GRAFENWOEHR, Germany – The 7th Army Training Command’s (7ATC) Office of the Staff Judge Advocate (OSJA) possesses a unique responsibility of practicing U.S. military law in Germany, where the law of the land can present challenges not seen stateside.
However, because of the cooperation between the 7ATC OSJA and German courts, as well as the Polizei, Military police, district attorneys, and much more, the seemingly incomparable justice systems have maintained a partnership that ensures justice and the law are upheld for U.S. Soldiers in Germany.
“We have a legitimate criminal system in place here that may look a little different,” said Maj. Christopher Elder, Chief of Military Justice for 7ATC, “because it has different rules.”
“The first and probably the most important part is that we have a system in place that is based on the Status of Forces Agreement that describes how we, as the military, interact with our German counterparts when it comes to jurisdiction,” said Elder.
In cases involving U.S. Soldiers accused of committing crimes while in Germany, the decision for which country has primary jurisdiction is chosen by authorities from both countries to ensure the most appropriate legal authority oversees the case.
“So [a crime] happens, and then the prosecutors on both [U.S. military and German] sides look at the facts,” said Mechthild Benkert, a German attorney and Chief of Host-Nation Law for 7ATC. “They look at the situation, they look at the circumstances, they look at the law, and then they decide who has jurisdiction to actually prosecute the case. Soldiers will [generally] be under courts-martial and civilians will be under the German system…. This is kind of the rule of thumb.”
“I've been around for quite some time,” said Benkert, “and the cooperation between the military and the German side is really excellent. And if [the German authorities] ask questions, [we] pick up the phone, call somebody, and we clarify. It's a really good and collegial cooperation that we have had for 50 years.”
That being said, the process of trial for criminal cases under U.S. military and German law are each look very different and follow different rules, but both ultimately aim to pursue and provide justice.
For criminal cases, the U.S. military follows the Uniform Code of Military Justice (UCMJ) and the U.S. Constitution, while the German government follows the Strafgesetzbuch, the criminal law code of Germany, and Grundgesetz für die Bundesrepublik Deutschland, the Basic Law for the Federal Republic of Germany.
In practice, these two systems play out in very different ways.
From the start of a criminal investigation in Germany, the accused is put in pretrial detainment “if he or she is strongly suspected of having committed the offence and there is a ground for arrest,” such as risk of flight or danger of collusion for a maximum time of six months, depending on the severity of the alleged crime. The District Attorney is required to investigate the case from a neutral perspective to find evidence, and if they believe there is enough evidence to justify a trial then they forward the case to a judge. From this point, unlike the U.S. system, the judge is entirely responsible for how the case progresses. The judge can order new investigations or open a trial. From there, the judge chooses which experts and witnesses are necessary to hear, and the trial proceeds in a more “inquisitorial” manner as opposed to the “adversarial” nature of U.S. courts, according to Benkert, meaning the judge and prosecution are both neutral parties in the process. At the end of a German trial, both the prosecution and defense can request an appeal to attempt to change the sentence if they disagree. In the U.S. system, at the end of a trial the prosecution does not usually have the right to appeal.
This process also differs from the U.S. system in regards to issues like pre-trial confinement, a right to a speedy trial, double jeopardy, the importance of case law, the role of military chain of command, and more.
After a U.S. Soldier is accused of committing a crime in Germany, the German judiciaries and U.S. military decide which side has jurisdiction for the Soldier. If the U.S. military has jurisdiction, which is many times the case, then the Soldier’s chain of command can prefer charges against them, with guidance from the OSJA, determine how to prevent the Soldier from committing additional crimes, and to ensure they appear at a trial.
If necessary, pretrial restraint may consist of one or more of four options: conditions on liberty, restriction in lieu of arrest, arrest, or pretrial confinement (R.C.M. 304).
“In our system,” said Elder, “in order to put somebody in what we call pretrial confinement, we have a very high bar to get there. And the reason we have a high bar to put somebody in jail before trial is because we have all of these other mechanisms of controlling a Soldier and what they do and what they don't do that a civilian system does not have.”
Furthermore, there is no option for bail under UCMJ, unlike in either the U.S. or German civilian courts, dependent on the judge’s discretion.
The other pretrial restraints – conditions on liberty, restriction in lieu of arrest, and arrest – provide military officers options to control their Soldiers ranging from ordering Soldiers to refrain from specified activities, restricting Soldiers to remain within specified limits or locations, removing Soldiers from supervisory roles, prohibiting Soldiers from carrying weapons, and much more.
Military commanders have “the ability to restrict time, place, and movement.” Commanders also have the ability to implement Military Protective Orders.
During this pretrial period, evidence is thoroughly collected and witness testimonies are documented before the trial begins in order to expedite the process of trial, which means the pretrial process can sometimes take a very long time. Even translation of police and medical documents, if the incident occurred off-post, can cause the investigation period to last longer for U.S. Soldiers in Germany.
“For the German public,” Elder said, “they might see a lengthy pretrial process prior to court-martial and there's a couple of reasons [for that], one of which is the investigation itself. That's usually the longest period… because you've got two different law enforcement agencies looking into a crime, doing their investigative efforts. And then if you've got certain things that need to be tested at a lab, like [DNA or digital evidence,]” which generally takes a while to process.
Furthermore, the process of trial takes longer than the German system for multiple reasons. For a U.S. military court-martial, the prosecution and defense can each present evidence in an adversarial manner. They can also cross-examine all witnesses and experts. The prosecution and defense argue their positions with a strong reliance on case law (common law), which requires more specific research, whereas the German criminal code relies more heavily on statutes, according to Benkert and Elder. Also, the prosecution and defense can object to evidence or arguments from the other party throughout the trial.
All of these factors present a timing issue because of the U.S. Constitution, which guarantees U.S. citizens certain rights related to trial.
“You don't want to rush the investigation process,” said Elder, “because once the court-martial process starts, we have certain Constitutional rights that apply, like the right to a speedy trial.” This means once an accused is charged, the prosecution only has a short period of time to get the case to trial. The U.S. Constitution also protects citizens from double jeopardy, which means that no prosecution can charge the accused with the same crime again once they are found not guilty, even if new evidence is uncovered. Because of these reasons, it is essential for evidence and witness testimonies to be thoroughly and completely compiled before the trial starts, meaning the process often takes a longer time than in German courts.
“In our Constitution, we get one shot at it,” said Elder. “We have to get the investigation phase right the first time because we literally only get one shot at it, and there's a time factor.”
Ultimately, Benkert believes that both systems serve their purpose to provide justice for the people they represent, as well as their communities. “The aim for both systems is justice,” said Benkert. While we use different methods to achieve justice, both are founded in the tradition of the country, they are supported by the people, and they are aimed at achieving justice.