Repeal of Nazi injustice judgments

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The repeal of Nazi injustice judgments through the criminal rehabilitation of victims of justice during the Nazi era is part of the process of coming to terms with the Nazi past .

Unjust judgments in the time of National Socialism

The People's Court handed down more than 5,200 death sentences and an estimated 6,000 additional sentences with long prison sentences. Due to the destruction of documents, the exact numbers cannot be determined.

When it was founded as a special court in 1934, the People's Court was only responsible for high treason and treason . The jurisdiction was later expanded so that even a defeatist remark by this court could be punished and given a death sentence. According to the deputy attorney for the Reich, Heinrich Parrisius, the function of the People's Court was "not to judge objectively, but to completely destroy the opponents of National Socialism".

Even in the judgments of the lower special courts , the disproportionate nature of punishment and offense is striking. In the trial against Leo Katzenberger , the Nazi laws, which in themselves were already in violation of human rights, were excessively interpreted in order to arrive at the desired death sentence.

The files of all special courts have not been preserved; the number of wrongful judgments can only be extrapolated. According to recent research, the 34 special courts located in western Germany alone have pronounced at least 11,000 death sentences. Presumably, these courts also passed more than 200,000 judgments, in which the criminal liability could often only be justified by special National Socialist laws.

After all, the court courts set up in February 1945 imposed a further high number of death sentences, which also have not yet been precisely determined. Only by German military courts were probably 25,000 to 30,000 death sentences for military morale , desertion or war treason imposed on members of the Wehrmacht; more than 19,600 of them were verifiably executed. 

The defendants before one of these courts were cut off from elementary fundamental rights of criminal proceedings: judges' rejection, the right to submit evidence and the choice of defense counsel were restricted or suspended, oral hearings on the arrest warrant, preliminary judicial investigation, opening order and appeal bodies were abolished. Deadlines could be minimized in order to make “ short work ”.

Many judgments of the ordinary criminal courts can also be described as unjust judgments, on the one hand, insofar as they go back to specific Nazi laws such as the treachery law , on the other hand, in certain cases (for example in the case of homosexuality), far higher penalties were imposed there than in the previous time the Third Reich.

The number of people who would have to be rehabilitated under criminal law can therefore not be estimated.

Tens of thousands of death sentences and far more injustice sentences with long prison terms have been pronounced by the courts of the Third Reich. Many of those convicted were declared in Germany and Austria for "forever dishonorable" and enemies of the people branded. In contrast to the countries later occupied by the Greater German Reich , where deserters were seen as resistance fighters as early as 1945, rehabilitation in Germany lasted until 2002 and Austria until 2005.

Her rehabilitation proved to be a lengthy undertaking. Instead of setting aside the verdicts and restoring the honor and dignity of the victims, an individual review was prescribed. Minor criminal offenses could mean that an unjust Nazi judgment was legally valid and the victim remained registered as a criminal record.

Repeal in Germany

West Germany until 1989

With the Proclamation No. 3 of the Allied Control Council of October 20, 1945, a reorganization of the administration of justice in the whole of Germany was proclaimed, "which is based on the achievements of democracy, civilization and justice". Convictions made under the Hitler regime for political, racial or religious reasons had to be overturned.

In the western zones of occupation , essentially corresponding state laws were passed, according to which a certain judgment could be overturned on application in individual cases. In the British occupation zone , the ordinance on granting impunity of June 3, 1947, and in Berlin the law on the reparation of National Socialist injustice in the field of criminal justice of January 5, 1951 applied.

Erich Ollenhauer's draft for a nationwide law to redress National Socialist injustice in the administration of criminal justice did not have a majority in the German Bundestag in 1950, as the law would also have rehabilitated the assassins of July 20, 1944 . Federal Justice Minister Thomas Dehler (FDP) , for example, protested against a general amnesty with the reference to “ legal security ”.

As a result of the different national legal regulations, Nazi injustice judgments were not or could not be overturned in all cases. For example, due to a federal law to clean up Bavarian state law since 1959, it was no longer possible to submit applications for the repeal of Nazi injustice judgments according to the reparation law that had been in force in Bavaria up to that point.

The necessary examination of individual cases often proved impossible because the files of the relevant court proceedings had been destroyed by the effects of the war or had been destroyed by the courts themselves at the end of the war. In other cases, the victims or their relatives missed an application because they did not know anything about the possibility of rehabilitation or saw no point in it, for example because witnesses for exculpation were no longer alive or, for example, resistance fighters viewed a conviction as positive evidence of their steadfastness and courage.

There were also of the West German courts by way of a retrial , only those sentences overturned that were issued against German nationals. A loophole remained for court rulings that were passed against other citizens in the areas occupied by the Germans, for example against Polish citizens after the German occupation . The law supplementing jurisdiction in August 1952 did not change this.

The legal situation was not adjusted until the end of the 20th century. The law applicable in the states of Hamburg, Lower Saxony, North Rhine-Westphalia, Schleswig-Holstein and Berlin for the elimination of unjust judgments of the National Socialists of 1990 required an application, on which judgments in criminal matters issued between January 30, 1933 and May 8, 1945 will be set aside could when they were based on acts that were mainly committed in opposition to National Socialism or that were only punishable according to the National Socialist view. The disproportion between minor offense and draconian punishment was then not taken into account. For example, the Kiel attorney general was only able to have the death sentence overturned in one of twelve proceedings. In 1997, two thirds of those sentenced to long prison sentences by the Kiel special court had not been rehabilitated.

In 1985, the German Bundestag attempted at least to collect the blatantly unjust judgments of the People's Court. With a unanimously passed resolution of January 25, 1985, it was established that the People's Court was a terrorist instrument to enforce the National Socialist arbitrary rule and that the decisions of the German Bundestag are not legally effective. The German Bundestag thus consciously opposed the case law of most of the high and highest courts in the Federal Republic of Germany, including the Federal Court of Justice .

East Germany until 1989

Proclamation No. 3 of the Allied Control Council of October 20, 1945 was also valid in the Soviet zone of occupation (SBZ). There, on July 30, 1946 , the Supreme Chief of the Soviet Military Administration (SMAD) issued Order 228 on “the nullity of judgments in political matters and the termination of criminal proceedings in cases of certain criminal acts committed before May 8, 1945 were ”, carried out by the German Central Administration of Justice . By September 1949, 1,485 unjust Nazi judgments were overturned. There was no repeal by law. In 1954, however, all orders of the SMAD were overridden by the Soviet Union, including order number 228. Since the GDR itself did not issue any corresponding regulations, no NS judgments could be overturned there.

Germany 1989 to 2009

The law on the repeal of Nazi injustice judgments in the administration of criminal justice of May 28, 1998 overturned some of the injustice judgments nationwide and made it possible to ignore minor criminal offenses when further Nazi injustice judgments were overturned. With the amending law of May 17, 2002, previously excluded groups of people, such as homosexuals, deserters, conscientious objectors, disruptors of the military and other victims of Nazi military justice , were rehabilitated across the board.

  • All judgments of the People's Court and the trial courts were then revoked .

In the draft law (BT-DRS 13/9747) for the (NS / SterilEntschAufhG), the decisions of the military courts in § 2 No. 3 NS / SterilEntschAufhG-E were also listed for the facts of conscientious objection, desertion and disruption of military strength. However, they were deleted at the last reading. It was not until 2002 that the law was changed in such a way that the judgments of the military courts, which are based on the offenses of the Military Criminal Code mentioned in the Annex to Article 1, Section 2, No. 3) No. 26a , have now been repealed . Judgments by other courts are overturned if they are based on one of the National Socialist decrees listed in the law. A minor actual offense is irrelevant. A financial compensation claim is not justified by the blanket annulment of the judgments.

On September 8, 2009, a draft law unanimously adopted by the German Bundestag overturned all convictions for war treason .

Repeal in Austria

In the tradition of pure legal positivism , the "Repeal and Recruitment Act" was created in 1945, which repealed all Nazi judgments against Austrians. However, this general amnesty was restricted by the fact that judgments in the military area were only overturned if the offense was "directed against National Socialist rule or the restoration of an independent state of Austria". Since it is impossible to provide such evidence for the above-mentioned facts, apart from individual cases, the judgments of this group remained upright. As a result, they had certain disadvantages in terms of pension law, mainly because the periods of imprisonment could not be taken into account when calculating pensions. Due to the legal imprecision, the situation arose that soldiers who deserted from the Wehrmacht and had been captured and sentenced again had no possibility of pension credit, but the SS guard who was guarding them had.

A paradox becomes apparent when dealing with resistance fighters and deserters in Austria: Officially, Austria sees itself as the 'first victim of National Socialism', as in the Moscow Declaration (1943), and the resistance of some is honored (e.g. that of the Catholic Franz Jägerstätter ). The order of greatest resistance, that which partisan subsequent Carinthian Slovenes , found no long acknowledgment, let alone appreciation or rehabilitation. The fact that deserters and other victims of Nazi military justice had not been rehabilitated by 2005 also met with little awareness of the problem.

In 2005, all judgments were overturned by the 2005 Recognition Act. Deserters and other victims of Nazi military justice or their descendants were granted one-time support, which continues to provide for a case-by-case examination.

literature

Standard works

  • Ilse Staff: Justice in the Third Reich; A documentation. Fischer, Frankfurt 1964.
  • Bernd Rüthers : The unlimited design. On the change in the private legal system under National Socialism. Habilitation thesis. University of Münster / Westf. Mohr Siebeck, Tübingen 1968.
  • Lothar Gruchmann : Justice in the Third Reich 1933-1940. 3. Edition. Oldenbourg, Munich 2001, ISBN 3-486-53833-0 .
  • Ernst Fraenkel : The Dual State. 1940. German: The dual state . 2nd Edition. European publishing company, Hamburg 2001, ISBN 3-434-50504-0 .
  • Nikolaus Wachsmann : Trapped under Hitler: judicial terror and penal execution in the Nazi state. Translated from the English by Klaus-Dieter Schmidt. Siedler, Munich 2006, ISBN 3-88680-828-9 .
  • Gerd Weckbecker: Between acquittal and the death penalty. The case law of the National Socialist special courts Frankfurt / Main and Bromberg. Nomos, Baden-Baden 1998, ISBN 3-7890-5145-4 .

For Germany

  • Federal Minister of Justice (Ed.): In the name of the German people. Justice and National Socialism - Catalog for the exhibition. Cologne 1989, ISBN 3-8046-8731-8 .
  • Hamburg judicial authority (ed.): Of habitual criminals, pests and anti-socials ... Hamburg criminal judgments under National Socialism. Hamburg 1995, ISBN 3-87916-023-6 (therein judgments from the Hanseatic Special Court).
  • Hans Wüllenweber: Special courts in the Third Reich. Forgotten crimes of justice. Frankfurt am Main 1990, ISBN 3-630-61909-6 (including political efforts to promote rehabilitation until 1990).
  • Andreas Scheulen: Exclusion of the victims - limitation of the perpetrators. For the compensation and provision of functionaries and victims of the Third Reich by the Federal Republic of Germany with special consideration of the victims of German military justice. BWV, Berlin 2002, ISBN 3-8305-0299-0 .
  • Jörg Friedrich: acquittal for the Nazi judiciary. The judgments against Nazi judges since 1948. Documentation. New edition. Berlin 1998, ISBN 3-548-26532-4 (therein NS-AufhG 1998 and amendment reasons of the legal committee).

For Austria

Individual evidence

  1. ↑ Ingo Müller : Murder in the Name of Right Berliner Zeitung , January 23, 2010.
  2. ↑ Ulrich Baumann, Magnus Koch: What was right then ... 'Soldiers and civilians before courts of the Wehrmacht. Berlin 2008, ISBN 978-3-89809-079-7 , p. 184.
  3. ↑ Hannes Metzler: Dishonored forever? . Vienna 2007, ISBN 978-3-85476-218-8 , pp. 169–198.
  4. ^ Proclamation No. 3 of the Allied Control Council Ordinance Gazette of the City of Berlin, Volume 1 / No. 11, October 25, 1945, p. 129.
  5. ↑ VOBl. 1947 p. 68.
  6. ↑ VOBl. I p. 31.
  7. ↑ BT print. 01/564 of February 15, 1950
  8. ↑ Norbert Frei : memory struggle. On the legitimation problem of July 20, 1944 in post-war Germany. Festschrift for Hans Mommsen on the occasion of his 65th birthday, Akademie Verlag, Berlin 1995. Pre-printed p. 669/670.
  9. ↑ Act to adjust the former Bavarian state law that has become federal law ( BGBl. 1959 I p. 678 )
  10. ↑ Law No. 21 for the reparation of National Socialist injustices in the administration of criminal justice of May 28, 1946, BayGVBl. 1946 p. 180.
  11. ↑ Law to supplement competencies in the areas of civil law, commercial law and criminal law (Competency Supplementary Act) of August 7, 1952 ( Federal Law Gazette I p. 407 ), Sections 17-19
  12. ^ Law to Eliminate National Socialist Judgments
  13. ↑ Gerd Weckbecker: Between acquittal and death penalty. The case law of the National Socialist special courts Frankfurt / Main and Bromberg. Nomos Verlagsgesellschaft, Baden-Baden 1998, ISBN 3-7890-5145-4 , p. 1.
  14. ↑ Answer of the Federal Government to the major question by the Member of Parliament Ströbele and the parliamentary group DIE GRÜNEN BT-Drucksache 10/6566 of November 26, 1986
  15. ^ Order of the Commander-in-Chief of the SMA Commander-in-Chief of a Group of Soviet Occupation Forces in Germany No. 228 Certified copy / translation, digitized in the Federal Archives , p. 256.
  16. ^ Draft of a law to repeal wrongful National Socialist judgments in the administration of criminal justice and of sterilization decisions of the former hereditary health courts BT-Drucksache 13/9774 of February 4, 1998, explanation, p. 6.
  17. ↑ Ralf Vogl: Piecework and displacement. Reparation of the National Socialist injustice to criminal justice in Germany. Berliner Wissenschafts-Verlag , 1997. ISBN 978-3-87061-652-6 , pp. 285-301.
  18. ↑ Hannes Metzler: Dishonored forever? . Vienna 2007, ISBN 978-3-85476-218-8 , p. 49.
  19. ↑ Focus : 64 years after World War II, “war traitor” verdicts are repealed from September 8, 2009, accessed on September 8, 2009.

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