Bundeswehr and Corona: The interests of the military are not sufficiently taken into account

dpa More than four years after a Bundeswehr soldier refused a Covid-19 vaccination, the Bavarian Supreme Court has overturned the defendant's acquittal. The judges in Bamberg referred the case back to the Schweinfurt regional court, where another criminal chamber will now have to deal with the matter again. The 36-year-old is charged with insubordination.

The Senate based its decision on a deficiency in the district court ruling. Accordingly, the Chamber in Schweinfurt would have had to weigh up the interests of the defendant with the interests of the state, which had to protect vulnerable groups such as soldiers. Since armed forces work closely together, their risk of infection is increased, said the presiding judge. The functioning of the Bundeswehr has constitutional status. The aim is to maintain the health and military capability of the troops.

The defendant asserted in court that the functioning of the armed forces had always been important to him, but that he had nevertheless acted according to his conscience. The self-described Christian believer said that his superiors did not listen to him at the time. Conscience is the sacred thing of man, “a field of dialogue between people and God”.

He acted conscientiously by not getting vaccinated, even if he was aware of the consequences. Since then, the man has no longer been allowed to enter the barracks, is not allowed to wear a uniform and only receives half of his salary, as his lawyer said.

According to the indictment, the soldier was deployed as a course participant at the Bundeswehr Infantry School in Hammelburg, Lower Franconia, at the beginning of January 2022. Because he did not get vaccinated against Covid-19 there, the first lieutenant was examined by the senior medical officer to determine whether there could be health reasons against vaccination.

Since this was not the case, the request for vaccination was repeated, but the soldier continued to refuse the injection. He was then sent back to his home company. Here too, according to the prosecution, the man refused the vaccination. The case ended up in court because Bundeswehr soldiers had to be vaccinated against Covid-19 during the pandemic - this is called the duty to tolerate.

The Bad Kissingen district court acquitted the defendant of the charge of insubordination in September 2023. In her decision, the judge referred, among other things, to the proportionality of the vaccination order in view of falling infection rates and known side effects.

The Munich Public Prosecutor's Office appealed against the decision, and the trial took place before the Schweinfurt Regional Court in January. This rejected the appeal on the matter. In the Chamber's opinion, the defendant did not act culpably because he was able to invoke freedom of conscience against the order and did so seriously and consistently.

The prosecution did not accept this verdict either and appealed to the Bavarian Supreme Court. In the past, several soldiers across the country were sentenced to fines for refusing to receive a Covid-19 vaccination.