The right of service personnel to petition the Parliamentary Commissioner
All service personnel have the right to contact the Parliamentary Commissioner directly without going through official channels. In exercising their right of petition, service personnel can, without having to observe specific time limits, bring to the attention of the Parliamentary Commissioner any matter which they feel reflects wrong or unfair treatment. In contrast to complaints submitted in accordance with the Military Complaints Regulations, petitions do not have to be based on what is termed a “grievance”. For this reason, they can refer to the entire spectrum of official, personal and social problems service personnel may encounter in their everyday military routines. They include matters relating to the broad field of leadership and man management (e.g. rights and duties of service personnel, leadership style and behaviour, military training, and the application of disciplinary regulations, complaint regulations, duty-hour regulations and regulations regarding the representation of service personnel), aspects of personnel management in the case of regulars and temporary-career volunteers (e.g. questions relating to career paths, transfers and temporary duties, and assessments), matters of personal concern to service personnel (e.g. call-up, location and type of assignment, discharge), and matters relating to health care, accommodation, clothing and counselling as well as pay regulations and entitlements on leaving the armed forces.
Service personnel are not required to bring their concerns to the attention of the Parliamentary Commissioner themselves. Petitions addressing their concerns may also be submitted by comrades, elected spokespersons or family members; often, soldiers’ wives make submissions concerning difficulties within their families caused by their husbands’ duties. In such cases, the servicemen concerned are asked for their consent before the matter described in the petition is investigated.
All service personnel are informed about the functions and powers of the Parliamentary Commissioner when they begin training, and again when they are transferred to their parent units. Service personnel who submit petitions to the Parliamentary Commissioner may not be subjected to any disciplinary or discriminatory action for doing so. They are protected by their right of petition. Of course, this right does not cover assertions or claims which are clearly false, or of an insulting or slanderous nature. In such cases, the petitioner bears full responsibility under disciplinary regulations and criminal law. However, in exercising their right of petition, service personnel are given broad scope to express what are regarded as admissible views and opinions. The aim is to allow petitioners to unburden themselves without having to fear any backlash. Petitioners are protected against any punitive measures even if their submissions are based on exaggerations, mistaken conclusions or emotional rather than rational arguments. Civilian staff of the armed forces cannot submit petitions to the Parliamentary Commissioner. However, a matter made known by them may prompt him to take appropriate action. The same applies in the case of information received from persons outside the Bundeswehr.
As a rule, the review procedure for petitions is as follows:
The Parliamentary Commissioner checks whether the matter brought to his attention in the petition suggests a violation of the basic rights of service personnel or of the principles of Innere Führung. Should this be the case, the Parliamentary Commissioner requests comments from the agency in the purview of the Defence Minister which appears best placed to conduct an unbiased, expert and swift investigation into the matter described in the petition. In the case of petitions referring to relations between superiors and subordinates, this is normally a battalion-level agency. In the case of legally complex or very serious matters, division-level agencies are generally involved from the outset.
Once the Parliamentary Commissioner receives the comments and records he has requested, he reviews whether the investigations were conducted properly, whether evidence and the facts of the matter were correctly assessed, and whether any misconduct was appropriately sanctioned. If this is the case, the petitioner is notified of the results of the review. The relevant Bundeswehr agencies receive a copy of the Parliamentary Commissioner’s concluding letter.
In the vast majority of cases, the investigations and comments of the agencies concerned satisfy the Parliamentary Commissioner’s requirements. Nevertheless, there are many cases in which another higher-level agency is requested to conduct further investigations. Sometimes, even the Defence Minister himself is requested by the Parliamentary Commissioner to comment on the matter at hand. Understandably, this is primarily the case when a petition refers to issues of fundamental or special political importance.
If, parallel to the submission of a petition, proceedings under military complaints regulations, disciplinary regulations, criminal law or civil administrative litigation are pending, it is standard practice, in view of the separation of powers, for the Parliamentary Commissioner generally not to interfere by submitting his own assessment of the case. He suspends his investigations until a non-appealable ruling has been made. An exception is conceivable if a given incident provides grounds for considerations and conclusions which extend beyond the confines of the matter in question.
Understandably, the Parliamentary Commissioner’s performance of these two functions - exercising control over the Bundeswehr and reviewing the petitions of service personnel - is not always free of conflict. As an organ of parliamentary control, it is his task to ensure that the constitution and federal laws are complied with. In this context, compliance with regulations which are designed to ensure the operational readiness of the Bundeswehr occasionally clashes with the personal interests of petitioners.
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