Das österreichische Militärstraf- und Heeresdisziplinarrecht
im Lichte von Art. 5 und 6 EMRK

Austrian Military Penal and Disciplinary Codes and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) with Regard to the German Theory of the Special Condition of Close Interdependences.

Short English Summary

Titelseite   Einleitung   Teil G
Einfach zum Nachdenken   Teil A   Teil H
Inhaltsverzeichnis   Teil B   Schlußbemerkungen
Rechtliches   Teil C   Anhang A: EMRK
Vorwort   Teil D   Anhang B: HDG 1994
Abkürzungsverzeichnis   Teil E   Curriculum vitae
Literaturverzeichnis   Teil F   Zur Übersicht

A) Discipline

Although everybody is supposed to have his own personal idea of this term's meaning, juridical literature widely lacks concise statements on discipline. Unlike some law systems of other countries as e.g. Switzerland, Austrian disciplinary codes do not provide any legal definition of discipline either. As common prejudice often reduces discipline to simple obedience which, however, is only a result of same, the following argumentation shall lead to a more substanciated definition and illustrate the general necessity of discipline.

Any community of human beings (starting with the relationship of a married couple and ending with a society itself or even the community of states within the United Nations) needs certain rules to serve its purpose. One of the basic requirements of a democratic system concerning law and order is that these rules are — directly or indirectly — made by (at least a majority of) those who are subjects to them. Thus, every democratically made legal regulation is based on the subjects' general opinion of good and evil.

The motivation to meet these rules volutarily, while being conscious of the fact that a constant surveillance of every subject is impossible, and that insubordination does not necessarily result in (immediate) punishment, is called discipline. As a consequence, discipline can be defined as "the individual's social conscience".

The required amount of discipline is directly proportional to the amount of responsibility that falls into a person's share concerning society. Nobody, for example, will be bothered by a person getting drunk in his own appartment all alone by himself; yet, being a party guest, the same person is expected to behave in a civilized manner despite his consume of alcohol. Driving a car, he is expected to meet the blood alcohol standards that strongly restrict the legal consume of alcohol. If, however, the person concerned is a surgeon on duty, he is expected to be absolutely sober in order not to endanger other persons' lives.

Transferred to military standards, discipline enables soldiers to meet their duties (not only regarding the respective state or society but also those concerning their comrades) by volunteering submission to their superiors' orders and by conscious and responsible obedience.

Thus, discipline is not only a soldier's means to survive in military action but also the society's guarantee for an effective defense of its existence and democratic constitution.

B) On Legal Justification of Restrictions of Human Rights

The definition of discipline given above indicates the existence of a special condition of close interdependence between the society and every single soldier. Unless a democratic system shall not be broken up and transformed to disorder, anarchy and chaos, a society's military, economic, social and/or intellectual defense must be an essential point of public interest.

Therefore every democratic society has to make sure that it may rely on the citizen's general peacetime discipline as well as on the soldier's special discipline during times of crisis in order to maintain its own continuing existence and functioning order and thus to guarantee the human rights of its individual members.

As the individual's human rights cannot exist without a society that accepts and guarantees these human rights,under certain circumstances some restrictions in that respect are doubtlessly justified in order to maintain and/or protect this guaranteeing option. These restrictions, however, are limited by their own purpose, otherwise they might end in themselves and thus support the elimiation of a society's democratic system by incapaciating its citizens.

C) The Case Engel and Others Before the European Court of Human Rights (EC/HR)

In 1976 the EC/HR has definitely stated that the guarantees of the ECHR are to be applied not only to civilians but also to members of armed forces. However, certain restrictions are accepted within the military condition of interdependence according to Article 4 para. 3 pt. b and Article 11 para. 2 ECHR on the basis of corresponding national (constitutional) laws that meet the requirements of the Convention.

The Court has also made clear that it is any Signatory State's choice to subsume neglects of soldiers under either military penal or disciplinary codes (or even both) as long as this choice is not abused to circumvent the guarantees of the ECHR concerning especially criminal law. The EC/HR states its competence of judgement in this case.

D) On the Proceedings According to the Disciplinary Code for Austrian Armed Forces (1994)

Due to constant, numerous and various criticism because of violations of human rights, above all of Articles 5 and 6 ECHR, many legal provisions have been changed in the actual Austrian Disciplinary Code for Armed Forces, as e.g. the provisions on the preliminary arrest; taking into account the jurisdiction of the EC/HR, especially regarding the Engel Case, its peacetime regulations can now be accepted as compatible with the ECHR in that respect. However, some general points still remain to be criticized.

Personal jurisdiction on the one hand depends on the status of the accused soldier (as there are soldiers absolving their basic military service, or non–commissioned, or regular officers, or time soldiers), on the other hand it is determinated by the moment of the offence, which means that peacetime personal jurisdiction differs from the one during military missions; depending on the rank of the suspected soldier, either the commanding officer or a special commission has to exercise the competence of jurisdiction. Thus, unfortunately the provisions concerning personal jurisdiction are rather numerous and complicated, especially in comparison for example with the Swiss "Dienstreglement". The respective instructions during the basic military service are normally rather poor, and even high ranked officers often do not know the basic provisions concerning their competences.

The level of the disciplinary sanctions depends on whether the suspected soldier immediately admits the neglects he is accused of (which results in abbreviated proceedings before the commanding officer with low–level sanctions), on the rank of the accused soldier, and on whether the offence has been committed in peacetime or during military action (the latter would result in immediate short proceedings before the commanding officer with high level sanctions).

E) Incompatibilities of the Provisions Concerning Soldiers' Neglects During Military Action with Articles 5 and 6 ECHR

Although the Disciplinary Code grants the accused soldier some minimal rights concerning Art. 5 and 6 ECHR, as e.g. the guarantee of a second stage of appeal, and the prohibition of the so–called "reformatio in peius" at any stage, many provisions regarding offences during military action cannot be egarded as compatible with Art. 5 and/or Art. 6 ECHR.

The following enumeration can just list up the most important points to be criticized:

  • a) The maximum duration of (legal) detention of 504 hours seems to be not a disciplinary sanction but an alternative punishment which may be considered as a circumvention as mentioned above.

  • b) The competent commanding officer cannot be considered as "independent" in the sense of Art. 6 para. 1 ECHR.

  • c) The Austrian Disciplinary Code does not allow any public hearing which is also a violation of Art. 6 para. 1 ECHR.

  • d) During military action, the legal assistance of the accused soldier may only be chosen from among other soldiers which certainly limits the quality of his defense.

  • e) Generally, the provisions of article 82 para. 2 sections 1 and 2 of the Austrian Disciplinary Code which allow the departure from peacetime regulations and guarantees under certain conditions may easily be abused to circumvent any of the guarantees included in the Austrian Disciplinary Code and the ECHR in proceedings during military missions which can never be justified by military necessities.

As all these deviations and any violations of basic human rights endanger the solier's morale and discipline, a disciplinary code that is compatible with the provisions of the ECHR shout be considered as a military necessity itself.

Table of Contents ... (German only)
Back to the homepage ... (German only)

To the top of this page ...
To the table of contents ...

Die Besucherstatistik
für diese Seiten seit
29. April 2005:

Homepage ToolsXStat.de

Version Nr. 2/2016 vom 14. August 2016
Für den Inhalt verantwortlich: Christoph M. Ledel
© 1994/1998–2016 by Christoph M. Ledel — Wien / Österreich
Alle Rechte vorbehalten! — All Rights Reserved! — Touts droits réservés!

Seitengestaltung von Christoph M. Ledel