIR) and the central medical service of the Bundeswehr . It does not include the civil organizational areas, i.e. the Bundeswehr administration , military chaplaincy and the administration of justice by the Bundeswehr. Members of the armed forces are predominantly soldiers , members of the civilian organizational areas, civil servants or employees. However, there is always a small number of soldiers who work in the civil organization areas, just as civilians can belong to a military organization area. In addition, members of the civil organization often switch to soldier status in a special foreign assignment, including a. to the international legal protection as a combatant to enjoy.

According to the wording of Article 96, Paragraph 2, Sentence 1 of the Basic Law, members of the armed forces, regardless of their status as soldiers, civil servants or employees of the military criminal jurisdiction, are not subject to soldiers in civil organizational areas. It also does not include prisoners of war . The latter contradicts Art. 84 (1) III. Geneva Convention , according to which prisoners of war should be treated equally with their own soldiers in criminal justice.

Further constitutional requirements

To ensure the independence of judges, in particular with regard to courts martial of the Third Reich was determined that the courts the division of the Department of Justice (not defense () belong 96 Art. Sentence. 2 4 GG) and the judges both the qualified judge who and have to work full-time ( Art. 96, Paragraph 2, Clause 5). A staff officer with the qualification for judicial office is not enough, for example. The addition of honorary judges (lay judges) to military criminal courts is possible. These can be civilians as well as soldiers. However, a purely military court is excluded.

The appeal ends at the Federal Court of Justice ( Art. 96, Paragraph 2, Paragraph 3). According to the wording "military criminal jurisdiction", the constitutional body wanted to leave the question of the number of military criminal courts to the federal legislature. The Basic Law does not comment on an intermediate instance for appeals (an upper military criminal court ) and thus seems to allow it. The federal legislature can regulate the detailed structure of military criminal jurisdiction by law ( Article 96, Paragraph 2, Sentence 3 of the Basic Law). While the Courts Constitution Act only provides for judicial activity in Germany, it seems to be sensible and permissible for military criminal justice to also be able to act abroad.

Drawer laws

In the 1970s, drafts for a Military Criminal Court Code (WStGO) with an Introductory Act (EWStGO), a Military Justice Act (WJG) and administrative regulations for the military justice service were developed. These were called “pigeonhole laws” and could have been introduced into the legislative process at short notice in the event of a sudden defense situation and passed by the joint committee . The military courts should be linked to military command authorities, the judges wear uniform and be protected with combatant status under international law. The drafts provided for lay judges and a "higher defense court". The military criminal courts should take over the tasks of the military service courts. The place of jurisdiction would have been based primarily on whether a defendant belonged to a military service.

Military prosecutor and investigators

The establishment of a "military prosecutor's office" in the business area of ​​the Federal Ministry of Defense alongside the military criminal courts would be expedient and legal. Questionable to enhance competence would be military police force into a genuine military police , their relatives as identifying people in the military prosecutor's office could act. The Basic Law would currently not allow this.

Arguments for and against the establishment

Proponents put forward various arguments for the establishment of military criminal courts in peacetime. A military criminal jurisdiction would promote the maintenance of discipline, the constitution had created the possibility of its establishment, the ordinary courts could not adequately assess the specifics of the troops, a separate jurisdiction would benefit the speeding requirement, a disciplinary and criminal judgment could take place at the same time, a Establishing it only in the event of a defense would be too hasty and the military criminal courts could spatially follow the troops.

One proposal is to incorporate military criminal courts in peacetime as chambers and senates of ordinary jurisdiction and to use them for other cases. In the event of a defense, they would be declared independent military criminal courts by law, which would be possible because it is not their establishment, but their activity, that is fundamentally prohibited in peacetime.

Opponents of military criminal courts argue with the negative experiences during the Nazi era. They also fear that the severity of the sentence could depend on the military success of the troops in an armed conflict. The establishment would be a psychological preparation for a war and would be a war preparation of the judiciary. Only judges who are military-savvy and who therefore attach great importance to military requirements apply to military criminal courts. After all, the conditions in the military area are not so complex that a proper jurisdiction could very well decide fairly.

See also

literature

  • Karen Birgit Spring: Do we need military justice in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 .
  • Wei-Chung Li: Military criminal justice in the Republic of China (Taiwan) and the Federal Republic of Germany (dissertation University of Munich) . Munich 2002.
  • Knud Heuer: Military criminal justice for Bundeswehr soldiers sent abroad . In: NZWehrr . 1991, p. 189 f .
  • Martin Berg: Military criminal courts or military courts - To discuss the establishment of military criminal jurisdiction for the Bundeswehr against the background of the history of the German military courts . In: DRiZ . 1986, p. 128 ff .
  • Ulrich Vultejus: Combat suit under the robe - martial law of the second and third world wars . 2nd Edition. Buntbuch, Hamburg 1984, ISBN 3-88653-064-7 .
  • Eike Steinkamm: The military criminal jurisdiction in the Basic Law of the Federal Republic of Germany - an investigation of Art. 96 Abs. 2 GG from legal-historical, procedural, constitutional and international law point of view (= Julius-Maximilians-Universität Würzburg Institute for Military Law [Hrsg.]: Würzburger Wehrwissenschaftliche essays: series of the Institute of military law at the University of Würzburg . band 4 ). Holzner, Würzburg 1971.
  • Alfons Bobbert: Can the Bundeswehr do without military criminal courts in peacetime? In: Wehrwissenschaftliche Rundschau . 1970, p. 180 ff .
  • Joachim Bench: Do we need a military criminal jurisdiction . In: NZWehrr . 1968, p. 41 ff .
  • Joachim Bench: Thoughts on the structure of future military criminal courts . In: NZWehrr . 1968, p. 165 f .

Web links

  • Black robes, white necklaces - drawer laws for a military justice system in the Bundeswehr . In: Der Spiegel . No. 44 , 1987, pp. 125-128 ( online ).

Individual evidence

  1. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 26 .
  2. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 93 f .
  3. ↑ Eike Steinkamm: The military criminal jurisdiction in the Basic Law of the Federal Republic of Germany - an investigation of Article 96, Paragraph 2 of the Basic Law from a legal-historical, procedural, state and international law perspective (= Julius-Maximilians-Universität Würzburg Institute for Wehrrecht [Ed.]: Würzburger defense scientific papers: series of the Institute of military law at the University of Würzburg . band 4 ). Holzner, Würzburg 1971, p. 206 ff .
  4. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 95 f .
  5. ↑ Eike Steinkamm: The military criminal jurisdiction in the Basic Law of the Federal Republic of Germany - an investigation of Article 96, Paragraph 2 of the Basic Law from a legal-historical, procedural, state and international law perspective (= Julius-Maximilians-Universität Würzburg Institute for Wehrrecht [Ed.]: Würzburger defense scientific papers: series of the Institute of military law at the University of Würzburg . band 4 ). Holzner, Würzburg 1971, p. 170 ff .
  6. ↑ Eike Steinkamm: The military criminal jurisdiction in the Basic Law of the Federal Republic of Germany - an investigation of Article 96, Paragraph 2 of the Basic Law from a legal-historical, procedural, state and international law perspective (= Julius-Maximilians-Universität Würzburg Institute for Wehrrecht [Ed.]: Würzburger defense scientific papers: series of the Institute of military law at the University of Würzburg . band 4 ). Holzner, Würzburg 1971, p. 175 ff .
  7. ↑ Art. 84 III. Geneva Agreement. Retrieved January 14, 2019 .
  8. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 126 f .
  9. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 229 .
  10. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 127 ff .
  11. ↑ Ulrich Vultejus: Combat suit under the robe - martial law of the second and third world wars . 2nd Edition. Buntbuch, Hamburg 1984, ISBN 3-88653-064-7 .
  12. ↑ Black robes, white necklaces - drawer laws for a military justice system of the Bundeswehr . In: Der Spiegel . No. 44 , 1987, pp. 125-128 ( online ).
  13. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 204 f .
  14. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 238 ff .
  15. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 135 ff .
  16. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 139 .
  17. ^ Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 140 ff .