Article 139 of the Basic Law for the Federal Republic of Germany

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Federal Law Gazette no. 1 dated 23 May 1949, p 18

Article 139 of the Basic Law for the Federal Republic of Germany , shortly Art. 139 of the Basic Law is a provision in the transitional and final provisions of the Basic Law for the Federal Republic of Germany .

It is:

The legal provisions enacted for the “liberation of the German people from National Socialism and militarism” are not affected by the provisions of this Basic Law.

There are corresponding provisions in the following state constitutions : Art. 184 BayVerf. , Art. 98 BerlVerf. , Art. 154 BremVerf. , Art. 158 HessVerf. and Art. 140 RhPfVerf .

meaning

When the Basic Law came into force at the end of May 23, 1949, the significance of Article 139 of the Basic Law was primarily that the legal provisions enacted for the "liberation of the German people from National Socialism and militarism" did not need to be compatible with the basic rights of the Basic Law and therefore could continue to apply. At the same time, the decisions of the Arbitration Chamber made on the basis of the relevant legislation could not be challenged with a constitutional complaint . What was meant were the German state law implementing laws, the basis of which were the Control Council Directives No. 24 and No. 38 issued in 1946 , such as the Liberation Act of the State Council of the American Occupation Area of March 5, 1946.

According to the denazification laws, it was possible, for example, to resume an already concluded arbitration chamber proceedings for an activity in the “Third Reich” to the detriment of the person concerned, although the Basic Law in Art. 103 (3) GG expressly forbids multiple punishments for the same offense. Those exposed to National Socialism within the meaning of Control Council Directive No. 38 such as activists, militarists and beneficiaries should not be able to invoke the basic rights of the Basic Law.

Since the end of the denazification, it has been disputed whether Art. 139 GG has any scope at all. Some believe that as a “special regulation under the law” it obliges militant democracy to take consistent action against neo-Nazism . However, the prevailing opinion rejects this, not least because of the GG commentary by Theodor Maunz and his student Roman Herzog .

literature

  • History of the creation of the articles of the Basic Law, on behalf of the resolution agency of the Parliamentary Council and the Federal Minister of the Interior on the basis of the negotiations of the Parliamentary Council. JöR New Series Volume 1 (1951), p. 897 ff.
  • C. Pawlita, F. Steinmeier : Comments on Art. 139 GG - An anti-fascist basic norm ? DuR 1980, p. 393.
  • Gertrude Lübbe-Wolff : On the importance of Article 139 of the Basic Law for dealing with neo-Nazi groups . NJW 1988, p. 1289.

Individual evidence

  1. ↑ Art. 184 BV
  2. ^ Constitution of Berlin - Section IX: Transitional and final provisions Website of the Senate Chancellery , accessed on November 7, 2019.
  3. ↑ expired on December 31, 1948, State Constitution of the Free Hanseatic City of Bremen Website of the Bremen Citizenship , accessed on November 7, 2019.
  4. ^ Art. 158 of the Constitution of the State of Hesse of December 1, 1946
  5. ^ Constitution for Rhineland-Palatinate of May 18, 1947
  6. ↑ See BVerfG, decision of September 27, 1951 - 1 BvR 70/51 .
  7. ↑ Control Council Directive No. 24: Removal of National Socialists and persons who are hostile to the efforts of the Allies from offices and responsible positions of January 12, 1946. verfassungen.de, accessed on November 7, 2019.
  8. ↑ Law No. 104 on the Liberation from National Socialism and Militarism of March 5, 1946, verfassungen.de, accessed on November 7, 2019.
  9. ↑ See denazification: The double judgment , Der Spiegel , September 4, 1957.
  10. ↑ Cf. Lars Winkler: Where there is no will, there is no way. About the careless handling of Art 139 GG , website of the working group of critical jurists at the Humboldt University of Berlin , accessed on November 7, 2019.
  11. ↑ Cf. Otto Köhler: Stump against right? Roman Herzog and Article 139 of the Basic Law , Friday February 4, 2005.