Transfer agreement

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The transition agreement - actually: the agreement to regulate issues arising from the war and the occupation (in the amended version according to List IV of the protocol on the end of the occupation regime in the Federal Republic of Germany signed on October 23, 1954 in Paris ) - is of May 26, 1952 one of several additional contracts of Germany Treaty between the Federal Republic of Germany and the three Western powers ( France , United Kingdom and United States ) at the end of the Western Allied occupation regime over the western part of Germany were agreed. The transition treaty came into force together with the Germany treaty and simultaneously with the repeal of the occupation statute on May 5, 1955. It regulated the continuation of legal provisions , administrative measures and judgments that had been issued by the occupation authorities and allowed the Federal Republic of Germany and its countries to repeal or change them under certain conditions. Among other things, he also removed the existing restrictions on the German judiciary with regard to the prosecution of National Socialist crimes . As a result of the transition agreement, occupation law was largely replaced by federal law .

On September 28, 1990, it was agreed that the transition treaty together with the Germany treaty would be suspended as a result of the signing of the two-plus-four treaty with effect from the date of the unification of Germany , October 3, 1990, and expressly excluded with the entry into force of the latter Force was set. However, some of the provisions made in the transition agreement remain in effect.

The first part is still valid: Article 1, paragraph 1, sentence 1 to "... to repeal or amend legislation" as well as paragraphs 3, 4 and 5, Article 2, paragraph 1, Article 3, paragraph 2 and 3, Article 5, paragraph 1 and 3, Art. 7 Paragraph 1 and Art. 8. Third part: Art. 3 Paragraph 5 Letter a of the Appendix, Art. 6 Paragraph 3 of the Appendix. Sixth part: Art. 3 Para. 1 and 3. Seventh part: Art. 1 and Art. 2. Ninth part: Art. 1. Tenth part: Art. 4.

content

The Allied Control Council , the Allied High Commission , the High Commissioners of the three Western Powers , the military governors of the three Western Powers and their armed forces, including the auxiliaries of other powers, were named as occupation authorities .

The transition agreement contained many detailed provisions on obligations of the Federal Republic of Germany to make reparation , which would normally have to be regulated in a peace treaty . With the unification of the two German states in 1990 , the "continued validity, in particular, of the restitution law provisions and their extension to the territory of the former GDR after the conclusion of the 2plus4 contract " had to be clarified.

Article 3 (3) of the treaty provided that offenders convicted or acquitted by British, French or US courts could no longer be brought to justice in Germany for the offenses in question, even if proof of guilt would have been possible later. Due to the Allied pardon practice and judgments in the absence of the accused - who were protected from extradition by the Basic Law - there were therefore cases in which high- ranking SS officers appeared in court as witnesses against subordinates who were sentenced to long prison terms as a result, while the commanders were free to leave the courtroom.

The Franco-German Supplementary Agreement to the Transitional Agreement, ratified on January 30, 1975, finally allowed such proceedings to be resumed in the Federal Republic. The additional agreement called "Lex Klarsfeld" had already been signed four years earlier, on February 2, 1971, after difficult negotiations. The spokesman for the blockade against ratification was the FDP foreign politician Ernst Achenbach , himself involved in the crimes of the German occupation in France as an embassy employee at the time . Only after this delay had led to a scandal - Beate Klarsfeld had tried with some French to kidnap the former SS-Obersturmbannführer Kurt Lischka to France, where a life sentence awaited him because of his involvement in carrying out the Holocaust - the German Bundestag passed it Supplementary agreement. This agreement between the Federal Republic of Germany and the French government on the prosecution of certain crimes came into force on April 15, 1975. However, there were seldom new charges, as many crimes were now statute barred or the perpetrators were incapacitated or dead.

Legal consequences from Article 7 (1) of the transfer agreement

Contrary to the claims of revisionists , who allude to an Allied codification of history, Article 7 of the transition agreement has no effect on the teaching content of the ministries of education, nor does it prohibit the modification and resumption of judgments and proceedings of the occupying powers or any other restriction of the Unity of Germany regained full sovereignty .

Art. 7 para. 1 transition agreement stipulates the legal validity of the decisions of the occupation courts and reads:

(1) All judgments and decisions in criminal matters that have been passed by a court or a judicial authority of the Three Powers or one of the same up to now in Germany or are passed later remain legally binding and legally effective in every respect under German law and are of the German authorities Treat courts and authorities accordingly.

Article 7 thus stipulates that the judgments and decisions of the Allied courts under German law remain legally binding and legally effective, i.e. they have the same effect as legally binding judgments by German courts. It follows that a renewed prosecution or resumption of the proceedings by German courts or authorities is excluded.

The same effect means determination of legal continuity, exclusion only takes place if double prosecution for the same offense (by German law) is excluded and there is no reason for reopening due to a legally invalid judgment. The facts determined in the process were not recorded, nor were the cultural authorities bound. A final judgment does not have any further effect. In particular, not all German authorities, especially the religious authorities, are bound by the facts established in the judgments.

Art. 2 para. 1 transfer agreement remains valid:

(1) All rights and obligations that have been established or determined by legislative, judicial or administrative measures of the occupation authorities or on the basis of such measures are and remain in force in every respect under German law, regardless of whether they are in agreement with others Legislation has been established or established. These rights and obligations are subject, without discrimination, to the same future legislative, judicial and administrative measures as similar rights and obligations established or established under German domestic law.

The corresponding measures of the occupation authorities are thus equated with the corresponding federal law, with the result that they can be repealed by the following federal law.

Contract reasons

The purpose of the contract was to ensure that the transition from allied occupation law to federal German law went smoothly. Since after the first federal elections on August 14, 1949, the first German Bundestag and the Bundesrat were constituted on September 7, 1949, this date had to be chosen because this was the day of the first meeting of the Bundestag and thus the first act of federal German legislation .

See also

Individual evidence

  1. ↑ BGBl. 1954 II, p. 157 ff. (202 ff.); 1955 II, p. 405.
  2. ↑ In addition to the transfer agreement, the Germany Agreement contains u. a. another “troop contract” (BGBl. 1955 II p. 321 ff.) and a “finance contract” (BGBl. 1955 II p. 381 ff.).
  3. ↑ a b Part I, Article 1, Paragraph 1 of the Transitional Agreement reads as follows: The organs of the Federal Republic of Germany and the Länder are authorized, in accordance with their powers as defined in the Basic Law, to repeal or change legal provisions issued by the occupation authorities.
  4. ↑ Federal Law Gazette 1990 II, p. 1387 .
  5. ↑ So Bruno Simma / Hans-Peter Folz , Restitution and Compensation in International Law. The obligations of the Republic of Austria after 1945 in the light of its foreign policy practice (= publications of the Austrian Commission of Historians; Vol. 6). Oldenbourg, 2004, ISBN 3-486-56691-1 , pp. 140 ff. With further references (for quotation see fn 506).
  6. ↑ Torben Fischer, Matthias N. Lorenz, Lexicon of “Coping with the Past” in Germany: Debate and Discourse History of National Socialism after 1945 - Culture and Media Theory , transcript Verlag, 2007, ISBN 3-899-42773-4 , p. 205 .
  7. ^ Ulrich Herbert, Wandlungsprozess in Westdeutschland , 2nd edition, Wallstein Verlag, 2002, ISBN 3-892-44609-1 , p. 233 .
  8. ↑ Creifelds-Kauffmann, keyword "transfer agreement"
  9. ↑ a b lexexakt.de: transfer agreement
  10. ^ German Bundestag : Part 1: New beginning on rubble (1949–1953) ( Memento from February 2, 2014 in the Internet Archive ), text archive of the Online Services Department, Parliamentary TV.
  11. ↑ Jarass / Pieroth , Rn 4 on Art. 125 GG with reference to BVerfGE 4, 178 (184); 11, 23 (28).

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