amnesty

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An amnesty ( old Greek amnēstia , forgetting, forgiving ', also abolition ) is a complete or partial remission of a sentence or a reduction in sentences for a large number of cases. An amnesty does not remove either the conviction or the guilt of the offender. In contrast to the pardon, the amnesty works beyond individual cases for whole groups of offenders.

Delimitations

In a narrower sense, the term amnesty refers to criminal law. A waiver of public law claims (e.g. tax (back) payments) is usually not subsumed under this. The same applies to the waiver of claims under private law.

Even leniency programs are usually not discussed under the term amnesty.

In individual cases it was not decided to mitigate the sentence, but only to delay the occurrence of the sentence. Whether this falls under the concept of an amnesty is controversial.

Problems of demarcation also arise with amnesty-like regulations by the executive. In many countries, including Germany and Austria, for example, the release of prisoners who fall on the post-Christmas period are brought forward to the time before Christmas in order to allow the released family members to celebrate; this is known as the Christmas amnesty.

A mixed form is the grace amnestiante ("grace amnesty"). This is a law-based grace regulation. However, only actions eligible for amnesty are legally defined. However, the decision to waive the penalty in individual cases is made by another state body. In France, for example, this is the President.

Another borderline case is conditional amnesty regulations and amnesties subject to committee approval. After the end of apartheid, the amnesty law in South Africa regulated that the amnesty should take place in individual cases subject to a positive vote by the truth commission .

If the number of beneficiaries of the amnesty is small, this is a borderline case for pardon.

In the context of arbitration, the parties to the dispute often submit to arbitration tribunals (e.g. in sports associations, clubs, parties). A lifting of sanctions for groups of people who have been decreed in the context of such arbitration proceedings is simply referred to colloquially as an amnesty. An example would be an “amnesty” of doping offenders by a sports association.

A cold amnesty is the case (mostly pejoratively and mostly in connection with dealing with Nazi crimes ) when a waiver of sanctions is based on the deliberate omission of a necessary legal order of criminal liability.

Distinctions

An amnesty can apply to all crimes and offenders ( general amnesty , outdated general pardon ) or it can be limited to certain groups of offenders and / or offenses . In the second case one speaks of a special amnesty . The transition between the terms and the special amnesty to pardon is fluid. The amnesty can apply to convicted perpetrators and / or to persons with ongoing investigative or criminal proceedings (procedural amnesty). Parole amnesty is a form of amnesty in which the sentences are not suspended, but converted into suspended sentences. The amnesty can be politically motivated (e.g. refer to politically motivated crimes) or result from non-political motives. It can be one-time or repeated at regular intervals. An example of regularly recurring amnesties are the so-called " septum amnesties ". These are traditional amnesty laws that have always been passed in France when the president is elected . The amnesty can be unconditional or conditional. In many cases, amnesties are linked to the amount of the penalty, for example, so that only minor offenses are amnestied. The requirement can also be linked to the person. It can be stipulated that only those who make a formal petition for clemency benefit from the amnesty. Particularly when amnesty announcements are made, the perpetrator is often required to cooperate ( self-disclosure in the event of tax offenses, positions with deserters or the like).

A distinction is possible according to the regulator. The amnesty can be regulated domestically or under an intergovernmental agreement. In a federal state, the amnesty can take place at the federal or partial state level. The amnesty can be decreed by the head of state or its parliament .

In terms of content, the following types of amnesty regulations can be distinguished.

Interstate Peace Amnesty

An intergovernmental peace amnesty is often issued after armed conflicts in order either to achieve impunity or to promote a desired process of reconciliation . It is often characterized by a decree formulated in a considerably inclusionist manner, which includes all acts within a period of time or up to a certain severity. Often these amnesty regulations are contained in armistice or peace treaties , which are intended to evade criminal prosecution of those who participated in the war and those involved in the war.

This form of amnesty has historically been limited in many ways to the effect that spies , traitors and deserters were excluded from it. War crimes and crimes against humanity have been excluded in many cases since the 20th century .

Pacification amnesty

Amnesties for pacification are often ordered after internal conflicts in states . This is especially true in civil wars . One example is the patent for the Duchy of Schleswig, relating to the amnesty of May 10, 1851, with which the Danish King Frederick VII offered an amnesty to most of the participants in the Schleswig-Holstein survey .

In many cases, such amnesties mainly affect political crimes. For example, in 1848, after the March Revolution , Prussia issued an amnesty for all "who have been charged or convicted of political offenses or crimes committed by the press".

Consolidation Amnesty

In the event of minor unrest or social changes, amnesty regulations are introduced that are intended to increase the acceptance of the government.

The amnesty in the GDR took place in 1960 with the aim of alleviating internal political tensions. After the popular uprising of June 17, 1953, the regime secured its power through a massive wave of repression. As a result, the number of citizens prosecuted for political reasons increased massively. With the amnesty the exorbitant number of the criminally prosecuted opponents of the regime was alleviated. 16,000 convicts and 70,000 citizens were affected.

Also the amnesty in the GDR from 28./29. October 1989 was supposed to ease the pressure to reform the SED.

In the Federal Republic of Germany, the Law on Exemption from Punishment 1970 StFG 1970 had the character of amnesty. Amnestied were not only offenses that were decriminalized by the law, but also other offenses that took place in the course of the student movement.

Upheaval amnesty

In times of political upheaval in revolutions, amnesties are usually proclaimed by the new rulers. For example, after the November Revolution, item 6 of the appeal “to the German people” by the “Council of People's Representatives” on November 12, 1918 resulted in a “revolutionary amnesty”: “Amnesty is granted for all political crimes. The proceedings pending because of such crimes are put down. "

It does not matter whether it is a move to democracy or dictatorship. For example, after they came to power , the National Socialists issued the amnesty of March 21, 1933. According to Section 1, the amnesty was "Crimes committed in the struggle for the national uprising of the German people, in preparation for them or in the struggle for the German clod".

Notamnesty

A “notamnesty” is an amnesty in response to an economic crisis and the associated increase in crime.

Examples are the amnesty relating to wood theft and forest crime in Prussia in 1848 or the amnesty relating to forest, hunting, fishing and field penalties in the Grand Duchy of Hesse .

After the Second World War, the changes to the StFG in 1949 and 1954 had the effect of a notamnesty. Amnesty was given to minor offenses that were committed “because the perpetrator found himself in an emergency through no fault of his own as a result of the war or the post-war period or because he wanted to remedy such an emergency for others”.

Resource amnesty

A completely different type of amnesty is due to lack of resources and is particularly common in times of war. In order to remedy the shortage of soldiers, amnesties were announced that were conditional on volunteering as soldiers. Examples can already be found in antiquity. In 480 BC, Athens offered an amnesty for the ostracized nobles. Their banishment would be lifted if they took part in the war against the Persians.

Such a mobilization amnesty was also decided in Germany when the First World War broke out. In the case of "voluntary" participation in the war, criminals fit for military service were given amnesty.

The counterpart, a de-mobilization amnesty, is also historically guaranteed. The “General Pardon” of the Prussian king of April 12, 1813, regulated an amnesty for all Prussian subjects who were in French-occupied territories if they go to Prussia within two weeks.

Fiscal amnesties have been known since the 20th century, i.e. amnesties that take effect provided that taxes are declared and subsequently paid.

Privilege Amnesty

A “jubilation amnesty” occurs on the occasion of a special event such as a memorial day.

Examples are the amnesties on the occasion of the birthday of the emperor in the German Empire or the "Rhineland amnesty" in 1936 on the occasion of the occupation of the Rhineland.

Five “jubilation amnesties” were issued in the GDR . On the 23rd anniversary of the founding of the state on October 7, 1972, the State Council of the GDR initiated the release of more than 30,000 prisoners (both political prisoners and prisoners for criminal offenses). Due to the amnesty on the 38th anniversary of the GDR in 1987, the occupancy of the prisons fell by more than 80%, from 32,500 prisoners to 5,300 prisoners.

Favor amnesty

One form of a privilege amnesty is a benefit amnesty. Here a dictatorship amnesties itself for the crimes it has committed.

In El Salvador , Parliament issued a general amnesty for all war crimes committed before 1992 as a result of the civil war (1980–1992). The amnesty was highly controversial internationally. Five days before the decree, many investigative commissions, including the Comisión de la Verdad para El Salvador , published their results. The latter had drawn up a list of 13,569 cases, some of which were serious war crimes and human rights violations . The impunity led to extreme domestic political tensions, some of which have persisted.

Similar problems exist in many Latin American countries. In the 1970s and 1980s, most of the countries there were ruled for a long time by right-wing military dictatorships . Almost all of them used violence to suppress the opposition. A common means of doing this was the secret abduction ( disappearance ) of unpopular people by members of the security forces who remained anonymous. The victims were mostly tortured and humiliated while imprisoned in secret prisons and, in many cases, were subsequently murdered (see Desaparecidos ). During the military dictatorship in Argentina from 1976 to 1983 alone, up to 30,000 people disappeared in this way without a trace. After the transition of states to democracy, mostly in the 1980s and 1990s, the prosecution of such crimes was prevented in many countries by general amnesty laws for the perpetrators (e.g. by Pinochet's amnesty law No. 2.191 of April 18 1978). In recent years, however, these have been retroactively repealed in several countries, so that numerous former dictators and torturers have now been punished or are still on trial.

Corrective Amnesty

An amnesty can be used to adapt the administration of criminal justice to the changed circumstances. This is what happened in South Africa and Argentina after the fall of the dictatorships.

To correct the law, an amnesty can be used to adapt the current legal situation (abolition or mitigation of the criminality of certain offenses). One such “reform amnesty” was the “Law on Partial Punishment” of September 28, 1990 on the occasion of the adoption of the Federal German criminal law in the former GDR. A rehabilitation amnesty is about general rehabilitation and simultaneous exemption from punishment.

No amnesties in the narrower sense are "injustice laws", with which penal norms are retroactively repealed, since they are now assessed as injustice. With these there is no criminal liability, the effect is therefore equivalent to an amnesty. Examples are the Rehabilitation Act of the GDR of September 6, 1990 or the "first law to rectify SED injustice (SED-UnberG)" of October 29, 1992.

Youth amnesty

A youth amnesty is an amnesty which, after the end of World War II and the collapse of the National Socialist state in the western zones, affected those who were born after January 1, 1919.

For the members of the respective vintages had from the year 1946 only a nominal affiliation with Nazi organizations no negative consequences more if this example, a study place at a university competed.

Conflicts

Amnesty regulations (depending on how they are structured) conflict with a number of principles.

Justice and the principle of equality

An amnesty treats people who have already served their sentence differently from those who benefit from the amnesty. This violation of the principle of equality is inherent in the amnesty. This also often violates the population's sense of justice . The vernacular formulates this case as "grace before justice".

The amnesties in the Federal Republic of Germany in 1949 and 1954, for example, clearly contradicted the principle of denazification and put political pacification above legal peace . Many of the amnesties were victims of the Nazi regime.

Incentive for future crime

Amnesties must not refer to criminal offenses that will only take place in the future in order not to render the criminal liability norm ineffective and thus to give the perpetrator a “blank power of attorney” for future criminal offenses. The conflict also arises from recurring amnesties. In France, for example, there has been an increase in road traffic offenses ahead of presidential elections. The citizens trust that the tickets will then be covered by the amnesty.

Situation in individual countries

Situation in Germany

for 1951 see u. a .: Post-war history of the Gestapo .

Federal law

An amnesty requires a parliamentary law . The legislative competence of the federal government results from the competing legislative competence in the field of criminal proceedings and the execution of sentences ( Art. 74 No. 1 GG). The Federal President has the right to pardon in individual cases ( Art. 60 (2) GG).

State law

Some state constitutions contain a legal reservation for amnesties. This applies to Art. 52 Para. 2 Constitution of the State of Baden-Württemberg , Art. 121 Para. 3 State Constitution of the Free Hanseatic City of Bremen , Art. 44 Paragraph 2 Constitution of the Free and Hanseatic City of Hamburg , Art. 36 Paragraph 2 Lower Saxony Constitution , Art. 59 Paragraph 2 Constitution for the State of North Rhine-Westphalia , Art. 103 Paragraph 2 Constitution for Rhineland-Palatinate and Art. 39 Paragraph 2 Constitution for the State of Schleswig-Holstein . Since the competing legislative competence lies with the federal government, the practical significance of these regulations is small.

Situation in Switzerland

The right to issue pardons is incumbent on the United Federal Assembly in a joint vote (BV Art. 157 para. 1 lit. c in conjunction with BV Art. 173 para. 1 lit. k). Offenders convicted by cantonal courts can be pardoned by the cantonal parliaments.

Situation in Austria

for the story see: Fighter amnesty .

Examples

Reich President Paul von Hindenburg issued general amnesties (the so-called Hindenburg amnesties ) in 1925, 1928, 1932 and 1934 . The first was the most extensive. It facilitated the emergence of National Socialism and the NSDAP. For example, as a result of this amnesty Hermann Göring was able to return to Germany.

In 1990 different types of amnesty for prisoners in the GDR were discussed.

During the Cuban Revolution , due to mass demonstrations, a general amnesty had to be issued for Fidel Castro , Che Guevara and other political prisoners.

In a 1971 uprising by inmates at Attica Correctional Facility in the United States, prisoners held hostage made several demands, including better conditions and amnesty for all prisoners. But after an officer who was overwhelmed during the capture of the prison suffered a double skull fracture and he succumbed to his injuries in the hospital, they demanded a general amnesty.

Switzerland has had the so-called tax amnesty since 2009 . It enables anyone who has evaded taxes in Switzerland to file a self-disclosure once in their life without penalty; the taxes must then be paid retrospectively for a maximum of ten years with interest.

literature

Web links

Wiktionary: Amnesty  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ The structure follows Franz Suss
  2. ^ Resolution of the Council of State of October 1, 1960. Journal I 533, quoted from p. 223.
  3. ↑ New Germany. 28/29 October 1990, p. 1, No. 1.
  4. ↑ Third law on the reform of criminal law (3rd StrRG) of May 20, 1970, Federal Law Gazette I, p. 505 ff.
  5. ↑ RGBl. I 134
  6. ↑ from June 26, 1848 - JMBl. 231
  7. ^ Of March 14, 1848, Grand Ducal Hessian Government Gazette. 1848, p. 67.
  8. ↑ §§2,3 StFG 1949, BGBl, p. 37 and § 3 StFG 1954 BGBl, p. 203.
  9. ↑ § 3 StFG 1954.
  10. ^ Frank Suss: Studies on Amnesty Legislation. P. 240.
  11. ↑ JMBl. 1914, p. 656, and Frank Suss: Studies on amnesty legislation. P. 240.
  12. ↑ Journal I, p. 1987.
  13. ^ Journal of the GDR 1990 I, 1459.
  14. ↑ Federal Law Gazette I, 1814.
  15. ^ Wolfgang Benz: Democratization through denazification and education. Federal Agency for Civic Education (bpb) , April 11, 2005, accessed on August 29, 2019 .
  16. ↑ Federal Constitutional Court, decision of 22 April 1953 to 1 BvL 18/52 = BVerfGE 2, 213 (for impunity Act 1949)
  17. ↑ Maunz / Düring Art. 74, Rn 71.
  18. ↑ Cf. Birger Dölling: Prison execution between the turnaround and reunification - criminal policy and prisoner protest in the last year of the GDR . Ch. Links Verlag, 2009, ISBN 978-3-86153-527-0 .