III. Order: "Service Personnel and the Parliamentary Commissioner"
A. Constitutional status of the Parliamentary Commissioner for the Armed Forces
1. The German Bundestag shall appoint the Parliamentary Commissioner for the Armed Forces as an auxiliary organ in exercising control over the armed forces. His tasks shall be to protect the basic rights of service personnel and to monitor compliance with the principles of Innere Führung.
Upon instructions from the Bundestag or the Defence Committee, the Parliamentary Commissioner may also investigate matters which serve neither the protection of basic rights nor the monitoring of compliance with the principles of Innere Führung. Details shall be regulated by the Law on the Parliamentary Commissioner for the Armed Forces (enacted pursuant to Article 45b of the Basic Law) as amended on 24 June 1982 and published in the Notification of 16 June 1982 (Federal Law Gazette I, p. 677 and Federal Ministry of Defence Gazette, p. 193).
B. Tasks and powers of the Parliamentary Commissioner
2. The Parliamentary Commissioner shall take action:
- upon instructions from the Bundestag or the Defence Committee to examine certain matters;
- on his own initiative and using his discretion if matters come to his attention which suggest a violation of the basic rights of service personnel or of the principles of Innere Führung.
3. In carrying out the tasks assigned to him the Parliamentary Commissioner shall have the following powers:
a) He may demand information and access to records from all agencies and personnel subordinate to the Federal Minister of Defence. He may be denied this right only on compelling grounds of secrecy.
b) If instructed by the Bundestag or the Defence Committee to investigate a certain matter, and, in the case of petitions based on a complaint, he may hear the petitioner as well as experts and witnesses.
c) He may, at any time, visit any units, headquarters, agencies and authorities of the Federal Armed Forces and their institutions, even without prior notice. The right to make such visits shall be vested exclusively in the person of the Parliamentary Commissioner. The Chief Administrator shall also exercise this right if authorised to do so by the Defence Committee. This right may only be denied on compelling grounds of secrecy.
d) He may attend proceedings of criminal courts, administrative courts and military service courts which are related to his areas of activity, even if they are not open to the public; in such cases he has the same right of access to records as the parties involved in the proceedings.
e) He may give the agencies concerned an opportunity to settle the matter.
f) He may refer a matter to the authority responsible for the institution of criminal or disciplinary proceedings.
With the exception of the right to make unannounced visits pursuant to Section 3c, the powers of the Parliamentary Commissioner may be exercised by his staff. Fact-finding visits by his staff shall be announced in advance.
C. Procedural arrangements
4. Matters relating to the Parliamentary Commissioner shall be dealt with as matters of urgency. Should an extended period of time be required to deal with such matters, the Parliamentary Commissioner shall be informed of progress at regular intervals by the agencies responsible for submitting a report.
Should, in the case of requests by the Parliamentary Commissioner for information or access to records, doubts arise as to:
- whether the matter in question suggests a violation of basic rights or the principles of Innere Führung or whether instructions have been issued by the Bundestag or the Defence Committee;
- whether compelling reasons of secrecy stand in the way of compliance with his requests;
or should, in the case of a visit by the Parliamentary Commissioner, doubts arise as to:
- whether compelling reasons of secrecy stand in the way of the visit;
a decision of the Federal Minister of Defence shall be sought immediately. The Parliamentary Commissioner shall be informed of this decision.
5. The following arrangements shall apply for dealing with requests submitted by the Parliamentary Commissioner:
a) If the Parliamentary Commissioner writes to service personnel of the Federal Armed Forces personally, the latter shall respond themselves.
b) If the Parliamentary Commissioner contacts an agency, the head of the agency shall be responsible for responding to the request; he shall sign the final report himself. The investigations shall be conducted by the disciplinary superior responsible in each case. Any deficiencies shall be remedied.
c) If higher superiors are asked to comment, they shall arrange for the matter in question to be examined and shall convey the findings, together with their own comments, to the Parliamentary Commissioner.
d) Command headquarters from division-level upwards and corresponding agencies shall, in the case of matters of fundamental or far-reaching importance, submit their comments to the Federal Minister of Defence, together with the principal records compiled, through official channels once they have been dispatched.
e) Furthermore, once they have been dispatched, all the comments made by agencies of the Federal Armed Forces shall be submitted to the Federal Minister of Defence, together with the main records compiled, through official channels if:
- the matter is of political or public significance;
- in the given case disciplinary or criminal proceedings are to be initiated.
f) Insofar as service personnel release doctors or medical experts from their duty to observe confidentiality in connection with their petitions to the Parliamentary Commissioner, this shall in case of doubt apply exclusively to comments made directly by them to the Parliamentary Commissioner. Copies of these comments, as well as annexes to them, which shall be submitted to other authorities, including the Federal Ministry of Defence, should therefore as a rule contain no facts or opinions which are subject to medical confidentiality.
If need be, comments to be submitted to the Parliamentary Commissioner should be drafted in such a way that statements subject to medical confidentiality are contained in a separate annex and conveyed solely to the Parliamentary Commissioner together with the original copy of the letter.
g) With regard to petitions, their content and corresponding comments, all concerned shall have a duty to observe confidentiality in accordance with Section 14 of the Military Personnel Act insofar as this does not concern the direct processing of petitions. The case may only be used for instruction purposes once the procedure has been completed. The names of those involved may not be divulged.
The procedure shall as a rule be deemed to have been completed if within two months of submitting a report no reply is received from the Parliamentary Commissioner. If the Parliamentary Commissioner provides notification that the procedure has been completed, this as well as the findings of his examination shall be made known to the agencies involved and to those persons affected by the petition.
h) Petitions transmitted by the Parliamentary Commissioner to agencies with a request for their comments may not be construed as constituting complaints within the meaning of the Military Complaints Regulations, unless the petitioner expressly so requests.
6. If the Parliamentary Commissioner exercises his right to hear petitioners, experts and witnesses (Section 3b), he shall be given every support in doing so. The Parliamentary Commissioner shall advise the petitioners, experts or witnesses as to their rights at the hearing; there shall be no obligation to give evidence. If necessary, service personnel shall be granted exemption from duty or special leave to attend the hearing in accordance with Section 9 of the Leave Regulations for Service Personnel.
Insofar as subjects are dealt with at the hearing which are subject to confidentiality, the person being heard may give evidence on matters up to classification level ?restricted? (VS-NfD). In the case of matters with a higher security classification, the Parliamentary Commissioner must obtain permission for the person in question to give evidence from the latter?s disciplinary superior.
If the competent disciplinary superior cannot grant permission, he shall request a decision by his superior. The right to deny permission shall rest ultimately with the Federal Minister of Defence.
The persons heard shall be reimbursed in accordance with the Law on the Reimbursement of Expenses and the Remuneration of Witnesses and Experts (as contained in the Notification of 1 October 1969 (Federal Law Gazette 1, p. 1756), as amended by Article 11 of the Law of 26 November 1979 (Federal Law Gazette 1, p. 1953 and 1980 p. 137). Witnesses shall file their requests for reimbursement with the Parliamentary Commissioner within three months after the hearing; experts shall do so within the time limit set by the Parliamentary Commissioner.
7. If the matter dealt with in a petition to the Parliamentary Commissioner is also the subject of a complaint lodged in accordance with the Military Complaints Regulations or the Military Disciplinary Code, the following shall apply:
a) If a member of the Armed Forces lodges a complaint in accordance with the Military Complaints Regulations, including a disciplinary complaint pursuant to section 38 of these regulations, and submits a petition in the same matter to the Parliamentary Commissioner, the Parliamentary Commissioner shall be informed of progress in dealing with the complaint. A copy of the decision shall be conveyed to him immediately. He shall be informed separately of any recourse to legal remedies or of the non-appealability of a ruling.
b) If the petition submitted to the Parliamentary Commissioner also refers to matters which are not a subject of the complaint, this part of the petition shall be dealt with in the same way as other petitions.
c) The Parliamentary Commissioner shall be informed if disciplinary investigations are initiated following submission of a petition to the Parliamentary Commissioner. On completion of the investigations he shall be informed of the findings. In the case of proceedings before a disciplinary court, he shall also be informed of any significant interim rulings.
8. With regard to the processing of cases which are referred by the Parliamentary Commissioner to agencies of the Federal Armed Forces with a request for them to deal with them on their own responsibility, the following shall apply:
a) If the case involves action against a member of the armed forces, it shall be referred to his immediate disciplinary superior. Other cases shall be referred to the agency responsible for assessing their content.
b) The agency named in Section 8a shall notify the person who made the submission through official channels. This notification may be disclosed orally by the disciplinary superior of the person who made the submission. The Parliamentary Commissioner shall be informed of the way in which the matter has been dealt with.
c) A petition to the Parliamentary Commissioner shall not be a substitute for legal remedies pursuant to the Military Complaints Procedure and the Military Disciplinary Code. Even if a petition to the Parliamentary Commissioner is to be regarded as a complaint or a request in accordance with the Military Complaints Regulations or the Military Disciplinary Code, the time limits stipulated therein shall be deemed to have been observed only if the petition is received by the agency responsible for the receipt of complaints and requests within the given time limit.
9. The Federal Minister of Defence shall be informed in writing of any field visits to be made by the Parliamentary Commissioner on special grounds (e.g. in the case of special incidents, or if several identical or similar petitions are submitted concerning the same unit). Such notifications shall take the following form:
Address:
Federal Ministry of Defence
cc.: staff of the service concerned
Re: field visit by the Parliamentary Commissioner on special grounds
- date and time
- unit
- location
- reason.
D. Notification of service personnel
10. All service personnel shall be informed about the tasks and powers of the Parliamentary Commissioner at the beginning of their basic training and again following their transfer to their units. They must be informed of the following in particular:
a) All service personnel have the right
to submit petitions to the Parliamentary Commissioner directly
without having to go through official channels. The address of the
Parliamentary Commissioner is:
Parliamentary Commissioner for the Armed Forces
Platz der Republik 1
11011 Berlin
b) Service personnel may only submit individual petitions to the Parliamentary Commissioner.
c) Anonymous petitions shall not be dealt with (Section 8 of the Law on the Parliamentary Commissioner for the Armed Forces).
d) If, before submitting their petitions, service personnel contact their disciplinary superiors, they shall receive advice and assistance. It shall be considered a disciplinary offence and a punishable act pursuant to Section 35 of the Military Penal Code if superiors seek by means of orders, threats, promises, or gifts, or in any other way running counter to service regulations, to persuade a subordinate not to submit a petition or to suppress petitions. Any attempt to do so shall also be subject to punishment and deemed to constitute a disciplinary offence.
e) Service personnel may not be disadvantaged in any way for submitting petitions to the Parliamentary Commissioner. If a petition contains insults or libellous remarks, this may be treated as a disciplinary offence or a punishable act.
f) Documents with a security classification higher than ?restricted? may not be appended to petitions to the Parliamentary Commissioner, nor may facts with such a higher security classification be contained in petitions to the Parliamentary Commissioner. If the petitioner is of the opinion that the Parliamentary Commissioner should be made aware of such circumstances, he may bring them to his attention.
E. Final remarks
11. The Federal Minister of Defence expects all superiors to cooperate with the Parliamentary Commissioner in a spirit of mutual trust and thus to enable him to gather any information he requires quickly and thoroughly. This will help foster service personnel?s understanding of our country?s constitutional and legal system as well as their confidence in democracy and in the Federal Armed Forces.
12. All disciplinary superiors are called upon to report on their experiences through official channels to the Federal Minister of Defence.
13. (Rescinded)
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