Members of the German armed forces are subject to the civil criminal code and are tried for common criminal offenses in the civil court system. There are no military correction facilities; incarcerated military offenders serve their sentences in ordinary civilian prisons. Soldiers enjoy the same civil rights and liberties possessed by other citizens. They are permitted to take an active part in political life, be members of political parties, and join trade unions and professional associations. Several courses of action are open to soldiers with complaints or grievances, both within the Bundeswehr and in ordinary courts of law.
Offenses of a specifically military character committed by members of the Bundeswehr are tried in two military court divisions of the Federal Administrative Court and by three military disciplinary courts having a total of twenty-nine chambers. A civilian professional judge presides over each chamber, assisted by honorary military judges. The chambers are the courts of first instance for disciplinary court proceedings against soldiers. The military courts of the Federal Administrative Court are the courts of appeal, each being composed of three civilian judges and two honorary military judges. Sentences range from discharge from service to financial penalties to reduction in rank. The lowest level of offense, such as disobedience or unauthorized absence, may be dealt with informally in a soldier’s own unit.
The German system of administering criminal justice to the military has undergone little change since its creation, and none of these changes have eliminated the fundamental principle of subjecting military personnel to the courts of ordinary jurisdiction for the trial of ordinary criminal offenses. In 2008, the rules governing disciplinary proceedings against soldiers were reformed. This reform, however, had no impact on the prosecution of criminal offenses committed by military personnel.
A more significant change was enacted in 2013, through the Act for Venue for Armed Forces Especially Deployed Abroad. This Act establishes a special venue for the criminal offenses of soldiers thus deployed. Such offenses are now to be tried in the courts of the city of Kempten (in Bavaria). The qualifying special deployment within the meaning of this provision is described in section 62 of the Soldier’s Act as having occurred on the basis of an international agreement and upon a formal decision of the Federal Cabinet.
This special venue for the offenses of deployed soldiers was created after Germany had encountered much difficulty in trying offenses committed abroad, particularly because prosecutors had difficulty investigating such offenses in that they lacked the necessary experience and understanding of the circumstances under which offenses were committed, often in combat settings. This difficulty began to be noticed after German soldiers were first deployed abroad, beginning in the early 1990s. An interim solution was found in 1994 by entrusting the prosecutors of the City of Potsdam with the investigation of the offenses of the deployed forces. This was done on the basis of an agreement of the chief prosecutors of the German states. A statutory solution was deemed preferable, however.
