Revised Version of the German Military Complaints Regulations

Transcription

1 Page FMOD Gazette (Translation) No FMOD Gazette p. 2 Revised Version of the German Military Complaints Regulations With Article 5, Act to Amend Military Law and other regulations (2008 Military Law Amendment Act WehrRÄndG 2008) of 31 July 2008 (Federal Law Gazette (Bundesgesetzblatt - BGBl.) I p. 1629) 1, which came into force on 9 August 2008, numerous changes to the Military Complaints Regulations (Wehrbeschwerdeordnung WBO) were promulgated, which will come into force on 1 February The objective of these changes is, in particular, to continue to improve the legal protection of Service personnel and to adapt it procedurally to the generally available legal remedy options as far as the special nature of the specific military complaints legislation permits. The wording of the Military Complaints Regulations of 22 January 2009 (BGBl. I p. 81), as amended as of 1 February 2009, is promulgated hereinafter. Because legal protection is of great importance for Service personnel, the most important amendments are outlined below (the section numbers below refer exclusively to the new version): 1. The time limit for submitting a complaint and a further complaint (previously two weeks, respectively) is extended to one month, respectively (Section 6 subsection (1), Section 16 subsection (1) of the Military Complaints Regulations). The same applies to applications filed to the Bundeswehr Disciplinary and Complaints Court (Section 17 subsection (4), first sentence, of the Military Complaints Regulations). 2. The time limit for submitting a complaint if the time limit has not been observed due to an inevitable coincidence previously three days is extended to two weeks after the impediment has ceased to exist (Section 7 subsection (1) of the Military Complaints Regulations). 3. As a general rule, complaints in administrative matters will have a suspensive effect; this does not apply to complaints against decisions on the commencement, conversion or termination of a service status (Section 23 subsection (6) of the Military Complaints Regulations). Complaints in unit matters and further complaints do not have such suspensive effect (Section 3 subsection (1), first sentence, Section 16 subsection (4) of the Military Complaints Regulations). The agency responsible for deciding on the complaint should, however, in all cases examine even if the complainant has not filed an appropriate application whether the execution of the order and/or implementation of the measure should be suspended until the complaint has been decided on or whether other interim measures are to be taken. If such application is rejected, the complainant may have recourse to the Military Service Court (Section 3 subsection (3) of the Military Complaints Regulations). 4. A complaint can also be withdrawn verbally for the record (Section 8 subsection (1) of the Military Complaints Regulations). 5. If a complaint in unit matters is successful, it must be decided in the complaint notice whether the complainant is to be reimbursed the necessary expenses incurred in pre-court complaint proceedings (Section 13 subsection (4), Section 16a of the Military Complaints Regulations). In this case, the expenses incurred for an authorized agent will only be reimbursed if it was necessary to consult them (Section 16a subsection (3) of the Military Complaints Regulations). The decisions to be taken in future pursuant to Section 16a of the Military Complaints Regulations are explained in the decree "Decision on Necessary Expenses and Costs Incurred in Pre-Court Complaint Proceedings in Accordance with Section 16a of the Military Complaints Regulations (Expenses Decree)" of 30 January 2009 (FMOD Gazette p. 8). The decree will be integrated into German Joint Service Regulation ZDv 14/3 under C Fundamental legal issues may be brought before the Federal Administrative Court, which serves as the second instance: The complainant and the Federal Ministry of Defence (FMOD) will be given the option to file an appeal with the Federal Administrative Court against the order issued by the Bundeswehr Disciplinary and Complaints Court if such complaint has been permitted in the decision of the Bundeswehr Disciplinary and Complaints Court (Section 22a of the Military Complaints Regulations). If it is not permitted, an appeal against refusal of leave to appeal may be filed with the Federal Administrative Court (Section 22b of the Military Complaints Regulations). 1 Not published in the FMOD Gazette (VMBl).

2 Page FMOD Gazette (Translation) No. 1 Since there is no legislative interim arrangement, the above amendments will apply to all decisions to be taken from 1 February 2009 onwards. If a timeframe to be calculated in accordance with the applicable law has elapsed on that day, the matter will rest there. All legislative changes included in the 2008 Military Law Amendment Act will be taken into account in the reprint of Joint Service Regulation ZDv 14/3, which will appear shortly. FMOD, 30 January 2009 R I 5 File Ref /-01/I 50008

3 Page FMOD Gazette (Translation) No. 1 Promulgation of the Revised Version of the German Military Complaints Regulations as of 22 January ) Pursuant to Article 17 of the 2008 Military Law Amendment Act of 31 July 2008 (Federal Law Gazette BGBl. I p. 1629) 2), the wording of the Military Complaints Regulations of 1 February 2009 as amended is promulgated hereinafter. The revised version takes the following provisions into account: 1. The Act as published on 11 September 1972 (BGBl. I p ), 1906), 2. Article 3 Number 2 of the Act of 16 January 1991, which came into force on 22 January 1991 (BGBl. I S. 47) 4), 3. Article 7 of the Act of 19 December 2000, which came into force on 24 December 2000 (BGBl. I p. 1815) 5), 4. Article 7a of the Act of 16 August 2001, which came into force on 1 January 2002 (BGBl. I p. 2093) 2), 5. Article 13 of the Act of 22 April 2005, which came into force on 30 April 2005 (BGBl. I p. 1106) 2), 6. Article 2 paragraph (9) of the Act of 12 August 2005, which came into force on 1 February 2006 (BGBl. I p. 2354) 2), 7. Article 5 of the Act referred to above, which will come into force on 1 February Bonn, 22 January 2009 The Federal Minister of Defence F. J. Jung German Military Complaints Regulations Table of Contents Section 1 Section 2 Section 3 Section 4 Section 5 Section 6 Section 7 Section 8 Section 9 Section 10 Section 11 Right of Complaint Prohibition of Discrimination Effect of Complaints Mediation and Discussion Submission of Complaints Timeframe for and Forms of Complaint Failure to Observe Timeframes Withdrawal of Complaints Responsibility for Complaint Notices Preparation of Decisions Complaints in Remote Units 1) Published on 30 January 2009 (Federal Law Gazette BGBl. I p. 81). 2) Not published in the FMOD Gazette (VMBl). 3) FMOD Gazette p ) FMOD Gazette p. 70 5) 2001 FMOD Gazette p. 40

4 Page FMOD Gazette (Translation) No. 1 Section 12 Section 13 Section 14 Section 15 Section 16 Section 16a Section 17 Section 18 Section 19 Section 20 Section 21 Section 22 Section 22a Section 22b Section 23 Section 23a Section 24 Complaint Notices Contents of Complaint Notices Scope of Investigation Proceedings in the Event of Termination of Service Further Complaints Necessary Expenses and Costs Incurred in Pre-Court Proceedings Applications for Rulings by the Bundeswehr Disciplinary and Complaints Court Proceedings of the Bundeswehr Disciplinary and Complaints Court Contents of Decisions Necessary Expenses and Costs Incurred in Proceedings before the Bundeswehr Disciplinary and Complaints Court Decisions of the Federal Minister of Defence Decisions of Service Chiefs of Staff Appeals Appeals Against Refusals of Leave to Appeal Preliminary Administrative Court Proceedings Supplementary Provisions Entry into Force Section 1 Right of Complaint (1) Service personnel have the right to lodge a complaint if they believe that they have been treated wrongly by superiors or by Bundeswehr agencies or have been harmed as a result of breach of duty by fellow soldiers. The right of spokespeople to lodge complaints is governed by the German Military Personnel Representation Act (Soldatenbeteiligungsgesetz). 1) 1) 1997 FMOD Gazette p. 128

5 Page FMOD Gazette (Translation) No. 1 (2) Service personnel may also lodge a complaint on the basis that they have not received a reply to an application they have filed within a month. (3) Former soldiers also have the right to lodge a complaint after completing their military service if the reason for the complaint arose during their military service. (4) Joint complaints will be inadmissible. The right of petition pursuant to Article 17, German Basic Law is thus limited. Section 2 Prohibition of Discrimination No one may be officially reprimanded or put at a disadvantage for not having submitted her or his complaint through the prescribed channels or within the prescribed time, or for having lodged an unfounded complaint. Section 3 Effect of Complaints (1) A complaint in unit matters will have no suspensive effect. Lodging the complaint will not, in particular, exempt from the duty to execute an order against which the complaint is directed. Section 11, Legal Status of Military Personnel Act (Soldatengesetz) 2) will remain unaffected. (2) However, the agency responsible for taking the decision should examine even without any application submitted by the complainant whether the execution of the order or implementation of a measure is to be suspended until the complaint has been decided or whether other interim measures are to be taken. If an appropriate application is rejected, the complainant may apply for a ruling by the Military Service Court. Section 4 Mediation and Discussion (1) Before lodging a complaint, complainants can apply to a mediator if they feel personally offended and an amicable settlement seems possible to them. (2) An application to the mediator may not be made before a night has passed, but must be made within a week after the complainant has acquired knowledge of the reason for the complaint. (3) Complainants should choose as a mediator a soldier whom they personally trust and who is not himself involved in the matter. The person applied to as a mediator may only reject the role of mediator for an important reason. Immediate superiors of the complainant or of the person against whom the complaint is directed (the person concerned), may not assume the role of mediator. (4) The mediator should familiarize himself with the facts of the case in personal consultation with those involved and attempt to bring about a settlement. (5) If the complainant asks the person concerned to discuss the matter prior to or instead of a mediation, the person concerned must give them the opportunity to explain their point of view. (6) Mediation or discussion does not affect the timeframe for a complaint. Section 5 Submission of Complaints (1) Complaints should be submitted to the complainant's immediate disciplinary superior. If another agency is responsible for taking the decision, the complaint may also be submitted there. (2) Soldiers receiving inpatient treatment at a Bundeswehr hospital may also submit complaints to the commander of the Bundeswehr hospital. Service members who are at Bundeswehr correctional facilities for the purpose of enforcement may also submit complaints to their correctional superiors. (3) If the immediate disciplinary superior or the agencies referred to in paragraph 2 are not themselves responsible for deciding a complaint submitted to them, they must forward it directly to the responsible agency without delay. 2) 2005 FMOD Gazette p. 81

6 Page FMOD Gazette (Translation) No. 1 Section 6 Timeframes for and Forms of Complaints (1) A complaint may not be lodged before a night has passed, but must be lodged within a month after the complainant has acquired knowledge of the reason for the complaint. (2) A complaint may be lodged in writing or verbally. If it is presented verbally, it must be recorded in writing and signed by the recording person and should also be signed by the complainant. A copy of the transcript must be handed over to the complainant on demand. Section 7 Failure to Observe Timeframes (1) If complainants are prevented from observing a timeframe due to military duty, natural disasters or any other inevitable coincidences, the timeframe will not expire until two weeks after the obstacle has been removed. (2) It must also be deemed an inevitable coincidence if prescribed information on available legal remedies has been omitted or is incorrect. Section 8 Withdrawal of Complaints (1) A complaint can be withdrawn by written or verbal statement at any time. Section 6 subsection (2), second and third sentences will apply mutatis mutandis. The statement must be submitted to the immediate disciplinary superior or other agency responsible for taking the decision. As a result, this complaint will then be considered settled. (2) The superior's duty to rectify any deficiencies in the context of command supervision will continue to apply. Section 9 Responsibilities for Complaint Notices (1) A complaint will be decided by the disciplinary superior who has to appraise the object of the complaint. Complaints against agencies of the Federal Defence Administration will be decided by the next higher agency. (2) If the Federal Minister of Defence has to decide on complaints in unit matters, his deputy may sign the decision on the complaint; the Federal Minister of Defence may further delegate signing authority. Complaints in administrative matters will be decided by the Federal Minister of Defence as the supreme authority. (3) If the chain of command of the person concerned (Section 4 subsection (3), third sentence) has changed and the complaint is directed against himself, responsibilities will be transferred to the new superior of the person concerned. (4) In cases of doubt, the next common superior will determine who has to decide. Section 10 Preparation of Decisions (1) The superior in charge of deciding the matter will clarify the facts by holding negotiations verbally or in writing. He may delegate the clarification of the facts to another officer. In cases of minor importance, the superior in charge of deciding the matter may also task the company sergeant major or non-commissioned officer in an equivalent position with the questioning of witnesses if these are soldiers of other ranks or junior non-commissioned officers. The contents of verbal negotiations must be recorded in a brief summary report. (2) In the case of complaints in specialist matters, the opinion of the next higher specialist authority must be obtained if it is not itself responsible for taking the decision. (3) The involvement of spokespeople will be governed by the German Military Personnel Representation Act. 1)

7 Page FMOD Gazette (Translation) No. 1 Section 11 Complaints at Remote Units If the disciplinary superior responsible for taking the decision is not present at remote units, aboard vessels or in similar cases and cannot be contacted in writing by ordinary mail, the following will apply: a) The complainant can submit a complaint as soon as the impediment has ceased to exist. In this case, the timeframe for submitting a complaint will not elapse until two weeks after the impediment has been removed. b) Complaints can also be submitted to the most senior officer present. He must prepare the decision on the complaint in accordance with Section 10 above and, after the impediment has been removed, forward the records to the agency responsible for taking the decision without delay. He can take measures in accordance with Section 3 subsection (2) above. Section 12 Complaint Notices (1) A complaint will be decided in writing. The notice must state the grounds on which it is based. It must be served on the complainant in accordance with the provisions of the German Military Disciplinary Code (Wehrdisziplinarordnung) 3), and the person concerned (Section 4 subsection (3), third sentence) must also be notified thereof. If the complaint is rejected, the complainant must be provided with written information on the permissible legal remedy, the agency where the legal remedy is to be filed and the timeframe to be observed. (2) If the appraisal of an issue that is to be decided in other proceedings is of key importance for deciding the complaint, complaint proceedings may be suspended until the other proceedings have been concluded, provided that this does not result in an unreasonable delay. The complainant will be notified of the suspension. If the complaint is not settled by the outcome of the other proceedings, the complaint must be dealt with further. (3) If the complaint has not been received within the required timeframe by an agency to which it can be submitted in accordance with these Regulations, it must be rejected with reference to this defect. Nevertheless, it must be examined; where necessary, remedial action should be taken. Section 13 Contents of Complaint Notices (1) If the complaint proves to be well-founded, it should be upheld and remedial action taken. In this case, inadmissible or improper orders or measures must be cancelled or changed. If an order has already been carried out or settled in any other way, it must be explicitly stated that it would not have been permissible. This will also apply mutatis mutandis to other measures and omissions if the complainant has a legitimate interest in this finding. Measures that have been wrongly omitted must, where still possible, be implemented and requests or applications that have been wrongly dismissed must be approved. In the case of a complaint pursuant to Section 1 subsection (2) above, the matter must be decided on the merits. (2) If it proves that a disciplinary offence has been committed, the procedures of the German Military Disciplinary Code 3) will apply. The complainant must be notified as to whether a disciplinary measure has been taken against the person concerned or whether a disciplinary measure has been dispensed with. (3) If the complaint is unfounded, it should be rejected. (4) If a complaint is upheld, a decision should also be taken as to the reimbursement of necessary expenses and as to the necessity of consulting an authorized agent. Section 14 Scope of Investigation The investigation of a complaint must always seek to identify possible inadequate command supervision or other shortcomings in the course of duty. 3) 2007 FMOD Gazette p. 99 note

8 Page FMOD Gazette (Translation) No. 1 Section 15 Proceedings in the Case of Termination of Service The continuation of proceedings will not be affected by the fact that the complainant's period of service terminates after submitting the complaint. Section 16 Further Complaints (1) If a complaint in unit matters is unsuccessful, the complainant can submit a further complaint within one month after service of the complaint notice. (2) A further complaint may also be submitted if the complaint has not been decided within one month. (3) The next higher disciplinary superior will be responsible for deciding a further complaint. (4) The provisions on complaints will apply to further complaints mutatis mutandis. Section 16a Necessary Expenses and Costs Incurred in Pre-Court Proceedings (1) Pre-court proceedings begin with a complaint being lodged. This is free of charge. (2) If a complaint in unit matters is successful, the complainant should be reimbursed for the necessary expenses incurred by appropriate litigation or legal defence. (3) The fees for a lawyer or any other authorized agent will only be eligible for reimbursement if such consultation was necessary. (4) If the complaint is remedied prior to the issue of a complaint notice, paragraphs 1 to 3 will apply mutatis mutandis, taking the current status into consideration. (5) The decision on the reimbursement of necessary expenses and on the necessity of consulting an authorized agent can be contested by applying to the Bundeswehr Disciplinary and Complaints Court. Section 17 subsection (4) below will apply accordingly. The presiding judge of the division of a Bundeswehr Disciplinary and Complaints Court will take a final decision on the matter by issuing a ruling. If the Federal Minister of Defence or a Service chief of staff or a superior in a comparable position issues the complaint notice, the first to third sentences of this paragraph will apply mutatis mutandis, with the proviso that the Federal Administrative Court takes the place of the Bundeswehr Disciplinary and Complaints Court. (6) Section 140 subsection (8) and Section 142 of the German Military Disciplinary Code 3) will apply mutatis mutandis. Section 17 Applications for a Ruling of the Bundeswehr Disciplinary and Complaints Court (1) Wherever a further complaint is unsuccessful, complainants can apply for a ruling by the Bundeswehr Disciplinary and Complaints Court if their complaint concerns a violation of their rights or a breach of duty committed by a superior towards them, which are governed by the Second Subsector of the First Part of the German Legal Status of Military Personnel Act 2), with the exception of Sections 24, 25, 30 and 31. The application may also be filed if the further complaint has not been decided on within one month. (2) In this regard, proceedings before the Bundeswehr Disciplinary and Complaints Court will take the place of recourse to the administrative courts pursuant to Section 82, Legal Status of Military Personnel Act 2). (3) The application can only serve to assert the claim that an official measure or its omission was unlawful. The measure in question will also be considered unlawful if the complainant has been harmed by anyone exceeding or abusing his official powers. (4) The application must be filed in writing or verbally for the record with the Bundeswehr Disciplinary and Complaints Court of jurisdiction within one month after service of the notice dismissing the complaint or after expiry of the timeframe as defined in the second sentence of paragraph 1. In doing so, the complainant must state the facts and evidence serving to justify the application, enclosing the complaint notice and the notice of the further complaint. The timeframe will also be granted if the application is filed with the immediate disciplinary superior or, in the cases referred to in Section 5 subsection (2) above and under letter b of Section 11 above, with the superiors as defined there. The application must be submitted to the Bundeswehr Disciplinary and Complaints Court without delay. The Bundeswehr Disciplinary and Complaints

9 Page FMOD Gazette (Translation) No. 1 Court that has been established for the area of command to which the person concerned belongs at the time the reason for the complaint arises will have jurisdiction. (5) After one year has passed since a further complaint was lodged, applying to the Bundeswehr Disciplinary and Complaints Court will be excluded. Section 7 above will apply mutatis mutandis. (6) The application will have no suspensive effect. The Bundeswehr Disciplinary and Complaints Court in urgent cases its presiding judge may decree the suspensive effect at the request of the complainant or ex officio after consultation with the responsible disciplinary superior. The decree may already be issued before the application for a court ruling is filed if the responsible disciplinary superior has dismissed an application pursuant to Section 3 subsection (2) or has not suspended implementation within a timeframe fixed by the Bundeswehr Disciplinary and Complaints Court. Section 18 Proceedings of the Bundeswehr Disciplinary and Complaints Court (1) The composition of the Bundeswehr Disciplinary and Complaints Court will depend on the rank of the complainant. (2) The Bundeswehr Disciplinary and Complaints Court must clarify the facts ex officio. It can take evidence in the same way as in judicial disciplinary proceedings. It will decide without a hearing, but can call for a hearing if it deems it necessary. When the evidence has been taken, the Bundeswehr Disciplinary and Complaints Court must notify the complainant and the person concerned of the results of the evidence and within a timeframe to be fixed by the court, which must be at least three days give them the opportunity to inspect records and to make comments. The Bundeswehr Disciplinary and Complaints Court will decide by issuing a ruling, which must be served on the complainant and the Federal Ministry of Defence in accordance with the provisions of the German Military Disciplinary Code 3) and notification thereof given informally to the person concerned. The decision must state the grounds on which it is based. (3) If the Bundeswehr Disciplinary and Complaints Court holds that another court has jurisdiction, it will refer the matter to that court. The decision is binding. (4) The Bundeswehr Disciplinary and Complaints Court can submit legal issues of fundamental importance to the Federal Administrative Court for decision if the former deems this necessary for the development of the law or for ensuring uniform administration of the law. The Military Affairs Divisions of the Federal Administrative Court composed of three judges and two honorary judges, respectively, will take a decision by issuing a ruling. Before the decision is taken, the Disciplinary Attorney General for the Armed Forces must be given the opportunity to make a statement. A decision on the matter in hand is binding for the Bundeswehr Disciplinary and Complaints Court. Section 19 Contents of Decisions (1) If the Bundeswehr Disciplinary and Complaints Court deems an order or measure against which the application is directed to be unlawful, it will cancel that order or measure. If an order has already been carried out or settled in any other way, it must be pronounced to have been unlawful. This will also apply mutatis mutandis to other measures or omissions if the complainant has a legitimate interest in this finding. If the Bundeswehr Disciplinary and Complaints Court deems the rejection of an application or the omission of a measure to be unlawful, it will express the obligation to grant the application or to take other action, observing the court's interpretation of the law. (2) If the complainant has been injured by a disciplinary offence, the Bundeswehr Disciplinary and Complaints Court will also express the obligation to proceed in accordance with the German Military Disciplinary Code 3). Section 20 Necessary Expenses and Costs Incurred in Proceedings before the Bundeswehr Disciplinary and Complaints Court (1) If an application for a ruling by the Bundeswehr Disciplinary and Complaints Court is granted, the necessary expenses incurred in proceedings before the Bundeswehr Disciplinary and Complaints Court, including pre-court proceedings, will be imposed on the Federal Government. This will not apply to necessary expenses incurred to the complainant by culpable default. (2) The costs of proceedings in the Bundeswehr Disciplinary and Complaints Court can be imposed on the complainant if the court deems the application to be obviously inadmissible or obviously unfounded. The

10 Page FMOD Gazette (Translation) No. 1 costs of proceedings caused by culpable default will be imposed on the complainant. (3) If the application for a court ruling has become irrelevant, paragraphs 1 and 2 will apply mutatis mutandis, considering the facts known so far. (4) Section 137 subsections (1) and (2), numbers 1 to 3, Section 140 subsection (8), Section 141 subsections (1) and (2) and Section 142, German Military Disciplinary Code 3) will apply mutatis mutandis. Section 21 Decisions of the Federal Minister of Defence (1) The complainant can directly apply for a ruling by the Federal Administrative Court against rulings or measures of the Federal Minister of Defence, including rulings on complaints or further complaints. Applications must be filed with the Federal Ministry of Defence. (2) Sections 17 to 20 above will apply mutatis mutandis to applications for rulings by the Federal Administrative Court and to the proceedings. Section 20 subsection (4) above in conjunction with Section 142, German Military Disciplinary Code 3) will apply with the proviso that the Federal Administrative Court takes the place of the Bundeswehr Disciplinary and Complaints Court. (3) In derogation of the of Section 17 subsection (4), fourth sentence, the Federal Ministry of Defence will submit the application together with a comment. In all other respects, the Federal Minister of Defence will be represented by the Disciplinary Attorney General for the Armed Forces in proceedings before the Federal Administrative Court. Section 22 Decisions of Service Chiefs of Staff Section 21 subsections (1) and (2) and subsection (3), second sentence will apply mutatis mutandis to rulings of the Service chiefs of staff and superiors in comparable positions on further complaints. Section 22a Appeals (1) The complainant and the Federal Ministry of Defence will have the option to file an appeal against the order issued by the Bundeswehr Disciplinary and Complaints Court with the Federal Administrative Court if such appeal is permitted in the decision of the Bundeswehr Disciplinary and Complaints Court or by the Federal Administrative Court following an appeal against refusal of leave to appeal. (2) An appeal will only be permitted if 1. the matter of the appeal is of fundamental importance, 2. the court ruling contested deviates from a ruling of a Military Service Court, of the Joint Chamber of the supreme Federal Courts or of the Federal Constitutional Court and the ruling is based on this deviation, or 3. a procedural error is pleaded, and does in fact exist, on which the decision may be based. (3) The Federal Administrative Court will be bound by the leave to appeal granted by the Bundeswehr Disciplinary and Complaints Court. (4) An appeal should be filed in writing with the Bundeswehr Disciplinary and Complaints Court whose ruling is contested within one month after service of the ruling and the grounds for this appeal should be stated in writing within two months after service of the ruling. (5) In appeal proceedings, complainants must provided that they file an application be represented by a lawyer or a person who is qualified to hold judicial office in accordance with the German Judiciary Act or meets the requirements of Section 110, German Judiciary Act. Section 21 paragraph 2 and paragraph 3, second sentence will apply mutatis mutandis. (6) The Federal Administrative Court will decide on the appeal by issuing a ruling. If the appeal is wellfounded, the Federal Administrative Court can decide the matter itself on the merits or set aside the court ruling contested and refer the matter back to the Bundeswehr Disciplinary and Complaints Court for the purpose of conducting other hearings and taking a decision. Section 22b Appeals Against Refusals of Leave to Appeal (1) If the Bundeswehr Disciplinary and Complaints Court has refused leave to appeal, the complainant

11 Page FMOD Gazette (Translation) No. 1 and the Federal Ministry of Defence will have the option to file an appeal with the Federal Administrative Court against refusal of leave to appeal. Section 22a subsection (5) will apply mutatis mutandis. (2) An appeal against refusal of leave to appeal should be filed in writing with the Bundeswehr Disciplinary and Complaints Court within one month after service of the ruling and the grounds for such appeal should be stated in writing within two months after service of the ruling. When stating the grounds, the fundamental importance of the appeal matter must be explained, or the decision from which the court ruling deviates or the procedural error must be designated. (3) Filing an appeal against refusal of leave to appeal will suspend the finality of the contested court ruling. (4) If the Bundeswehr Disciplinary and Complaints Court does not take remedial action to address the appeal against refusal of leave to appeal, the Federal Administrative Court will decide by issuing an order, with a staffing that does not contain honorary judges. The order must state the grounds on which it is based. The dismissal of the appeal against refusal of leave to appeal by the Federal Administrative Court will render the ruling of the Bundeswehr Disciplinary and Complaints Court final. (5) If remedial action is taken to address the appeal against refusal of leave to appeal or if the Federal Administrative Court permits the appeal, proceedings of appeal against refusal of leave to appeal will be continued as appeal proceedings. In this case, the grounds of the appeal should be stated in writing within one month after service of the decision. This information must be pointed out in the ruling. Section 23 Preliminary Administrative Court Proceedings (1) If recourse to the administrative courts is available for legal action in connection with a service status, complaint proceedings will take the place of preliminary proceedings. (2) In these cases, a complaint may also be lodged with the agency whose decision is contested. If this agency deems the complaint to be well-founded, it will remedy the complaint. Otherwise, it should refer the complaint to the agency with the competence to decide it. (3) Lodging a further complaint will not be permissible. (4) For those cases where he would be responsible for deciding complaints, the Federal Minister of Defence may transfer the decision by general decree to the agency that has taken the contested measure or to other agencies. The decree must be published. (5) Legal action against decisions of the Federal Minister of Defence will not be permissible until he has decided a complaint anew. (6) The complaint will have a suspensive effect. The suspensive effect will not apply to decisions on the commencement, conversion or termination of a service status. In all other respects, the provisions of Section 80 subsections (5), (7) and (8), German Code of Administrative Court Procedure will apply mutatis mutandis. (7) Section 18 subsection (3) will apply mutatis mutandis. Section 23a Supplementary Provisions (1) To supplement the provisions of this Act, the provisions of the German Military Disciplinary Code 3), especially those on the inspection of records, bias of disciplinary superiors in charge of taking the decisions, the binding effect of actual findings of other decisions, compensation for witnesses and experts and reopening of cases, will apply mutatis mutandis. (2) In addition, in court application proceedings and in proceedings referred to in Sections 22a and 22b above, the provisions of the Code of Administrative Court Procedure and of the Judicature Act will apply mutatis mutandis, provided that this does not conflict with the specific nature of complaint proceedings. (3) Section 152a, Code of Administrative Court Procedure will apply mutatis mutandis to complaints against violations of the right to a fair hearing. Section 24 (Entry into Force)